Delhi District Court
Parveen Kumar vs Anoop Rastogi And Anr on 31 August, 2023
1
IN THE COURT OF SH. DIVYANG THAKUR, LD. ADJ03,
SOUTHWEST DISTRICT, DWARKA COURTS, DELHI
MEMO OF PARTIES
Civil Suit No: 17285/2016
CNR Nos. : DLSW01-004578-2016
Sh. Parveen Kumar (Deceased)
Through LRs
(i) Smt. Kavita Godara
Wd/o Late Sh. Parveen Kumar
R/o Village Dhool Siras, New Delhi-110045
(ii) Ms. Vanshika Godara
D/o Late Sh. Parveen Kumar,
R/o Village Dhool Siras, New Delhi-110045
(Minor through mother and natural guardian Smt. Kavita
Godara)
(iii) Master Dev Godara
S/o Late Sh. Parveen Kumar,
R/o Village Dhool Siras, New Delhi-110045
(Minor through mother and natural guardian Smt. Kavita
Godara)
....Plaintiff through Lrs
VERSUS
(i) Sh. Anoop Rastogi
S/o Sh. Surat Ram Rastogi
R/o H. No. 137, Shrestha Vihar,
New Delhi
....Defendant no. 1
Suits no. 17285/16 and 17284/16
Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen
2
(ii) Smt. Pinki Devi
W/o Sh. Dharam Raj
R/o Village Dhool Siras
New Delhi-110045
....Defendant no. 2
AND
Civil Suits No: 17284/2016
CNR Nos. : DLSW01-004573-2016
Smt. Pinki Devi
W/o Sh. Dharm Raj
R/o Village Dhool Siras, Delhi
....Plaintiff
VERSUS
Sh. Parveen Kumar (Deceased)
S/o Sh. Hukam Chand
Through LRs
(i) Smt. Kavita Godara
Wd/o Late Sh. Parveen Kumar
....LR no. 1
(ii) Ms. Vanshika Godara
Minor D/o Late Sh. Parveen Kumar,
through her mother and natural guardian Smt. Kavita Godara
....LR no. 2
(iii) Master Dev Godara
Minor S/o Late Sh. Parveen Kumar,
through his mother and natural guardian Smt. Kavita Godara
....LR no. 3
Suits no. 17285/16 and 17284/16
Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen
3
Suit For Rectification Of Sale Deed Dated 28.01.2003, Delivery
And Cancellation Of Sale Deed Dated 27.12.2003 And Perpetual
Injunction / Suit For Possession And Permanent Injunction
Date Of Institution : 29.02.2008/30.10.2010
Date Of Final Arguments : 19.05.2023
Date Of Decision : 31.08.2023
JUDGMENT
Brief Background Of The Litigation
1. Vide present common judgment, I would decide two suits namely suit filed by Sh. Praveen Kumar against Sh. Anoop Rastogi and Smt. Pinki Devi which was originally filed before the Hon'ble High Court of Delhi and numbered as CS (OS) 385/2008 and titled as 'Sh. Parveen Kumar Vs. Sh. Anoop Rastogi and Anr.'; another suit filed by Smt. Pinki Devi against Sh. Praveen Kumar titled as 'Pinki Devi Vs. Parveen Kumar' which was originally filed before the Court of Ld. ADJ-03, South-West, Dwarka Courts, New Delhi bearing CS No. 337/2010. Thereafter, the suit of Pinki Devi pending before the Ld. ADJ-03 was transferred to the Hon'ble High Court by order of the Hon'ble High Court dated 24.08.2012 whereby it was ordered that in order to avoid the possibility of conflicting findings and because the subject matter of both the suits being the same and issues in both the suits are inter-related, it would be appropriate that both the suits are tried together and are disposed off by a common judgment. Thereafter, in accordance with the aforesaid order, both the suits were being tried before the Hon'ble High Court of Delhi. However, in view of the Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 4 notification no. 27187/DHC/Orgl.Dated 24.11.2015, both the suits were transferred vide order dated 29.02.2016 to the Ld. District Judge, South-West, Dwarka Courts, New Delhi. Thereafter, both the suits have been tried in accordance with law and the said trial has resulted in the present common judgment in both the suits.
2. To avoid confusion and as there are three parties in the main suit titled 'Parveen Kumar Vs. Anoop Rastogi', for the sake of clarity, the parties have been referred to as per their positions in the main suit bearing CS (OS) 385/2008 i.e. Parveen Kumar Vs. Anoop Rastogi and Anr. i.e. Parveen Kumar will be referred to as the Plaintiff, Anoop Rastogi as Defendant no. 1 and Pinki Devi as Defendant no. 2 throughout the present judgment.
Plaint Of The Suit Filed In The Year 2008 By Parveen Kumar against Anoop Rastogi and Pinki Devi bearing CS (OS) 385/2008, later on numbered as CS 17285/2016
3. The plaintiff Parveen Kumar had initially filed the present suit before Hon'ble High Court of Delhi on 29.02.2008 seeking (a) decree of rectification of sale deed dated 28.01.2003; (b) directions to Defendant no. 2 to deliver the sale deed 27.12.2003 and thereafter, cancel the same; (c) decree of perpetual injunction with respect to Kh. No. 241/2 situated in the Lal Dora of Village Dhulsiras, New Delhi and (d) costs of the suit.
4. Brief facts of the plaint which was filed before the Hon'ble High Court of Delhi are reproduced here as under:
(a) It is averred by the Plaintiff that his father and his family Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 5 owned and possessed residential property bearing Khasra no. 241/1 situated in the extended Lal Dora, abadi of Village Dhool Siras, New Delhi and Defendant no. 1 was owner in possession of Khasra no.
241/2 and 240 situated in the extended Lal Dora, abadi of Village Dhool Siras, New Delhi.
(b) It is alleged that Defendant no. 1 was not an original inhabitant of Village Dhool Siras and had purchased the said property only for business purposes by selling the large plot by sub-dividing into small plots and earning his profit in the venture.
(c) It is averred that around the end of the year 2002 and beginning of 2003, the Defendant was selling plots out of his land and at that time, Plaintiff was also looking to buy some land in the abadi of village for his future generations as the agricultural land of village Dhool Siras was about to be acquired for the Phase-II of Dwarka Sub- city. It is further submitted that since the Defendant no. 1 was offering to sell a plot of land adjacent to the land belonging to the family of the Plaintiff, therefore, Plaintiff grabbed the opportunity and purchased a plot of 729 sq. yards from Defendant no. 1 which was situated adjacent to Kh. No. 241/1 (owned by Sh. Hukam Chand, father of the Plaintiff).
(d) It is further stated that the sale deed was executed on 28.01.2003 against valuable sale consideration and bears document no. 563 in Book no. I, Volume No. 878 at pages no. 106 to 112, registered on 28.01.2003. It is further submitted that Defendant no. 1 had put the Plaintiff in possession of the purchased plot of land Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 6 measuring 729 sq. yards with the sides as under:
North: Plot of Sh. Hukam Chand East: Plot of Smt. Kalpana Pasricha West: Street (Rasta) out of Kh. No. 240 South: Street (Rasta) out of Kh. No. 240 and land of Kh. No. 240 and immediately the Plaintiff had put a boundary wall around the purchased plot of land and joined and amalgamated the purchased plot with Kh. No. 241/1 owned by the father of the Plaintiff and for that purpose, Plaintiff had demolished the southern boundary of Kh. No. 241/1 but only on the eastern side, a small portion of the intervening wall was left for marking out the purchased plot.
(e) It is averred that around 16.02.2005, Plaintiff and his family members were served with the summons from the Court of Revenue Assistant (Vasant Vihar) regarding some suit filed by Defendant no. 2 herein. It is stated that they were provided a copy of suit for ejectment from Khasra no. 241/2 which the Defendant no. 2 alleged to have purchased from the attorneys of Defendant no. 1. Plaintiff has further averred that on 16.02.2005, he came to know that there was a small separate parcel of land bearing Kh. No. 241/2 between Kh. No. 240 and 241/1 but the same was not mentioned in the sale deed dated 28.01.2003.
(f) It is pertinently mentioned in the plaint that although, the real intention of the Plaintiff and Defendant no. 1 was to enter into a sale purchase transaction for land which is situated adjacent to Kh. No. 241/1 but due to mutual mistake, one Kh. No. 241/2 was not Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 7 mentioned. Although, possession of Kh. No. 241/2 was personally handed over by the Defendant no. 1 to the Plaintiff at the time of sale and thus, sale deed does not express the real intention of the parties as Kh. No. 241/2 was mistakenly not detailed in the property conveyed.
(g) It is alleged that Defendant no. 2 is not a bonafide purchaser. The details of transactions that led to the execution of the sale deed dated 27.12.2003 in favour of Defendant no. 2 are detailed here as under :
(i) On 23.05.2005 i.e. after sale was executed by the Defendant no.
1 in favour of the Plaintiff, the Defendant no. 1 had executed a General Power of Attorney without consideration in favour of one Sh. Ram Kumar Sharma S/o Sh. Yad Ram R/o Village Bharthal, Delhi;
(ii) Thereafter, on 24.05.2003, said Sh. Ram Kumar Sharma had executed a similar General Power of Attorney in favour of Sh. Dharam Raj S/o Sh. Ram Mehar R/o Village Dhool Siras, Delhi. It is alleged that Sh. Dharam Raj is husband of the Defendant no. 2 and has conspired behind the fraudulent transaction;
(iii) Thereafter on 27.12.2003, the GPA holder Sh. Dharam Raj had executed a sale deed in favour of his wife i.e. Defendant no. 2.
(h) It is alleged by the Plaintiff that the suit of the Defendant no. 2 for ejectment is not maintainable in the Court of Revenue Assistant as the provisions of Delhi Land Reform Act, 1954 are not applicable and hence, the present suit.
Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 8 Proceedings of the Case (Suit filed by Parveen Kumar against Anoop Rastogi and Pinki Devi bearing no. CS (OS) 385/2008)
5. A perusal of the Court file reveals that the summons and notice to the application under Order XXXIX R 1 and 2 of CPC were ordered to be issued qua the Defendants on 29.02.2008 which were duly served upon Defendant no. 2, however, Defendant no. 1 was unserved. Thereafter, Written Statement was filed on behalf of the Defendant no. 2 before the Hon'ble High Court of Delhi and an application under Order I R 10 of CPC was filed by the Plaintiff and amended memo of parties was taken on record. Fresh summons were therefore, issued against Defendant no. 1 as per the amended memo which were duly served. Replication to the WS of Defendant no. 2 was not filed by the Plaintiff. Reply of the Defendant no. 2 to the application under Order XXXIX R 1 and 2 of CPC was already filed along with the WS and no rejoinder was filed by the Plaintiff to the said reply. Pleadings were concluded on behalf of Defendant no. 2.
6. Thereafter, WS was filed on behalf of Defendant no. 1 along with an application for condonation of delay in filing the WS, however, no reply was filed on behalf of Defendant no. 1 to the application under Order XXXI R 1 and 2 of CPC moved by the Plaintiff. WS of Defendant no. 1 was taken on record being unopposed by the Plaintiff. Therefore, pleadings were concluded on behalf of the parties and thereafter, admission-denial of documents was carried out wherein Ld. Counsel for Defendant no. 1 had admitted one document of the Plaintiff which was marked as Ex. P1 and denied rest of the Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 9 documents and therefore, admission-denial of documents was also concluded.
7. On the basis of pleadings, following issues were framed on 19.02.2010 :
(i) Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? (OPD-1)
(ii) Whether the suit is barred by limitation? (OPD-1)
(iii) Whether the Khasra No. 241/2 situated in the extended abadi of Village Dhulsiras was liable to be mentioned as part of the land measuring 729 sq. yards sold by Defendant no. 1 in favour of the Plaintiff in the sale deed dated 28.01.2003? (OPP)
(iv) Whether the sale deed dated 28.01.2003 is required to be rectified as prayed? (OPP)
(v) Whether the Defendant no. 2 is a bonafide purchaser for value of the suit and through sale deed dated 27.12.2003? (OPD-2)
(vi) Whether the sale deed dated 27.12.2003 is liable to be delivered up and cancelled? (OPP)
(vii) Relief.
No other issue arose or was pressed for. Matter was proceeded for plaintiff's evidence.
Evidence Led By The Parties (in the suit filed by Praveen Kumar against Anoop Rastogi and Pinki Devi bearing no. CS (OS) 385/2008)
8. On 27.09.2010, PW-1 Sh. Praveen Kumar tendered his evidence by way of affidavit Ex. PW1/A and relied upon documents Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 10 which were marked as Ex. P-1, Ex. PW1/1, Ex. PW1/2 and Ex. PW1/4 to Ex. PW1/8. PW-1 was cross examined and discharged on 15.09.2011.
9. Thereafter, an application under Section 24 of CPC was moved on behalf of the Plaintiff seeking transfer of suit no. 337/2010 titled "Smt. Pinki Devi Vs. Parveen" from Dwarka District Court to the Hon'ble High Court of Delhi for being consolidated and tried with the present suit which was allowed vide order dated 24.08.2012 and the evidence was to be led in common in both the suits.
10. Thereafter, Plaintiff Sh. Parveen Kumar passed away and an application was moved to bring on record the LRs of the deceased Plaintiff and the same was allowed vide order dated 06.05.2014 and Plaintiff no. 1 was appointed as natural guardian of the minor Plaintiff nos. 2 and 3 till they attained majority.
11. On 01.12.2014, PW-2 Sh. Ajeet Singh had tendered his evidence by way of affidavit Ex. PW2/A. Right of Defendant no. 1 to cross examine PW-2 was closed. Thereafter, the present matter was transferred to Dwarka District Courts for further proceedings.
12. Thereafter, the Court had observed that Defendant no. 1 had not appeared for more than a year and therefore, Defendant no. 1 was proceeded ex-parte vide order dated 24.01.2018. Thereafter, PW-2 was cross examined and discharged on 02.04.2018 and on the same day, PW-3 was examined, cross examined and discharged and the summoned record was exhibited as Ex. PW3/A. PW-4 was also a summoned witness and he was examined, cross examined and Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 11 discharged on 29.05.2018 and the record brought by him was exhibited as Ex. PW4/1 (OSR).
13. No other witness was examined on behalf of the Plaintiff and PE was closed vide separate statement of Ld. Counsel for Plaintiff on 29.05.2018. Matter was proceeded for Defendant's Evidence.
14. On 10.09.2018, DW-1 Smt. Pinki Devi had tendered her evidence by way of affidavit exhibited as Ex. DW1/A and relied upon the following documents:
(i) Attested copy of Khata Katoni issued on 30.08.2008 as Ex.
DW1/1 (objected to by Ld. Counsel for Plaintiff to the mode of proof);
(ii) Site plan as Ex. DW1/2 (objected to by Ld. Counsel for Plaintiff to the mode of proof);
(iii) Ak-Sijra as Ex. DW1/3 (objected to by Ld. Counsel for Plaintiff to the mode of proof);
(iv) Copy of demarcation as Ex. DW1/4 (objected to by Ld. Counsel for Plaintiff to the mode of proof and also being photocopy);
(v) Copy of order dated 04.08.2010 as mentioned in the affidavit as Ex. DW1/5 was de-exhibited;
(vi) Certified copy of demarcation report dated 22.11.2007 as Ex. DW1/6 (objected to by Ld. Counsel for Plaintiff to the mode of proof).
(vii) Will dated 24.05.2003 as Ex. DW1/7 (objected to by the Ld. Counsel for Plaintiff to the mode of proof).
Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 12 She had further relied upon documents which were already exhibited as Ex. PW1/7 and Ex. PW1/8.
15. Thereafter, she was cross examined and discharged. Applications were filed by the Defendant no. 2 under Order XVI R 1A read with Section 151 of CPC and for summoning official record from concerned department which were subsequently allowed vide order dated 16.01.2019 and Sh. Dharamraj was examined as DW-2 in the present suit.
16. On 16.01.2019, DW-2 Sh. Dharamraj had tendered his evidence by way of affidavit which was exhibited as Ex. DW2/A. He was cross examined and discharged on 29.01.2020. On 02.03.2020, DW-3 Sh. Rakesh Kumar, Kanungo was examined, cross examined and discharged and the record brought by him was exhibited as Ex. DW3/1 (colly) (OSR). Thereafter, it was pointed out by the Counsels that in the connected matter i.e. CS No. 279/17 titled as Pinki Devi Vs. Chander Bhan, the demarcation report had already been exhibited and proved by the Plaintiff's witnesses PW4 and PW6 and the record sought to be proved had already been proved in the present matter as Ex. PW4/A and Ex. PW6/A in the connected case i.e. CS No. 279/17.
17. Therefore, the evidence of PW4 and PW6 recorded in the connected suit could be read as remaining Defendant's evidence in the present case as the same parties pertain to the official record. Therefore, DE stood concluded and matter was proceeded for final arguments.
Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 13 Suit Filed Before the Court of Ld. ADJ-03, South-West, Dwarka Courts by Pinki Devi in the year 2010 (CS No. 337/2010), later on numbered as CS 17284/2016
18. Meanwhile, during the pendency of the aforesaid suit filed by Praveen Kumar, Smt. Pinki Devi had filed a suit for possession and permanent injunction against Praveen Kumar before the Court of Ld. ADJ-03, South-West, Dwarka Courts, New Delhi. The same was filed on 30.10.2010. Brief facts of the said plaint are reproduced herein as under:
(a) That the Defendant no. 2/Plaintiff herein is the Bhumidhar/Owner of the residential plot comprising in Khasra No. 241/2 (0-5), situated in the extended Laldora abadi of Village Dhoolsiras, Delhi. It is further averred that the aforesaid residential plot has been purchased by the Defendant no. 2/Plaintiff vide registered sale deed dated 27.12.2003 and thereafter, mutation was also sanctioned in favour of the Defendant no. 2/Plaintiff by the revenue authorities.
(b) It is further submitted that the Plaintiff/Defendant herein Praveen Kumar is also the owner/bhumidhar of the residential plot comprising in Khasra No. 240 and is situated in the southern side of Defendant no. 2/Plaintiff plot comprising in Khasra No. 241/2 (0-5). It is alleged that the Plaintiff/Defendant herein had encroached upon the Defendant no. 2/Plaintiff land after purchase of the suit land vide registered sale deed dated 27.12.2003. It is further averred that the Defendant no. 2/Plaintiff apprehended about the encroachment on her plot no. 241/2 by the other adjacent plot holders also and thereafter, Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 14 the Defendant no. 2/Plaintiff had applied for demarcation of her plot to verify the facts. That thereafter, the Defendant no. 2/Plaintiff had got carried out demarcation of Kh. No. 241/2 on 19.05.2004 and in the said demarcation, it was revealed that the Plaintiff/Defendant had encroached on the portion to the extent of 161 ½ sq. yards out of plot no. 241/2.
(c) It is further alleged that the possession of the suit land had been taken by the Plaintiff/Defendant without the consent of the Defendant no. 2/Plaintiff. It is further submitted that the Defendant no. 2/Plaintiff had requested the Plaintiff/Defendant to hand over the peaceful possession to her but the Plaintiff/Defendant refused to hand over the same. Aggrieved, Defendant no. 2/Plaintiff had filed a suit under Section 84 of Delhi Reforms Act for getting the possession of the suit property on 28.01.2005 before the Court of SDM/RA, Vasant Vihar, Sub-Division, Kapashera, Delhi. Therein, the Plaintiff/Defendant had appeared and filed the Written Statement and many objections qua limitation and jurisdiction were taken by the Plaintiff/Defendants.
Thereafter, in that suit, the Plaintiff/Defendants had moved an application under Order VII R 10 of CPC for return of the plaint on the basis of lack of jurisdiction to entertain the suit land in the Revenue Court. Thereafter, reply and arguments were filed on behalf of the parties in that matter and then Ld. SDM, Vasant Vihar vide order dated 04.08.2010 had allowed the Plaintiff/Defendant's application and returned the plaint under Order VII R 10 of CPC.
(d) It is further alleged that the Plaintiff/Defendant had rejected all Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 15 the humble requests of the Defendant no. 2/Plaintiff to handover the physical possession of the suit land and claiming himself to be in possession of his land in Khasra No. 238.
Consequently, the Defendant no. 2/Plaintiff has filed the present suit for possession and permanent injunction. Proceedings of the case (Suit filed by Pinki Devi against Parveen Kumar in the year 2010)
19. A perusal of the Court file reveals that the summons and notice to the application under Order XXXIX R 1 and 2 of CPC were ordered to be issued qua the Plaintiff/Defendants herein on 13.12.2010. Thereafter, Written Statement was filed on behalf of the Plaintiff/Defendants herein along with the reply to the application under Order XXXIX R 1 and 2 of CPC. Arguments were heard on the application under Order XXXIX R 1 and 2 of CPC and vide order dated 04.11.2011, the said application was allowed and disposed off accordingly. Thereafter, Replication was filed by the Defendant no. 2. Pleadings were concluded accordingly.
20. In the WS filed by the Plaintiff Parveen Kumar, he had reiterated the contents of the plaint in the suit filed by him before the Hon'ble High Court of Delhi bearing CS (OS) 385/2008 and denied the averments of the Defendant no. 2 Pinki Devi.
21. On the basis of pleadings, following issues were framed on 10.02.2012:-
(i) Whether Plaintiff/Defendant no. 2 is entitled for decree and Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 16 possession, as claimed? (OPP)
(ii) Whether Plaintiff/Defendant no. 2 is entitled for relief for permanent injunction? (OPP)
(iii) Relief.
No other issue arose or was pressed for. Matter was proceeded for plaintiff's evidence.
22. Thereafter, the present suit was transferred to Hon'ble High Court of Delhi vide order dated 24.08.2012 in CS (OS) 385/2008.
Thereafter, an application was filed for the impleadment of LRs of deceased Praveen Kumar, however, no reply was filed on behalf of the proposed legal heirs as the said LRs were already impleaded in CS (OS) 385/2008. Therefore, the said application for impleading the LRs was allowed vide order dated 04.08.2014 and the widow wife, daughter and son were impleaded as legal heirs of deceased Parveen and the widow wife was also appointed as legal guardian of the minor daughter and son till they attain majority.
23. Thereafter, the present matter was transferred to the Court of Ld. District Judge, South-West, Dwarka Courts, New Delhi vide order dated 29.02.2016.
Amended memo of parties was filed on behalf of Defendant no. 2/Plaintiff herein.
24. It was clarified by the Court that connected suit titled "Parveen Kumar Vs. Anoop Rastogi and Anr." was treated as main suit and testimonies of Pinki Devi's witnesses were to be recorded in the main suit as DE. Evidence was to be read in common in both the suits as Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 17 they had been consolidated.
Contention Of Parties
25. Written arguments have been filed on behalf of the Plaintiff Late Sh. Praveen Kumar and Defendant no. 2 Smt. Pinki Devi.
26. Ld. Counsel for Plaintiff has submitted that it is the admitted fact that the Plaintiff was handed over the possession of the suit property which also contained part of Kh. No. 241/2 but due to the mutual mistake of the parties, the Khasra no. was not mentioned. He has submitted that the boundaries and the dimensions of the suit property which were sold by way of the sale deed in his favour have never been disputed by the Defendants and specifically Defendant no.
1. It has been further submitted that Defendant no. 1 has never stepped into the witness box to prove that there was no mistake on his part and his pleadings are not specific. It has been further submitted that it is the admitted fact that the transactions in favour of Defendant no. 2 were without consideration and therefore, the Defendant no. 2 cannot be said to be a bonafide purchaser. It is further submitted that the chain of documents propounded by the Defendant no. 2 are suspicious and have no value in the eyes of law and the same have been fabricated only in order to grab the property.
27. Ld. Counsel for Plaintiff has relied upon the judgments of Hon'ble Supreme Court of India in "Rameshwar Dueby and Ors. Vs. Masomat Asha Kaur and Ors. (1996) 6 AD SC 514; (1996) 11 SCC 160; (1996) SUPPL. 4 SCR 292; (1996) (6) SCALE 141; Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 18 LQ/SC/1996/1195" and in "Daya Singh Vs. Gurdev Singh (dead) by Lrs. (2010) 1 SCR 194". Ld. Counsel for Plaintiff has further relied upon the judgment of Hon'ble High Court of Madhya Pradesh in "Tulsiram Vs. Durgaprasad (2002) 1 JLJ 151; (2002) (2) MPLJ 435". He has further relied upon the judgment of Hon'ble High Court of Chhatisgarh in "Barat Ram Vs. Mahadev Through Lrs (2019) 4 CGLJ 123" and upon the judgment of Hon'ble High Court of Bombay at Nagpur in "Varsha Vs. Ghanshyam and Ors. (2021) 220 AIC 281"
and another judgment of Hon'ble High Court of Allahabad, Lucknow Bench in "Suraj Prasad Vs. Smt. Vandana Pitariya LQ/AIIHC/2021/17852."
28. Per contra, Ld. Counsel for Defendant no. 2 has argued that the Defendant no. 2 has been able to prove her case by proving the sale deed in her favour and that she was entitled to the relief prayed for. It was further submitted that the Plaintiff was unable to prove the mutual mistake, the onus of proof which was upon him, could not be discharged by him. He has relied upon the cross-examination of PW-1 to depose that there was no understanding between the parties as to the sale of Kh. No. 241/2 and therefore, the Plaintiff cannot seek to modify the terms of the sale deed with the relief of rectification and thereby, gain what is not granted to him by the instrument sought to be rectified.
29. Ld. Counsel for Defendant has further submitted that Ex. DW1/1 is a public document and the presumption under Section 41 of the Delhi Land Revenue Act shall operate in the favour of Defendant Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 19 no. 2 and also cited Section 44 of the Punjab Land Revenue Act. He has relied upon the judgments of the Hon'ble Punjab and Haryana High Court in 'Puran Singh Vs. Dalip Kaur', 'Harish Chander Vs. Ghisaram', 'Ranjit Singh Vs. Gram Sabha, Jalalpur' and 'Major Singh Vs. Mukhtiyar Singh', to submit that the said mutation entry in the Khata Khatauni will lead to a presumption of title in favour of Defendant no. 2. He has therefore, prayed that the suit of the Plaintiff be dismissed and the suit of Defendant no. 2 for possession and permanent injunction be decreed.
FINDINGS Issues no. (i) and (ii)
30. The onus of these issues was upon Defendant no. 1 who did not step into the witness box and in fact, did not lead any evidence. Therefore, the said issues are decided against Defendant no. 1 and in favour of the Plaintiff.
Issues no. (iii) and (iv)
31. Now, it is to be considered whether the Plaintiff can be granted the relief of the rectification of sale deed as prayed for by him.
32. The crux of the relief sought for is that the sale deed which is Ex. P-1 describes the property sold with only the Kh. No. 240 and it is the case of the Plaintiff that the same should be rectified and should read to include Kh. No. 241/2, so that the description of the property should read as "plot Kh. No. 241/2 and 240 measuring 729 sq. yards situated in the Ext Lal Dora Village, Dhulsiras, New Delhi-110045"
Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 20 instead of reading as "plot Kh. No. 240 measuring 729 sq. yards situated in the Ext Lal Dora Village, Dhulsiras, New Delhi-110045." It is the case of the Plaintiff in para no. 9 of the plaint that the real intention of the Plaintiff and Defendant no. 1 was to enter into a sale- purchase transaction for land situated adjacent to Kh. No. 241/1 but due to the mutual mistake, one Kh. No. 241/2 was not mentioned, although, the possession of the land which includes Kh. No. 241/2 was handed over to the Plaintiff.
33. Written Statement was filed by the seller of the property and party to the sale deed in question i.e. Defendant no. 1. In the same, the Defendant no. 1 denied that there had been a fraud or mutual mistake. However, he averred that as there was no single purchaser for the entire property, the Defendant no. 1 had to bifurcate and sell the plots and sell them to different purchasers. However, it was admitted by him that the Plaintiff purchased a plot measuring 729 sq. yards vide the sale deed in question.
34. Section 26 of The Specific Relief Act, 1963 is extracted herein as under:
"26. When instrument may be rectified.-(1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing [not being the articles of association of a company to which the Companies Act, 1956 (1 of 1956) applies] does not express their real intention, then-
(a) either party or his representative in interest may institute a suit to have the instrument rectified; or Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 21
(b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or
(c) a defendant in any such suit as is referred to in clause (b), may, in addition to any other defence open to him, ask for rectification of the instrument.
(2) If, in any suit in which a contract or other instrument is sought to be rectified under sub-section (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court may, in its discretion, direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value. (3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced. (4) No relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed:
Provided that where a party has not claimed any such relief in his pleading, the court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim."
35. In 'Subhadras Vs. Thankam (2010) 11 SCC 514', it was held by the Hon'ble Supreme Court of India that Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 22 "the provisions of Section 26 of the Act would be attracted in limited cases. The provisions of this Section do not have a general application. These provisions can be attracted in the cases only where the ingredients stated in the Section are satisfied. The relief of rectification can be claimed where it is proved fraud or mutual mistake of the parties that real intention of the parties is not expressed in relation to an instrument..........."
36. The first thing to be clarified is that the Plaintiff does not claim that any fraud has been played and nor are there any material particulars to infer the pleading of fraud, even if the pleadings are taken as a whole. The reading of para 9 of plaint would show that only the ground of 'mutual mistake' has been pleaded. Therefore, the rectification of the sale deed in the present case cannot be ordered on the ground of fraud. Consequently, it is to be now examined whether the Plaintiff has been able to establish his case that Kh. No. 241/2 was omitted from the sale deed due to a mutual mistake. Since, the Defendant no. 1, in his pleading, has refuted that there was any mutual mistake, or that Kh. No. 241/2 was contemplated to be sold to the Plaintiff by way of the sale deed Ex. P-1 in question, it has to be now seen whether the Plaintiff could establish his case through evidence.
37. In Aliyar v. Raju V. Vayalat (2016) SCC OnLine Ker 3366, Hon'ble High Court of Kerala has considered the meaning of the term 'mutual mistake' and observed that "12. What is relevant here is the factum of pleading and Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 23 proof of mutual mistake of the parties. It is pertinent to note that the expression "mutual mistake of the parties" is not defined under the Act. Section 2(e) of the Act says that all other words and expressions used in the Act, but not defined, and defined in the Indian Contract Act, 1872 have the meanings respectively assigned to them in that Act. We do not find a definition for "mutual mistake" in the Indian Contract Act as well. Section 20 of the Contract Act says that where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, then the agreement will become void. That provision is not applicable here as nobody has such a case.
13. The expression used in Section 26 of the Act, relevant for our purpose, is "mutual mistake of the parties". Black's Law Dictionary (8th Edition - page 1023) defines "mutual mistake" as a mistake in which each party misunderstands the other's intent - also termed as bilateral mistake. Another meaning given to the expression is that it is a mistake that is shared and relied on by both parties to a contract. Stroud's Judicial Dictionary of Words and Phrases (7th Edition - Vol.I, page 471) says that "common mistake" is synonymous with "mutual mistake". Nevertheless, some jurists notice a marked difference between these two terms. Cheshire, Fifoot & Furmston's Law of Contract classifies mistakes into three categories Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 24 (see - 12th Edition, Chapter 8 - page 229-230). We shall quote the relevant passage from the said seminal work:
"The classification adopted in this chapter must now be explained. If attention is fixed merely on the factual situations, there are three possible types of mistake:
common, mutual and unilateral.
In common mistake, both parties make the same mistake. Each knows the intention of the other and accepts it, but each is mistaken about some underlying and fundamental fact. The parties, for example, are unaware that the subject matter of their contract has already perished. In mutual mistake, the parties misunderstand each other and are at cross-purposes. A, for example, intends to offer his Ford Sierra car for sale, but B believes that the offer relates to the Ford Granada also owned by A. In unilateral mistake, only one of the parties is mistaken. The other knows, or must be taken to know, of his mistake. Suppose, for instance, that A agrees to buy from B a specific picture which A believes to be a genuine Constable but which in fact is a copy. If B is ignorant of A's erroneous belief, the case is one of mutual mistake, but, if he knows of it, of unilateral mistake."
14. In Section 26 of the Act, the expression "common mistake" is not used. Instead, the usage is "mutual mistake of the parties". However, there are reasons for viewing that Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 25 the usage "mutual mistake of the parties" occurring in Section 26 of the Act is synonymous with "common mistake" as commonly understood under the English Law. So, it must be established by pleading and proving that the appellant agreed to sell and the respondent agreed to purchase the land through Ext.A1, which is included in Ext.A7 assignment deed. It must also be established that the parties so intended before executing Ext.A1 and the intention could not be translated into words in the document.
15. The principle underlying in Section 26 of the Act has been lucidly stated by the learned authors Anand and Iyer in the commentary on the Specific Relief Act, 1963 (13th Edition, page 789) in the following words:
"The actual expression of a thought very often fails to express the whole thought, sometimes more may be expressed, sometimes less and sometimes; sometimes totally different may be expressed. When parties have come to contract, but have failed to express themselves correctly, and the mistake is a real one and mutual and can be established by satisfactory proofs, a court of equity, will reform the written instrument, so as to make it conformable to the precise intent of the parties. The real intention may have been misrepresented in writing, either by mutual mistake or fraud. Equity affords relief in either case, in Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 26 faith and confidence in the formation of contracts."
16. It is needless to restate that the courts exercising power under the Act have both legal and equitable jurisdictions. It is common knowledge that in our country we do not have Courts of Equity and Law Courts separately. The Act confers equitable jurisdiction on the civil courts for granting specific reliefs.
17. Essentials for claiming rectification of an instrument, as revealed by the precedents, can be summarised. Firstly, the relief will not be granted unless a completed agreement is reached prior to the written agreement, which is sought to be executed. In other words, if the negotiations leading up to the execution of the document were vague and inconclusive or if it is impossible to ascertain what was the intention of the parties and what they really meant, then the challenged instrument can only be said to represent the agreement that has been concluded. If there is no antecedent agreement proved, upon which a rectification can be based, the relief cannot be granted. Secondly, both the parties must have intended that the exact term of the prior agreement should be reduced to writing and this intention should remain unchanged up to the moment of the actual execution of the instrument. That is, if it is proved that the parties subsequently changed their original intention and that the instrument finally Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 27 represents the true intention of the parties, it becomes fatal to a suit for rectification. Thirdly, the evidence relating to mistake common to both the parties must be clear and the burden of proving this lies on the party praying for rectification. It is also settled that the mistake should be obvious and not a mere probability. Fourthly, a party should seek rectification of literal mistakes, so as to enable the parties to act according to their intentions already revealed clearly and unequivocally, so as to prevent them from nullifying their prior agreement."
38. Therefore, it is now to be considered whether the Plaintiff could discharge the burden of proving that there had been any mutual mistake which would justify the relief of rectification of the sale deed.
39. Certain portions of the cross-examination of PW-1 i.e. the Plaintiff Praveen Kumar and the attesting witness Ajeet Singh who was examined by the Plaintiff as PW-2 may be taken note of and are extracted herein below:-
Cross-examination of Plaintiff Praveen Kumar "XXXX by Shri Rajinder Mathur, ld. Counsel for defendant no. 1.
..............I had not seen the original title deeds of defendant no. 1 at the time of execution of the sale deed Ex. P-1. I did not ask defendant no. 1 to hand over the original title deeds of the suit property to me. The original title deeds of the Vendor of the suit Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 28 property are not in my possession even at present.......... .........It is correct that the sale deed Ex. P-1 was drafted and executed on our instructions i.e., on the instructions of myself and defendant no. 1..........
XXXX by Ms. Suman, Ld. Counsel for defendant no. 2 ..........The sale deed dated 28.01.2003 was in respect of 729 square yards of land. The said sale deed dated 28.01.2003 was in respect of land falling in khasra no. 240..........I did not know if khasra no. 241/2 is falling between khasra no. 241/1 and khasra no. 240. Defendant no. 1 had got measured 729 square yards of land which was purchased by me vide sale deed dated 28.01.2003. In the sale deed dated 28.01.2003, khasra no. is not rightly mentioned. However, area of the plot has been rightly mentioned in the said sale deed..........It is incorrect to suggest that when I purchased the property on 28.01.2003, I illegally encroached on khasra no. 241/2 on 16.01.2002. Defendant no. 1 never sold me land falling in khasra no. 241/2. He gave me possession of land touching the boundary of khasra no. 241/1.
Defendant no. 1 had delivered possession of land measuring 729 square yards adjourning to khasra no. 241/1........." Cross-examination of PW-2 Ajeet Singh "...........The sale deed was prepared by defendant no. 1, Ram Kumar Sharma and plaintiff. It is correct that the Khasra Number as mentioned in the sale deed was written down by the consent of the plaintiff and defendant no. 1.......... Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 29 As per the sale deed in the northern side the plot of Sh. Hukam Chand is in existence. I am not aware whether the plot kh. no. 241/2 is situated between the plot kh. no. 241/1 and 240........... It is correct that in the sale deed only one kh. no. 240 was mentioned. It is correct that it was settled in my presence that defendant no. 1 had sold only 729 sq. yds. to the plaintiff. At the time of execution of sale deed there was no discussion or mentioning between the plaintiff and the defendant no. 1 in regard to kh. no. 241/2. It is also correct that there was no deal of any kind for selling the kh. no. 241/2 between the plaintiff and defendant no. 1 at the time of execution of the present sale deed in question........"
40. The evidence of the PW-1 is crucial as the burden to prove the mutual mistake was firmly upon PW-1. In his affidavit, the Plaintiff reiterated the averments in his plaint. One of the first things to be noted is that it has been averred by the Plaintiff himself that his father owns Kh. No. 241/1 which is adjacent to the property purchased vide Ex. P-1. In this regard, the Khatauni of the said Khasra has also been placed on record. However, the PW-1 has also deposed that he did not see the original title deeds of Defendant no. 1 at the time of execution of sale deed. He also disclosed that even though, the sale deed records that the original title deeds have been handed over, but PW-1 never received the same. The aforesaid admissions considerably weaken the claim of the Plaintiff for rectification, since if the Plaintiff could prove that the title deeds of Kh. No. 241/2 had also been handed over, the Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 30 same would have gone a long way to establish that there was a meeting of minds between the Plaintiff and Defendant no. 1 for the sale of Kh. No. 241/2 in addition to Kh. no. 240. This fact also gains significance in light of the fact that present is a case where the Defendant no. 1 has not admitted the "mutual mistake" and it was left to the Plaintiff alone to discharge his burden of proving the same. The Plaintiff also further goes on to admit that the sale deed Ex. P-1 was drafted and executed on the instructions of both the Plaintiff and Defendant no. 1. Therefore, the possibility that there was an inadvertent omission to mention the Kh. No. 241/2 also becomes lesser. It is to be kept in mind that the present is not a case where the number of the suit property is mentioned incorrectly but rather one where the Plaintiff wishes to include a completely new Khasra number in the sale deed by claiming an omission.
41. The Plaintiff has further gone on to be cross examined by Defendant no. 2 wherein he disclosed that he did not know that Kh. No. 241/2 was falling between 241/1 and 240. Therefore, this is the clear admission that the Plaintiff and Defendant no. 1 never contemplated the sale of Kh. No. 241/2 since it is the Plaintiff's own case that he was not even aware about the existence of any such Khasra number at the time when the sale deed was executed. Therefore, the present is not a case of any misdescription of the property or a case of 'mutual mistake.' The Plaintiff has failed to prove that there was any agreement between him and Defendant no. 1 for the sale of Kh. 241/2. As explained by the Hon'ble High Court of Kerala Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 31 in Aliyar (supra), it is essential that the party claiming rectification prove the completed agreement before the written agreement was executed. The Plaintiff himself admits that the Kh. No. 241/2 was not in contemplation of the parties and therefore, there was no antecedent agreement as to the sale of land falling in Kh. No. 241/2.
42. The Plaintiff further deposes during the cross-examination that the Defendant no. 1 never sold him the land falling in Kh. No. 241/2. This further solidifies the point made above.
43. PW-2 was the attesting witness and usually, the attesting witness is presumed not to be having knowledge of the agreement and the surrounding circumstances. However, PW-2 has also deposed in his examination-in-chief on affidavit, that the negotiations between the Plaintiff and Defendant no. 1 took place in his presence. Therefore, his testimony gains significance. During his cross-examination, the PW-2 deposed that at the time of execution of sale deed, there was no discussion or mentioning between the Plaintiff and Defendant no. 1 in regard to Kh. No. 241/2 and in fact, there was no deal between the parties for the sale of any such Khasra number.
44. The aforesaid admission of PW-2 further exemplifies the fact that the present is not a case of mutual mistake whereby a Khasra number was omitted to be mentioned due to inadvertence or negligence of both the parties.
45. At this stage, certain judgments relied upon by the Ld. Counsel for Plaintiff may be taken note of. In 'Tulsiram Vs. Durga Prasad (cited by Hon'ble High Court of Madhya Pradesh) (2002) (2) MPLJ Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 32 435', the Hon'ble High Court had observed that the vendor himself had admitted in a proved letter that the subject of the sale was Kh. No. 93 and not Kh. No. 98 and this admission was vital in the Hon'ble High Court upholding the finding of mutual mistake. Needless to add that there is no such admission in the present case. Even though, the Defendant no. 1 did not step into the witness box and therefore, an adverse inference is usually drawn against such parties, however, in a suit for rectification of an instrument, it is the Plaintiff who has to initially discharge the burden.
46. In 'Baratram Vs. Mahadev through LRs (2019) 4 CGLJ 123', Hon'ble High Court of Chhttisgarh had found that there had been a mutual mistake as in that case, it was established due to the evidence of the Revenue record that the vendor had sold the entire land in his revenue account and therefore, his 'khata' had been closed. This led the Hon'ble High Court to find that it was established that the vendor had clearly agreed to sell his entire landholdings and in conjunction with other facts and circumstances, found that there had been a 'mutual mistake.' Therefore, the said judgment would not apply as there is no such evidence in the present case. The judgments of the Hon'ble High Court of Bombay in 'Varsha Vs. Ghanshyam and Anr. (2021) 220 AIC 281' and judgment of the Hon'ble High Court of Allahabad in 'Suraj Prasad Vs. Vandana Pitaria (2nd Appeal 280 of 2018)', would not apply as in those cases, the Court had found that it was the case of the misdescription of properties and not a case where the whole Khasra number had been omitted to be mentioned in the Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 33 sale deed. Therefore, on facts, those judgments would not apply. I find that the Plaintiff has not been able to make out a case for the rectification of sale deed.
In light of the above, the aforesaid two issues are decided against the Plaintiff and in favour of the Defendants. Issues no. (v) and (vi) in suit titled Parveen Kumar Vs. Anoop Rastogi and Anr. and issues (i) and (ii) in Pinki Devi Vs. Parveen Kumar.
47. The aforesaid issues are being decided together as the same are interconnected. As already noted, the Defendant no. 2 came into the picture after the execution of the sale deed Ex. P-1 and claimed that she had been sold a certain portion of the property being occupied by the Plaintiff by her husband who had in turn, purchased the property by way of GPA from one Ram Kumar Sharma who had in turn, purchased the property through a GPA sale from the original owner being Defendant no. 1. It is further claimed that after purchase of the property by the Defendant no. 2, she had apprehension of encroachment and therefore, a demarcation was carried out on 19.05.2004 and it was found that the Plaintiff had encroached on the portion to an extent of 161.5 sq. yards in Kh. No. 241/2. On these grounds, the Defendant no. 2 claims a decree of possession and permanent injunction for the property in Kh. No. 241/2 as shown in red in site plan filed by the Defendant no. 2 in her suit. On the other hand, the Plaintiff in his suit has pleaded that the said transactions vide which the Defendant no. 2 claims the property occupied by the Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 34 Plaintiff by virtue of the sale deed Ex. P-1 are a sham and void and qua the sale deed in favour of Defendant no. 2, the relief of a decree of cancellation of the said sale deed has been prayed for along with a decree of permanent injunction against Defendant no. 1 from dispossessing the Plaintiff.
48. The crucial pleadings of the Plaintiff in this regard may be noted.
"....5. That the defendant no. 1 put the plaintiff in possession of the purchased plot of land measuring 729 sq. yards with the sides as under:
North: Plot of Sh. Hukam Chand East: Plot of Smt. Kalpana Pasricha West: Street (Rasta) out of Kh. No. 240 South: Street (Rasta) out of Kh. No. 240 and land of Kh. No. 240 And immediately the Plaintiff had put a boundary wall around the purchased plot of land and joined and amalgamated the purchased plot with Kh. No. 241/1 owned by the father of the Plaintiff. For that purpose, Plaintiff demolished the Southern boundary of Khasra No. 241/1 but only on the eastern side a small portion of the intervening wall was left for marking out the purchased plot.
6. That the Kh. No. 241/1 is shown in yellow colour and purchased plot of land is shown in blue colour in the site plan annexed herewith. And the Plaintiff continues to own & occupy the purchased plot of land alongwith his remaining land as a Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 35 single amalgamated unit..........
...........10. That the defendant no. 2 on the other hand is not a bonafide purchaser for value as being resident of the same village she was aware that the plot of land bearing Kh. No. 241/2 was within boundary and under use and occupation of the Plaintiff. The details of transactions leading to the sale deed dated 27.12.2003 in favour of the defendant no. 2 are detailed hereinbelow to show that the defendant no. 2 has not acquired rights to Kh. No. 241/2 bonafidely or in good-faith or for value:
a) On 23.5.2005 i.e. after sale was executed by the defendant no.
1 in favour of Plaintiff, the defendant no. 1 executed a General Power of Attorney without consideration in favour of one Sh.Ram Kumar Sharma S/o Sh. Yad Ram, R/o Village Bharthal, Delhi.
b) Thereafter on very next day i.e. on 24.5.2003 the said Sh. Ram Kumar Sharma executed similar General Power of Attorney in favour of Sh. Dharam Raj S/o Sh. Ram Mehar R/o Village Dhool Siras, Delhi. It is noteworthy that Sh. Dharam Raj is husband of the Defendant no. 2 and is the actual conspirator behind this fraudulent transaction of sale in favour of his wife.
c) Thereafter on 27.12.2003, the GPA holder Sh. Dharam Raj executed a Sale Deed in favour of his wife i.e. defendant no. 2. In this transaction the sale consideration of Rs. 1,00,000/- in cash has been shown which is unbelievable as the husband is executing sale-deed in favour of his wife.........." Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 36
49. In the plaint of the suit filed by Defendant no. 2, it has been pleaded that:
"1. That the plaintiff is the Bhumidar/Owner of the residential plot comprising in Khasra No. 241/2 (0-5), situated in the extended Laldora Abadi of Village Dhoolsiras, Delhi. That the above said residential plot has been purchased by the plaintiff vide registered sale deed dated 27-12-2003 and thereafter mutation was also sanctioned in favour of the plaintiff by the revenue authorities. The copy of the Khatouni is Annexure-A.
2. That the defendant is also the owner/bhumidhar of the residential plot comprising in Khasra No. 240 and is situated in the southern side of plaintiff's plot comprising in Khasra No. 241/2 (0-5). That the defendant has encroached upon the plaintiff's land as shown in red colour in the site plan after purchase of the suit land vide registered sale deed dated 27-12- 2003 and the site plan is Annexure-B and when the objection was raised upon the illegal and unauthorized encroachment the defendant told to the plaintiff that the defendant is in possession of Khasra No. 240 and not in Khasra no. 241/2 as shown in Ak- Sijra which is Annexure-C.
3. That as the plaintiff has apprehension about the encroachment on her plot no. 241/2 by the other adjacent plot holders also, the plaintiff had applied for demarcation of her plot no. 241/2 to verify the facts. That thereafter the plaintiff had got carried out demarcation of Khasra No. 241/2 on 19-5-2004 and the copy of Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 37 the same is Annexure-D and in the said demarcation it was revealed that the defendant had encroached on the portion as shown Red in the site plan to the extent of 161 ½ Sq. yards out of plot no. 241/2.
4. That the said encroachment has been committed by the defendant after the purchase of the plot in question by the plaintiff from the previous owner on 27-12-03 vide registered sale deed. That the possession of the suit land had been taken by the defendant without the consent of the plaintiff, surreptitiously and otherwise than in accordance with the due provision of law for the time being in force.........."
50. In the defence, the Defendant no. 2 examined DW-1 and DW-2 and some relevant portions of the cross-examination of DW-1 are extracted herein as under:
"I cannot read, write or understand English. I am aware of the contents of my affidavit Ex. DW-1/A. I am housewife. I am not aware as to how the consideration for the purchase of property by sale deed Ex. PW-1/8 was made. Vol. My husband may be aware of the same. It is correct that I have not paid any consideration to my husband. Vol. My husband is the karta- dharta. I have seen the property mentioned in Ex. PW-1/8. I had seen the said property before purchase of the same. I had not seen any documents of antecedent title of the said property. Vol. My husband must have seen the same. The property was earlier owned by Shri R.K. Sharma. I am not aware as to how Shri R.K. Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 38 Sharma was the owner of the said property. The name of Shri R.K. Sharma was mentioned in the revenue record maintained by halka patwari. I have filed the documents in this regard with my written statement............ I have not paid any sale consideration to Shri R.K. Sharma. Vol. My husband must be knowing about this thing........I am not aware as to when plaintiff erected the boundary wall...........I am not aware if any monetary transaction had taken place between defendant no. 1 and Shri R.K. Sharma............I am not aware if any receipt of money was prepared between R.K. Sharma and my husband. Vol. My husband may be aware of the same.........."
51. Relevant portions of the cross-examination of DW-2 are extracted herein as under:
"The area of the disputed plot Khasra No. 241/2 is 250 sq. yds. Smt. Pinki Devi has purchased 250 sq. yds. from me. I had purchased the plot from Shri R.K. Sharma s/o Shri Y.R. Sharma R/o Village Bharthal. Shri R.K. Sharma had purchased the plot from Shri Anoop Rastogi. The sale consideration is mentioned only in the sale deed executed by me in favour of Pinki Devi. I do not know whether the sale consideration is mentioned in the documents executed by Shri Anoop Rastogi in favour of Shri R.K. Sharma or in the documents executed by Shri R.K. Sharma in my favour. I have filed all the documents on the court record. No sale consideration was exchanged when I executed the sale deed Ex. PW-1/8 in favour of my wife Pinki Devi........ Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 39 Witness has been shown the certified copy of GPA executed by Shri R.K. Sharma in his favour and asked whether this the correct copy to which he states that it is a true copy. The said GPA is now exhibited as Ex.DW-2/P1. ........... I do not know if the GPA executed by Shri Anoop Rastogi in favour of Shri R.K. Sharma has been filed on record in the present case or in the case bearing CS No. 17284/16 titled Pinki Devi Vs. Parveen.
Question: Do you have the Power of Attorney executed by Shri Anoop Rastogi in favour of Shri R.K. Sharma in your power and possession?
Answer: I have filed all the documents which I had in my power and possession.
Question: Do you have any other document in your possession in relation to the suit property?
Answer: I may be having some documents but I do not know the nature of those documents.
I do not know the date on which Shri Anoop Rastogi executed the GPA in favour of Shri R.K. Sharma. I had seen the GPA, as well as the Agreement to Sell, Receipt, Possession Letter and WILL executed by Shri Anoop Rastogi in favour of Shri R.K. Sharma. I do not remember which of these documents were registered in the office of sub-registrar. I have purchased the entire property which was purchased by Shri R.K. Sharma from Shri Anoop Rastogi. The area mentioned in the documents Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 40 executed by Shri Anoop Rastogi in favour of Shri R.K. Sharma is 5 biswas.
Witness has been shown Ex. PW-1/6 and he states that he does not identify this document.
It is wrong to suggest that I am intentionally not identifying the document Ex. PW-1/6 as the area mentioned in this GPA executed by Shri Anoop Rastogi in favour of Shri R.K. Sharma is 220 sq. yds........
........I do not remember if any written bayana receipt or agreement was prepared or not. Prior to paying the bayana I had seen the title documents in favour of Shri R.K. Sharma. I might be having the agreement to sell at my home or I may have filed it on court record........
........ I do not know how much sale consideration was paid by Shri R.K. Sharma to Shri Anoop Rastogi. I can produce the Agreement to Sell executed between Shri R.K. Sharma and me with respect to the suit property. Sale consideration amount of Rs. 1,00,000/- was shown in the document executed by Shri R.K. Sharma in my favour. Vol. I had paid sale consideration more than Rs. 1,00,000/- to Shri R.K. Sharma. Receipt was issued by Shri R.K. Sharma but I am not sure whether it is kept in my house or in the office of Sub-Registrar, Kapashera. I had taken the original documents evidencing title of Shri R.K. Sharma from him at the time of execution of sale documents. I can produce the original documents/chain of documents in favour of Shri R.K. Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 41 Sharma who had sold the property to me............ ........I have no other documents in my possession in respect of suit property except those documents which have already been filed by me on the record of the suit............."
52. It is to be kept in mind that DW-1 is the wife of DW-2. It is to be remembered that the DW-1 in her plaint of her suit for possession and permanent injunction has not mentioned as to how her husband DW-2 came to be the owner of the suit property. The complete pleadings of Defendant no. 2 are silent in this regard. In the WS filed on behalf of DW-1 in the suit of the Plaintiff, the denials of the relevant pleadings are not specific at all. The relevant portions of paras no. 10 and 11 are extracted herein:
"....10. That the contents of para no. 10 of the plaint are wrong and denied. It is denied that the defendant no. 2 is not a bonafide purchaser for value as being resident of the same village she was aware that the plot of land bearing Khasra no. 241/2 was within the boundary and under use and occupation of the plaintiff. It is specifically denied that the defendant no. 2 has not acquired rights to Khasra no. 241/2 bonafidely or in good-faith or for value.
A.) That the contents of para no. A are wrong and denied. It is denied that the defendant no. 1 executed a General Power of Attorney without consideration in favour of one Sh. Ram Kumar Sharma S/o Sh. Yad Ram R/o Village Bharthal, Delhi. It is further submitted that the defendant no. 1 has executed the Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 42 General Power of Attorney in favour Sh. Ram Kumar Sharmas after having received the full consideration and the defendant no. 1 has handed over the physical possession to Sh. Ram Kumar Sharma.
B.) That in reply to para no. B it is submitted that the answering defendant and her husband were in need to purchase a residential plot and when Sh. Ram Kumar Sharma had told to Sh. Dharm Raj the husband of the defendant no. 2, the defendant no. 2 and her husband were agreed to purchase the same without any kind of any conspiracy. It is specifically denied that Sh. Dharm Raj husband of the defendant no. 2 is the actual conspirator behind this fraudulent transaction of sale in favour of his wife. It is further submitted that it is the plaintiff and his family members who wants to grab the valuable property of the defendant no. 2 without any title in the garb of sale deed in question.
C.) That in reply to para no. C it is submitted that being the GPA holder Sh. Dharmraj has executed the Sale Deed in favour of defendant no. 2 and there is nothing illegal in the said execution of the sale deed by a husband in favour of his wife.
11. That the contents of para no. 11 and its sub paras are wrong and denied.
A.) That the contents of sub para no. A of para no. 11 are denied for want of knowledge. It is further submitted that sale deed in favour of plaintiff is in regard to Kh. no. 241/1 measuring 729 Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 43 sq. yards and not for Kh. no. 241/2. That the said contents are clear from the body of the sale deed and the plaintiff only has concocted a false story in his mind only to grab the property of the defendant no. 2.
B.) That in reply to sub para B of para no. 11 it is submitted that Sh. Anoop Rastogi has executed GPA in favour of Sh. R.K. Sharma and being the attorney Sh. R.K. Sharma has executed the GPA in favour of Sh. Dharm Raj. That Sh. R.K. Sharma has handed over physical possession to Sh. Dharm Raj. It is denied that no actual money transaction had taken place. It is denied that the transaction was again not bonafide as the same took place within one day of previous transaction. It is specifically denied that the plaintiff was in possession. It is further submitted that after enquiring from every corner the defendant no. 2 and her husband has purchased the plot bearing Kh. no. 241/2 and thereafter the defendant no. 2 has got sanctioned the mutation in her favour in the revenue record. It is denied that the defendant no. 2 wanted to extract money from the plaintiff by blackmailing. It is denied that the transaction also cannot be termed bonafide as the same took place without there being handing over or taking over of possession. It is further submitted that the answering defendant has been in physical possession and in the year 2004 the plaintiff and adjacent plot holder have encroached upon the plot of the defendant no. 2 and thereafter a demarcation has been carried out by the Revenue Officials on Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 44 19-5-2004. That in the demarcation report dated 19-5-2004 it was revealed that the plaintiff and owners of the plot Kh. no. 241/1 and 238 have encroached on portion of the plot of the defendant no. 2 and the defendant no. 2 has filed a suit for possession against the plaintiff and other encroacher and the same is still pending in the court of SDM/RA, Vasant Vihar, South-West District, Delhi.
C. That the contents of sub para C of the para no. 11 of the plaint are wrong and denied. It is specifically denied that the sale deed executed by Sh. Dharam Raj in favour of defendant no. 2 is a sham and bogus document as the same is without consideration. It is denied that the defendant no. 2 and Sh. Dharm Raj have mentioned false recitals about handing over and taking over of possession. It is specifically denied that Sh. Dharam Raj has only created false documents for setting up false claims against the plaintiff for extracting money and is using his wife as a shield in this criminal act. It is further submitted that the plaintiff has no locus-standi to take objection in regard to any transaction between Sh. Dharm Raj and defendant no. 2. It is the plaintiff himself who tried to harass and blackmail to take the plot Kh. no. 241/2 from the defendant no. 2 by filing false and baseless suits and complaints. .............."
53. As would be clear from the aforesaid pleadings, the reply mostly consists of bland denials. Whereas, it is the specific averment of the Plaintiff that the Defendant no. 1 Anoop Rastogi had executed a Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 45 GPA and sale without consideration in favour of Ram Kumar Sharma who further ostensibly sold the same to Dharam Raj (DW-2) who then executed a sale deed without consideration in favour of Defendant no. 2, in reply it has been merely been denied that such is the case. Defendant no. 2 has not specified that if the consideration was exchanged between Defendant no. 1 Anoop Rastogi and R.K. Sharma and subsequently, between R.K. Sharma and Dharam Raj, then what was the amount of such consideration. The said pleadings of Defendant no. 2 constitute an implied admission of the pleadings of the Plaintiff due to the bland denials. It was open to Defendant no. 2 to plead that the sale had been executed in her favour by the Attorney of Anoop Rastogi or that Anoop Rastogi had granted GPA in favour of R.K. Sharma and also authorized him to appoint a further Attorney if so required, to execute a sale on behalf of Anoop Rastogi. In such a pleading, it would not have been required to plead that all transactions prior to the transaction of sale deed in favour of Defendant no. 2 took place for a consideration. However, no such plea was taken or could be taken in light of the fact that it was blandly averred that such transactions took place for a consideration, however, such consideration was never specified. In light of the above, it would very much appear that the transactions by Anoop Rastogi in favour of R.K. Sharma, R.K. Sharma in favour of Dharam Raj, and Dharam Raj in favour of Defendant no. 2 seem to be suspicious and a sham.
54. Coming now to the appreciation of the testimonies of DW-1 and DW-2 during the cross-examination which have been extracted Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 46 above, the most pertinent point to be noted is that both DW-1 and DW-2 have admitted that the sale deed dated 27.12.2003 which has been exhibited as Ex. PW1/8 executed by Dharam Raj in favour of his wife Defendant no. 2 was without consideration. The said admission by the executants of the concerned sale deed is completely fatal to the case of Defendant no. 2.
55. In 'Kewal Krishan Vs. Rajesh Kumar and others, (2021) SCC OnLine SC 1097', Hon'ble Supreme Court of India has observed as under:
"15. Admittedly, there is no evidence adduced on record by Sudarshan Kumar that his minor sons had any source of income at the relevant time and that they paid him consideration as mentioned in the sale deed. Similarly, no evidence was adduced to show that Sudarshan Kumar's wife had any source of income and that she paid consideration mentioned in the sale deed. An issue was specifically framed by the Trial Court on the validity of the sale deeds. There is a specific finding recorded by the District Court that there was no evidence adduced to show that Sudarshan Kumar's wife and minor children paid consideration as shown in the sale deeds. In fact, before the District Court, it was pleaded that Sudarshan Kumar's wife had brought some money from her parents. The District Court in paragraph 11 of the judgment held that no evidence was adduced to prove the said contention. Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 47 Therefore, there is a categorical finding recorded in the same paragraph by the District Court that Sudarshan Kumar, by taking advantage of the power of attorney, transferred the suit lands to his own minor sons and his wife without any consideration. The High Court has not disturbed the finding recorded by the District Court regarding the failure of the respondents to adduce evidence regarding the payment of consideration under the sale deeds dated 10th April 1981. The High Court in paragraph 29 merely observed that the sale consideration of Rs. 5,500/- and Rs. 6,875/- was not exorbitant and was not out of reach of Sudarshan Kumar's sons and wife. Perhaps, the High Court has ignored that it was considering a case of sale deeds of the year 1981 and that the purchasers under one of two sale deeds were minor sons of Sudarshan Kumar and it was not even pleaded that they had any source of income. The same is the case with the sale deed executed by Sudarshan Kumar in favour of his wife. Thus, undisputed factual position is that the respondents failed to adduce any evidence to prove that the minor sons had any source of income and that they had paid the consideration payable under the sale deed. They did not adduce any evidence to show that Sudarshan Kumar's wife was earning anything and that she had actually paid the consideration as mentioned in Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 48 the sale deed.
16. Section 54 of the Transfer of Property Act, 1882 (for short "the TP Act") reads thus:
"54. "Sale" defined.--"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made.--Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.--A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."
17. Hence, a sale of an immovable property has to be for a price. The price may be payable in future. It may be partly paid and the remaining part can be made payable in future. Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 49 The payment of price is an essential part of a sale covered by section 54 of the TP Act. If a sale deed in respect of an immovable property is executed without payment of price and if it does not provide for the payment of price at a future date, it is not a sale at all in the eyes of law. It is of no legal effect. Therefore, such a sale will be void. It will not effect the transfer of the immovable property.
18. Now, coming back to the case in hand, both the sale deeds record that the consideration has been paid. That is the specific case of the respondents. It is the specific case made out in the plaints as originally filed that the sale deeds are void as the same are without consideration. It is pleaded that the same are sham as the purchasers who were minor sons and wife of Sudarshan Kumar had no earning capacity. No evidence was adduced by Sudarshan Kumar about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of his wife and minor sons. Hence, the sale deeds will have to be held as void being executed without consideration. Hence, the sale deeds did not affect in any manner one half share of the appellant in the suit properties. In fact, such a transaction made by Sudarshan Kumar of selling the suit properties on the basis of the power of attorney of the appellant to his own wife and minor sons is a sham transaction. Thus, the sale deeds of Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 50 10th April 1981 will not confer any right, title and interest on Sudarshan Kumar's wife and children as the sale deeds will have to be ignored being void. It was not necessary for the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings."
56. The aforesaid judgment would squarely apply to the facts of the present case. Ex. PW1/8 clearly records that the sale consideration of Rs. 1,00,000/- has been paid. In fact, in the suit filed by Defendant no. 2 and specifically in para no. 1 of the said plaint, it has been specifically pleaded by the Defendant no. 2 that the suit property was purchased (emphasis supplied) vide the sale deed Ex. PW1/8. However, during the cross-examination, both DW-1 and DW-2 have admitted that there was no exchange of consideration. In such a case, the said sale deed has to be declared as void as being without consideration in light of the judgment of Hon'ble Supreme Court in Kewal Krishan (supra). Since the transaction was between parties who were closely related to each other, it was even more incumbent upon Defendant no. 2 to dispel the suspicion that the said transactions were not bonafide, however, by their own admission, no consideration was ever exchanged, though, a specific recital was recorded in the sale Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 51 deed. For these reasons alone, I find that the sale deed Ex. PW1/8 has to be declared as void and also that the suit of the Defendant no. 2 for possession and permanent injunction must also be consequently dismissed as the Defendant no. 2 cannot maintain her claim on the strength of a sale deed which is void. However, in addition to the above, there are further reasons as to why the sale deed in favour of Defendant no. 2 is not genuine and a complete sham transaction on basis of which no equity can be claimed by Defendant no. 2 before a Court of law. The said reasons are detailed below.
57. On a reading of the evidence of DW-1, I find that the said witness has claimed ignorance of all of the facts and stated that her husband DW-2 must be knowing about the same. She has disclosed that she had not seen any documents related to the suit property before the execution of the sale. She is not aware as to how R.K. Sharma became owner of the suit property. She is not aware as to who handed over the physical possession of the suit property to her or her husband. Pertinently, she also discloses that she is not aware if any monetary transaction took place between Defendant no. 1 Anoop Rastogi and R.K. Sharma. She is not aware if any receipt of money was prepared to witness the transaction between R.K. Sharma and her husband. In short, DW-1 has claimed ignorance even though, in her pleadings, that is, in her WS, has blandly denied the averments of the Plaintiff in a positive manner. This shows that the bland denials of Defendant no. 2 and her pleadings also have to be taken with a pinch of salt.
58. DW-2 who is the husband of DW-1 and claims to have Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 52 purchased the property from R.K. Sharma and sold the same to his wife Defendant no. 2, has also testified specifically that no sale consideration was exchanged when sale deed Ex. PW1/8 was executed in favour of his wife DW-1. He does not know whether any sale consideration was mentioned in the documents executed by Anoop Rastogi in favour of R.K. Sharma and in the documents executed by R.K. Sharma in his favour. It is incredible and completely unbelievable that DW-2 would be unaware about the sale consideration and not know whether the same has been mentioned in any document. On the other hand, he submits that he had seen the GPA, Agreement to Sell, Receipt etc. executed by Anoop Rastogi in favour of R.K. Sharma, however, he is unaware about the sale consideration in those documents. He specifically testifies that he had paid some bayana amount to R.K. Sharma but never discloses the sale consideration or even the bayana amount. He does not remember if any bayana receipt or any agreement was prepared or not for the sale by R.K. Sharma in his favour. He then testifies that he might be having the agreement to sell at his home or he may have filed the same on Court record. It is relevant to note that no such agreement to sell was ever produced showing the sale of property by R.K. Sharma to DW-2. Later on, he deposes that he can produce the agreement to sell executed in his favour. However, when he is recalled for cross- examination on 29.01.2020, he submits that he has no other documents in his possession except those filed on record. He later on also deposes that he had received the original documents in favour of Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 53 R.K. Sharma and that he can produce those documents which were executed by Anoop Rastogi in favour of R.K. Sharma, however, when he is recalled on 29.01.2020, he again deposes that he has no other documents in his possession.
59. One more aspect of the case may be noted here. DW-2 was confronted with the documents Ex. PW1/8, Ex. PW1/7, Ex. DW1/7, Ex. DW2/P1 which contained overwriting in the area and the number 5 seems to have been written over the number 2, thereby, purportedly showing the area under sale as 250 sq. yards instead of 220 sq. yards, whereas, in document Ex. DW-2/P1 which is the GPA in favour of Dharam Raj, there is no such overwriting. When the DW-2 was asked to explain the said overwriting, he gave no explanation and only denied the suggestion that he had interpolated the area by writing number 5 over the figure 2. The said circumstance casts further doubt over the chain of transactions which purportedly culminated in the sale deed in favour of Defendant no. 2. Though, it is claimed that Anoop Rastogi sold the property to R.K. Sharma and also that an agreement to sell was also executed in favour of Dharam Raj by R.K. Sharma, no such documents were produced by the Defendants to corroborate their statement. Even though, DW-2 deposed that he could produce the documents, no such disclosure was forthcoming. Defendant no. 1 was not summoned as a witness by Defendant no. 2 who could have testified as to the sale in favour of R.K. Sharma. Defendant no. 1 himself did not step into the witness box. Defendant no. 2 also made no efforts to summon R.K. Sharma nor did it come on Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 54 record that he had expired or could not be found.
60. In light of the above, the conclusion that the sale deed Ex. PW1/8 is a sham transaction gets strengthened and suit of the Defendant no. 2 has to be consequently dismissed as no case is made out for granting such a litigant the relief of possession and permanent injunction against the Plaintiff.
61. The question that remains is whether the Plaintiff can be granted the relief of injunction simpliciter as claimed by him as against Defendants no. 1 and 2. It is not disputed that a sale deed was executed in favour of the Plaintiff vide which a land area of 729 sq. yards was handed over to the Plaintiff and over which he took possession. This follows from the pleadings of the parties and the admissions of Defendant no. 1 and 2 in their Written Statements. Even though, the relief of rectification as pleaded is not made out, however, the Plaintiff has made out a case which establishes that by virtue of the sale deed, he is in possession of the property identified by the site plan successfully proved as PW-1/2 and having the dimensions and boundaries as mentioned therein. In the judgment cited by the Ld. Counsel for Plaintiff in Barat Ram vs. Mahadev by the Hon'ble High Court of Chhattisgarh (supra), the Hon'ble High Court was pleased to observe that a failure to rectify the deed does not extinguish title to the property which was really sold but was not properly described. In any case, the foregoing observations would show that since the transactions in favour of Defendant no. 2 were a sham, at least qua Defendant no. 2, the Plaintiff would be entitled to a permanent Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 55 injunction qua the suit property sold and possessed by him by virtue of the sale deed Ex. P-1.
62. The Ld. Counsel for Defendant has relied on various judgments already mentioned to aver that the mutation in favour of Defendant no. 2 would lead to a presumption of title in her favour. The said contention is misplaced, in as much as, when the sale in favour of the Defendant no. 2 has been examined and found to be void on merits, then the mere mutation of the property in favour of Defendant no. 2 in the revenue records will not confer any right, title or interest in her favour in the absence of the real transaction of the property. Reference can be had in this regard to the judgment of the Hon'ble Supreme Court in Ramlal Vs. Phagua (2006) 1 SCC 168. In that case also, the Hon'ble Supreme Court had found that the sale was not real and a sham and held that the mutation entry would not help the case of the party in whose favour a sham transaction had been created. Therefore, the submission of the Ld. Counsel for Defendant no. 2 fails in this regard also.
63. In so far as the demarcation report is concerned, the same pales into insignificance since it has been found that Defendant no. 2 was not a bonafide purchaser for good value and in fact, the said sale deed in her favour does not give her any right, title or interest in the suit properties. In such situation, the demarcation report would have no relevance.
Therefore, the aforesaid issues are decided in favour of the Plaintiff and against Defendant no. 2.
Suits no. 17285/16 and 17284/16 Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen 56 Relief
64. The following reliefs are therefore, granted to the Plaintiff in suit titled 'Parveen Kumar Vs. Anoop Rastogi':
(i) A declaration that the sale deed Ex. PW1/8 dated 27.12.2003 in favour of Defendant no. 2 is void;
(ii) A decree of permanent injunction qua the suit property as identified by the site plan Ex. PW1/2 and by the sale deed Ex. P-1 against the Defendants no. 1 and 2 and
(iii) Costs of the suit are also awarded to the Plaintiff.
Reliefs not granted expressly above to the Plaintiff are refused and in so far as those reliefs are concerned, suit is dismissed.
65. In so far as the suit of Defendant no. 2 titled 'Pinki Vs. Parveen' is concerned, the same is dismissed. No order as to costs.
66. Separate Decree sheets be prepared accordingly in both the suits.
67. Files be consigned to Record Room after due compliance. Digitally signed by DIVYANG
DIVYANG THAKUR
THAKUR Date:
2023.08.31
16:21:57 +0530
Announced in the open court (Sh. Divyang Thakur)
On 31.08.2023 ADJ-03, Dwarka
New Delhi
Suits no. 17285/16 and 17284/16
Parveen Kumar Vs. Anoop Rastogi and Anr. and Pinki Devi Vs. Parveen