Delhi District Court
Smt. Parkashi Devi vs Smt. Ram Bala on 25 November, 2022
IN THE COURT OF SH. SACHIN JAIN, ADDL. DISTRICT
JUDGE-02, SOUTH-WEST DISTRICT, DWARKA COURTS,
NEW DELHI
CS DJ ADJ No.516355/16
CNR No.DLSW010023042015
Smt. Parkashi Devi
w/o Late Baljeet Singh
r/o House no. I-13B, Gali no. 31,
Rajapuri, Uttam Nagar,
New Delhi-110059
.... Plaintiff
Versus
Smt. Ram Bala,
W/o Sh. Ram Jeevan,
R/o H.no. 17, Khasra no. 111/10,
Mahavir Enclave, Part-III,
New Delhi-110059
Also at:
House no. F-101, Gali NO. 82,
Mahavir Enclave, Part-III,
New Delhi-110059
... Defendant
Date of Institution 21.04.2015
Date When Reserved 22.11.2022
Date of Judgment 25.11.2022
JUDGMENT
1. Brief facts of the case are that the plaintiff filed the present suit for possession, permanent injunction, recovery of arrears of rent and damages on the ground that in the first week of July 2019 the defendant approached the plaintiff to sell out the property bearing house no. D-17, land area measuring 35 sq. CS DJ ADJ No.16355/16 1 yds., out of Khasra no. 110/10, situated in the area of Village Palam, Delhi State, Colony known as Mahavir Enclave, Part-III, New Delhi-59, new number F-101, Gali no.82, Mahavir Enclave, Part-III, New Delhi-59 (hereinafter referred as Suit property) which is shown in the red colour in the attached site plan.
2. It is further averred that after negotiations, the plaintiff purchased the property for a sum of Rs.2 lacs paid by him on 07.07.2009 to the defendant and the defendant executed the conventional set of documents i.e. GPA, agreement to sell, affidavit, receipt, possession letter and Will all dated 07.07.2009 which were duly notarized by the Notary Public in the presence of the witnesses and the defendant also handed over all the previous original documents of the suit property to the plaintiff and accordingly he became the absolute owner of the suit property.
3. It is further averred that at the time of execution of documents, the defendant requested the plaintiff to let out the suit property on rent and the plaintiff agreed for the same and it was orally agreed between the defendant and the plaintiff that the rent of the suit property was fixed at Rs.3300/- per month excluding water and electricity charges and it was also orally agreed to increase the rent by 10% after the expiry of every three years.
4. It is further averred that after the expiry of the three years in the month of July 2012, the rent was increased by 10% and the defendant lastly paid rent of Rs.3630/- to the plaintiff irregularly till February 2014 and thereafter stopped to pay the rent and has also not paid the electricity charges of Rs.2810/- on time which CS DJ ADJ No.16355/16 2 was ultimately paid by the plaintiff. Since the defendant is not paying the rent regularly hence, the plaintiff by legal notice dated 03.03.2015 terminated the tenancy of the defendant and directed her to hand over the vacant possession of the suit property on or before 02.04.2015 alongwith arrears of rent for the period of March 2014 to March 2015 to the tune of Rs.47,000/- and also the arrears of electricity charges of Rs. 2,810/-. However, the defendant instead of filing any reply to the legal notice, sent a fresh legal notice dated 09.03.2015 on the basis of false and fabricated facts which was duly replied by the plaintiff on 18.03.2015.
5. On the basis of above pleadings, it is the case of the plaintiff that the intentions of the defendant are not good as the defendant despite repeated requests, neither paid the arrears of rent nor vacated the suit property and instead threatened the plaintiff that she will sell the suit property to any third person. Hence, the present suit.
6. In pursuant to the summons issued to the defendant, the defendant filed her written statement and out rightly denied the tenancy of the plaintiff. It is the stand of the defendant that she is the absolute owner of the suit property purchased by her from one Sh.Pappu, s/o Sh.Karam Singh on 21.04.2006 for a consideration amount of Rs.30,000/- through registered GPA and since then, she is residing in the said property as sole, absolute and exclusive owner. It is further her stand that she was in a need of funds for the marriage of her daughter and as at that time she was a tenant in the house of the plaintiff, she disclosed the said CS DJ ADJ No.16355/16 3 fact to the plaintiff and the plaintiff agreed to help the defendant financially for the marriage of her daughter and she had taken a loan of Rs.1,52,000/- in two installments i.e. Rs.50,000/- and Rs.1,20,000/- respectively and in lieu of advancing the loan, the plaintiff and her son Pradeep had taken all the original documents of the property towards security for the repayment of the loan and also on the ground that the same are not safe in the house of the defendant and they shall keep the said documents in their safe custody and ensured that they will return the same as and when she needs documents.
7. It is further the stand of the defendant that the plaintiff and her son started charging interest on the principal amount as well as on interest and during this period, the defendant had returned Rs.35,000/-, Rs.42,000/- and Rs. 1,00,000/- to the plaintiff and continued to pay Rs.4,500/- till sixteen months to the plaintiff and in this way, she had already paid an amount of Rs.2,49,000/- to the plaintiff and her son but they are still claiming the recovery of Rs.6 lacs. It is further contended that even on 16.02.2015 the defendant sent a sum of Rs.90,000/- to the plaintiff at her residence through one of her relative Sh.Hemendra Singh but plaintiff and her son refused to accept the same and with malafide intention on 18.02.2015, at about 4:00 pm, the plaintiff and her son locked the house of the defendant while her daughter-in-law and two grandchildren were sleeping inside the house. The incident was report to the PCR concerned but police did nothing. It is only on 19.02.2015 when the incident was report to the NGO Sh.Gyan Gangotri Vikas Sanstha, with their CS DJ ADJ No.16355/16 4 intervention, the daughter-in-law and grandchildren of the defendant were removed from the said house. It is further stated that an FIR was got registered after filing of application u/s 156 (3) Cr.pc against the plaintiff and her son.
8. It is further the stand of the defendant that she has not executed even a single document in respect of her property in favour of any person and the documents placed by the plaintiff before this Court are forged and fabricated and manipulated documents and on the basis of above contentions, she seeks for the dismissal of the present suit.
9. It is pertinent to mention that the defendant also filed a counter claim forming part of the written statement and prayed for declaring the conventional set of documents dated 07.07.2009 on the basis of which the plaintiff is claiming himself to be the owner of the suit property as null and void alongwith the decree of permanent injunction. However, at the stage of framing of issues on 11.02.2016, it was observed by the predecessor of this Court that as the defendant has not affixed ad-valorem Court fee on the counter claim and therefore the same is not considered to have been filed before this Court unless the Court fee is affixed. It is further observed that the defendant has not taken any steps to affix the ad-valorem Court fee, accordingly the counter claim deemed not to be pressed by the defendant.
10. In his replication, the plaintiff denied all the contentions raised by the defendant in her written statement and reiterated the stand taken by him in the plaint and it is further submitted by the plaintiff that the defendant has falsely claimed that the registered CS DJ ADJ No.16355/16 5 GPA was executed on 21.04.2006 by the previous owner Paapu on payment of Rs. 30,000/- but in fact the irrevocable GPA was executed on 30.05.2005 duly registered before the SR, Delhi and previous to that on 30.03.2004 Sh. Pappu S/o Karan Singh also executed Agreement to sell, affidavit, receipt, possession letter in favour of the defendant.
11. On the basis of the pleadings of the parties, initially on 11.02.2016, the following issues were framed by this Court:
1)Whether the plaintiff is entitled for possession as owner of the suit property bearing House No.D-17,land area measuring 35 Sq yards, out of Khasra No.110/10, situated in the area of Village Palam, Delhi State, Colony known as Mahavir Enclave Part-III,New Delhi-59, New No.F-101, Gali No.82, Mahavir Enclave, Part-III, New Delhi-59 as prayed for? ...OPP
2)Whether the plaintiff is entitled to the recovery of arrears of rent of Rs.47,190/- alongwith pendentelite interest, if yes, at what rate?...OPP
3)Whether the plaintiff is entitled to the recovery of damages @ Rs.5000/- per month as prayed for?...OPP
4)Whether the plaintiff is entitled to a decree of permanent injunction thereby restraining the defendant from selling, alienating, gifting, transferring, mortgaging and creating third party interest in the suit property House No.D-17, land area measuring 35 sq yards, out of Khasra No.110/10,situated in the area of Village Palam, Delhi State, Colony known as Mahavir Enclave Part-
III, NewDelhi-59, New No.F-101, Gali No.82, Mahavir Enclave, Part-III, New Delhi-59 as prayed for?...OPP CS DJ ADJ No.16355/16 6
12. However, vide order dated 24.12.2019 while allowing the application of the defendant, the following additional issues were framed:
5: Whether the general power of attorney, agreement to sell, affidavit, receipt, possession letter and will, all date 07.07.2009 are forged and fabricated documents and the signatures of the defendant are forged on the same? ...OPD 6: Whether the defendant had taken a loan of ₹1,52,000/-
(Rupees One lakh and fifty two thousand only) from the plaintiff against which the defendant returned to the plaintiff an amount of ₹2,49,000/- (Rupees Two lakhs and forty nine thousand only)?...OPD.
7.Relief
13. The plaintiff in order to prove his case, examined himself as PW1 and tendered his evidence by way of affidavit as Ex.PW1/X and relied upon the following documents:
1.GPA, agreement to sell, affidavit, executed between Ashok Kumar and Smt. Madhu Kamboj, all dated 28.08.1989 as Ex.PW1/A (Colly.) (running into six pages);
2.GPA, agreement to sell, affidavit, executed between Smt. Madhu Kamboj and Sh. Murari Lal Aggarwal, all dated 05.01.1990 as Ex.PW1/B (Colly.) (running into five pages);
3.GPA, agreement to sell, affidavit, Receipt, WILL (Registered) executed between Shri Murari Lal Aggarwal and Surjeet Kumar, all dated 28.10.1991 as Ex.PW1/C (Colly.) (running into eight pages);
4.GPA, agreement to sell, affidavit, Receipt, WILL (Registered) executed between Shri Surjeet Kumar CS DJ ADJ No.16355/16 7 and Shri Pappu, all dated 03.07.1992 as Ex.PW1/D (Colly.) (running into seven pages);
5.GPA, agreement to sell, affidavit, Receipt, possession letter, irrevocable GPA (Regd.) executed between Shri Pappu and Smt. Ram Bala, all dated 30.05.2005 as Ex.PW1/E (Colly.) (running into seven pages);
6.GPA, agreement to sell, affidavit, Receipt, possession letter, irrevocable GPA (Regd.) executed between Smt. Ram Bala and Smt Prakashi Devi, all dated 07.07.2009 as Ex.PW1/F (Colly.) (running into eight pages);
7.Electric Bill of suit property in the name of Prakashi Devi as Ex.PW1/G;
8.Legal notice dated 03.03.2015 sent by plaintiff to the defendant as Ex.PW1/H;
9.Postal receipt as Ex.PW1/N;
10.Legal notice dated 09.03.2015 sent by the defendant to the plaintiff as Ex.PW1/J;
11.Reply of legal notice dated 18.03.2015 sent by counsel for the plaintiff to the legal notice dated 09.03.2015 sent by defendant to the plaintiff as Ex.PW1/K;
12.Postal receipt dated 21.03.2015 as Ex.PW1/L, and
13.Site plan of the property Ex.PW1/M
14. The plaintiff also examined Anil Kumar as PW2 who is attesting witness on the documents already exhibited as Ex.PW1/F (colly) i.e. the set of documents executed by the CS DJ ADJ No.16355/16 8 defendant in favour of the plaintiff on 07.07.2019. He tendered his evidence by way of affidavit as Ex.PW2/A and identified his signatures at point A, B, C and D respectively on the documents Ex.PW1/F (colly). He was cross-examined and discharged.
15. The plaintiff also examined Sh.Raj Vimal, Assistant Grade-I, BSES in order to prove the change of electricity meter in his name. He was also cross-examined and discharged and thereafter the plaintiff closed his evidence.
16. The defendant in her defense herself entered the witness box as DW1 and tendered her evidence by way of affidavit as Ex.DW1/A and relied the following documents:
1.Copy of site plan as Ex.DW1/1;
2.Copy of registered GPA as Ex.DW1/2(colly.)(2 pages)(Original GPA is already filed on record by plaintiff which is Ex.PW1/E(Colly.);
3.Copy of electricity bill dated 29.01.2015 as Ex.DW1/3(OSR);
4.Copy of electricity bill dated 29.01.2014 as Ex.DW1/4 (later on marked as Mark-X);
5.Copy of water bill as Ex.DW1/5 (OSR) (Mark-Y);
6.Copy of complaint along with letters dated 19.02.2015 and 20.02.2015 as Ex.DW1/6, Ex.DW1/7 and Ex.DW1/8 respectively;
7.Copy of FIR No.353/15 PS Dabri, New Delhi as Ex.DW1/9
17. The defendant further examined her son namely Sh.Prashant Kumar as DW2 who tendered his evidence by way CS DJ ADJ No.16355/16 9 of affidavit as Ex.DW2/A and relied upon the documents already relied upon by DW1. He was cross-examined and discharged. The defendant further examined her jeth as DW-3, Sh.Sarvesari who tendered his evidence by way of affidavit as Ex.DW3/A and he was cross-examined and discharged. The defendant further examined Smt. Lalita Devi as DW4 who tendered her evidence by way of affidavit as Ex.DW4/A and she was cross-examined and discharged and thereafter defendant closed her evidence.
18. The Ld. Counsel for the plaintiff has drawn the attention of this Court to the relevant portions of the evidence of the witnesses and argued that the plaintiff has successfully proved the case in her favour by leading affirmative evidence and the defendant has failed to create any contradiction and therefore, prays for the decree of the suit of the plaintiff.
19. Per contra, the learned counsel for the defendant argued that the plea of oral tenancy raised by the plaintiff is an afterthought to over come the ratio of the judgment of Suraj Lamp v. State of Haryana as it is settled law that on the basis of unregistered set of documents, no right, title or interest can be claimed. He further draw the attention of this Court to the relevant portion of the testimony of the witnesses to show that the plaintiff miserably failed to prove her case and the set of documents dated 07.07.2009 are firstly cannot be relied upon and secondly, the defendant has successfully proved that the said documents are forged and fabricated and lastly, he prays for the dismissal of the suit with exemplary cost.
CS DJ ADJ No.16355/16 1020. I have heard the arguments advanced by the learned counsel for parties and have perused the case file and my issue wise findings is as under:
21. Issue-wise finding:
Issue no. 1 to 3
1)Whether the plaintiff is entitled for possession as owner of the suit property bearing House No.D-
17,land area measuring 35 Sq yards, out of
Khasra No.110/10, situated in the area of Village
Palam, Delhi State, Colony known as Mahavir
Enclave Part-III,New Delhi-59, New No.F-101,
Gali No.82, Mahavir Enclave, Part-III, New
Delhi-59 as prayed for? ...OPP
2)Whether the plaintiff is entitled to the recovery
of arrears of rent of Rs.47,190/- alongwith
pendentelite interest, if yes, at what rate?..OPP
3)Whether the plaintiff is entitled to the recovery of damages @ Rs.5000/- per month as prayed for?..OPP
22. Issue no. 1 to 3 are taken up together being inter- connected. The onus to prove the issues is on the plaintiff.
23. After going through the pleadings of the plaintiff, it is relevant to observe that he is claiming possession not on the basis of conventional set of documents i.e. GPA, Agreement to sell, possession letter, affidavit, receipt all dated 07.07.2009, Ex. PW1/F (colly), the said documents are relied upon by the plaintiff to establish his right to give the suit property on rent and in fact he is claiming the possession from the defendant on the CS DJ ADJ No.16355/16 11 basis of oral tenancy which as per her was created at the time of execution of Ex. PW-1/F (colly) on the request of defendant on a monthly rent of Rs.3300/- pm, to be increased by 10% after every three years and as per the plaintiff after the expiry of three years the rent was increased to Rs.3630/- and the defendant lastly paid the rent of Rs.3630/- irregularly till February 2014 and she is further claiming arrears of rent of Rs.47,000/- for the period of March 2014 to March 2015. She is also claiming damages in the nature of mense profits @ Rs.5,000/- pm, till the vacation of the suit property.
24. On the other hand, the oral tenancy is denied by the defendant and it is the claim of the defendant that she never executed the set of documents Ex.-PW1/F (colly) in favour of the plaintiff and she had only handed over the original documents of the suit property as a security for the repayment of the loan of Rs.1,52,000/- availed by her from the plaintiff. Therefore, it has to be seen whether the plaintiff has successfully proved in the affirmative the factum of creation of oral tenancy with the defendant.
25. In her evidence by way of affidavit Ex-PW1/X, the plaintiff reiterated the averments made by her in the plaint and she also exhibited the previous chain of documents of the suit property as Ex-PW1/A (colly) to Ex.-PW1/E (colly). In the cross- examination, the plaintiff deposed that the defendant approached her after 2-3 days of execution of documents requesting her to give the premises on rent. She further deposed that she did not remember the exact date thereafter. It is further deposed that the CS DJ ADJ No.16355/16 12 defendant was alone when she came to her requesting that the premises be let out to her and no documents were prepared for tenancy in favour of the defendant. As far as the rent part is concerned, the plaintiff no doubt deposed that the defendant offered to pay a rent of Rs.3300/- pm, which was increased to Rs.3620/- but she was unable to give the details that how much amount was given to her by the defendant. She further showed her inability to tell that on which date the defendant refused to pay the rent to her. She further failed to disclose that after how many months of refusal to pay the rent, she filed the present suit. The testimony of PW2 and PW3 is not relevant for the just decision on the present issue as they have deposed only for the purpose of proving the set of documents Ex.-PW1/F (colly) and the electricity meter respectively. After going through the testimony of the defendant who entered the witness box as DW1 and her son DW2, except suggestions regarding creation of tenancy nothing material came on record in respect of the factum of tenancy.
26. This Court is of the view that the plaintiff failed to prove the creation of oral tenancy with the defendant. Plaintiff failed to divulge the details regarding payment of rent by the defendant. It is relevant to observe that in the pleadings, it is claimed by the plaintiff that the defendant immediately at the time of execution of documents, requested the plaintiff to let out the suit property on rent and the plaintiff allowed for the same. However, in the cross-examination the plaintiff deposed that the defendant approached her alone after 2-3 days of the execution of the set of CS DJ ADJ No.16355/16 13 documents dated 07.07.2019 requesting her to give the premises on rent. This Court is unable to comprehend that if the request was made immediately at the time of execution of set of documents which as per her case in cross-examination were executed at Janakpuri, what stopped the plaintiff to get a rent agreement executed immediately and nothing in the nature of explanation came on record that if as per the plaintiff the defendant approached her after 2-3 days from the date of execution of set of documents as deposed by her in cross examination, as to who was in possession of the suit property in between the interregnum period between the execution of set of documents and creation of tenancy, as it is not pleaded by the plaintiff that the possession was handed over to her at the time of execution of set of documents or at any time before or after the execution of the documents.
27. This Court is of the considered view that the plea of oral tenancy is pleaded by the plaintiff as she is very much aware that on the basis of unregistered set of documents Ex.-PW1/F (colly), relief of possession cannot be claimed without seeking the substantive relief of specific performance.
28. Even as per the mandate of Section 53-A of the transfer of property Act, 1882, as amended in 2001, the documents containing contracts to transfer for consideration, any immovable property for the purpose of shall be registered and if such documents are not registered then, they shall have no effect for the purposes of the said section 53A.
CS DJ ADJ No.16355/16 1429. It is also relevant to observe that Section 53A of the TP Act, can be invoked only to protect the possession of a property on the basis of a registered agreement to sell only. In other words, Section 53A of the TPA post amendment, can be claimed as a shield on the basis of registered agreement to sell to protect the possession and not as a sword for seeking possession of the property.
30. Hence, a right which cannot be claimed directly, cannot be allowed to be claimed indirectly that too on the basis of unregistered agreement to sell.
31. Further, Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. Thus, once there is no interest is created in favour of the plaintiff on the basis of agreement to sell in respect of the suit property, he cannot by oral tenancy can transfer a right which he does not possess.
32. Thus, as held in Suraj Lamp & Industries v. State of Harayana - 2009 (7) SCC 363 at para no. 12 -Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immovable property can be made only by a registered CS DJ ADJ No.16355/16 15 instrument and an agreement of sale does not create any interest or charge on its subject matter.
33. Accordingly, once the plaintiff failed to prove the oral tenancy, she is neither entitled for the relief of possession in the capacity of landlord nor as owner of the property on the basis of unregistered agreement to sell without seeking the substantive relief of specific performance and further once the oral tenancy is not proved she is also not entitled for the relief of arrears of rent and mesne profits. Consequently, the issue nos.1 to 3 are decided against the plaintiff and in favour of the defendant. Issue no.5 and 6.
5: Whether the general power of attorney, agreement to sell, affidavit, receipt, possession letter and will, all date 07.07.2009 are forged and fabricated documents and the signatures of the defendant are forged on the same? ...OPD 6: Whether the defendant had taken a loan of ₹1,52,000/- (Rupees One lakh and fifty two thousand only) from the plaintiff against which the defendant returned to the plaintiff an amount of ₹2,49,000/- (Rupees Two lakhs and forty nine thousand only)?...OPD.
34. The onus to prove the issues in question is on the defendant as it is her claim that she never executed the set of documents Ex.-PW1/F(colly) in favour of the plaintiff and the same are forged and fabricated documents and it is further her claim that she handed over the Original Chain of documents Ex. PW1/A (colly) to Ex. PW-1/E (colly) to the plaintiff at the time of availing the loan of Rs.1,52,000/- as a security as well as on the asking of the plaintiff that she will keep the documents in safe CS DJ ADJ No.16355/16 16 custody and will hand over the same to the defendant as and when she will demand the same. It is further her case that she has already returned the amount of Rs. 2,49,000/- to the plaintiff by way of Rs. 35,000/-, Rs. 42,000/- and Rs.1,00,000/- and also payed Rs. 45,00/- continuously for 16 months and despite that the plaintiff and her son started saying to her neighbourers that they had to recover a sum of Rs. 6 lakhs from her. It is further claimed by her due to illegal demands and pressure put by the plaintiff, she sent a sum of Rs.90,000/- to the plaintiff at her residence through her relative Sh. Hemendra Singh but the plaintiff and her son refused to accept the said amount and rather with dishonest intention the plaintiff and her son on 18.02.2015 at 4 PM came put the lock on the suit property while her daughter and grand children were sleeping inside and despite complaint made to police no action was taken on the plaintiff and her son and it is only with the intervention of NGO the daughter in law and children were removed next day by breaking open the window and even FIR was got registered against the plaintiff and her son later on.
35. In replication the plaintiff denied whole of the claim of the defendant and it is the plea of the plaintiff that the entire story is created by the defendant as a counter blast to defeat the claim of the plaintiff and there is no iota of truth in the plea taken by the defendant.
36. Firstly, coming to the issue whether the set of documents dated 07.07.2009, Ex.-PW1/F(colly), are forged and fabricated documents or not, it is observed that the plaintiff produced one of CS DJ ADJ No.16355/16 17 the attesting witness to the set of documents namely Anil Kumar son of Sh. Umed Singh as PW-2. In his evidence by way of affidavit Ex. PW-2/A, he deposed that he has put his signatures as an attesting witness at Point A on all the documents Ex.- PW1/F(colly) i.e. GPA, Agreement to sell, receipt, possession letter and Will all dated 07.07.2009 and the said documents are executed by the defendant in lieu of Rs. 2 lakhs paid by the plaintiff to the defendant. In cross-examination he deposed that the documents were prepared at District Center Authority, Janakpuri in his presence. He further deposed that the defendant in her presence has put her right hand thumb impression and the son of the defendant was the another attesting witness, who signed first as attesting witness and thereafter, he put his signatures on the documents, sum of Rs. 2 lakh (currency notes of Rs. 500 denomination) was paid and handed over to defendant in his presence and apart from him, the son of the defendant, Mr. Pardeep, one of his friend and plaintiff were also present at that time. No doubt the defendant in her testimony though admitted her signatures on her evidence affidavit, application under Order 39 rule 1&2, on the possession letter dated 30.03.2004 executed by the previous owner Pappu in her favour but she denied her signatures on the set of documents Ex. PW-1/F (colly) all dated 07.07.2009. But mere denial of signatures by the defendant on set of documents cannot negate the testimony of PW-2, in absence of any other corroborative evidence on record to prove that the signatures/thumb impression are forged by the plaintiff or that the PW-2 has deposed falsely.
CS DJ ADJ No.16355/16 1837. The above testimony clearly proves that the defendant miserably failed to create any contradiction in the testimony of the attesting witness, PW-2 during cross-examination.
38. Now, coming to the second stand of the defendant regarding availing of loan and its repayment, before appreciating her testimony, it is relevant to observe, that in the written statement neither the date when the alleged loan of Rs.1,52,000/- was taken by her from the plaintiff is mentioned nor the dates when she returned the alleged loan in three installments as well as commencement and end date of the payment of alleged 16 installments of Rs. 4500/- each is mentioned. Further, even the date of marriage of her daughter for the purpose of which she claimed to have taken the loan from the plaintiff is mentioned. Further, the defendant in her written statement has claimed that the loan of Rs. 1,52,000/- was availed from plaintiff in two installments of Rs. 50,000/- and Rs. 1,20,000/- respectively, the sum total of which comes out to be Rs. 1,72,000/- and not Rs.1,52,000/-. However, in her evidence by way of affidavit, the loan amount is still claimed to be availed in two installments but smartly, the amount taken in two installments is not mentioned, which prima-facie raises a doubt on the claim of the defendant.
39. Now, coming to the testimony of defendant, who entered the witness box as DW-1, she reiterated the stand taken by her in the written statement in her evidence by way of affidavit Ex. DW-1/A. In cross examination, she failed to withstand her statement made in examination in chief. She on specific questions asked to her, again failed to tell the dates of taking of CS DJ ADJ No.16355/16 19 alleged loan and return of the same. She came up with a new plea that even a loan document was prepared on stamp paper, however, she stated that the same is in possession of the plaintiff. She admitted that she never mentioned about the execution of loan document in her written statement. She further seems to be confused as to whether she has stated so in her written statement. She further deposed that she has not arrayed Sh. Hemendra Singh as a witness, through whom she claimed to have sent Rs. 90,000/- to plaintiff, for the reason that he is threatened by the plaintiff and her son not to appear in the present case. However, she admitted that no complaint in this respect is made to police either by her or Hamender Singh. She further admitted that even despite of return of loan amount as claimed by her, she never filed any case against the plaintiff for the return of her original chain of documents. In some parts of her deposition it is observed the defendant has shown her ignorance to certain averments made by her in written statement such as (1) she deposed that she don't know whether she had stated about payment of Rs. 45,00/- by way of 16 installments to the plaintiff, (2) regarding the receiving of notice from plaintiff dated 03.03.2015 and notice sent by her counsel on 09.03.2015 to the plaintiff. Rest of the cross-examination is related to the incident of alleged locking up of the suit property by the plaintiff and her son, which is not relevant for the just decision of the issue in questions.
40. Further, son of the defendant has entered the witness box as DW-2, in his cross-examination, he denied the execution of set CS DJ ADJ No.16355/16 20 of documents dated 07.07.2009 in favour of the plaintiff in his presence and he even denied his signatures on all the documents. He also deposed that no document was prepared regarding repayment of loan of Rs. 35,000/-, 42000/- and 1 lakh. Rest of the testimony is in respect of alleged locking incident, which is not relevant for the just decision of the issues in question.
41. The testimony of DW-3, jeth of the defendant is not relevant as in cross-examination, he categorically deposed that he do not know about the contents of his evidence by way of affidavit Ex. DW3/A.
42. Defendant also produced Smt Lalita devi as DW-4, she tendered her evidence by way of affidavit as DW4/A and deposed that she is the resident of the locality of the defendant since 2002-03 and well known to the defendant. She further deposed that plaintiff and her son use to lend money on monthly interest and take blank cheques, Gold, original property documents as loan security. Rest of the contents of her affidavit are similar to the stand taken by the defendant thus not reproduced for sake of brevity. In cross-examination, she failed to tell the date of marriage of daughter of the defendant. She further deposed that the loan amount was never taken in her presence, however, plaintiff used to visit the house of defendant for interest and on many occasions defendant had taken money from her for payment of interest. However, she failed to tell the date and month when defendant took money from her for interest payment. Rest of her testimony is in respect of alleged locking incident, which is not relevant for deciding the issues in question.
CS DJ ADJ No.16355/16 2143. After appreciating the entire evidence as reproduced above, it is observed that the defendant miserably failed to prove that the set of documents Ex.-PW1/F(colly) are forged and fabricated documents and the same does not bear her signatures, as PW-2, the attesting witness remained firm on his testimony and duly identified the thumb impression of defendant, signatures of other attesting witness i.e. son of the defendant and also his own signatures as per the mandate of Section 67 and Section 68 of the Indian Evidence Act, 1872. It is natural that defendant and her son shall never admit their signatures on the set of documents, however, their failure to lead any corroborative evidence to prove that her signatures/thumb impression on set of documents are forged and fabricated and additionally her failure to prove the claim qua taking the alleged loan from the plaintiff and its return thereof raises a presumption that set of documents were validly executed and the previous chain of documents in original was handed over to the plaintiff at the time of execution of set of documents Ex.-PW1/F(colly) on 07.07.2009.
44. Additionally, in answer to the questions put by the ld. Counsel for the plaintiff during cross examination to the defendant, the defendant failed to give any explanation that if as per her the loan was returned to the plaintiff well before the filing of the present suit by the plaintiff, why she had not taken any action against the plaintiff for the return of original set of documents Ex.-PW1/A (colly) to Ex.-PW1/E(colly) from the plaintiff and even her plea for non-production of Hamendera Singh as a witness on the ground of threats extended by the CS DJ ADJ No.16355/16 22 plaintiff and her son is not sustainable as admittedly no action is taken by her or Hamendera Singh against the plaintiff or her son and even during trial no efforts were made by the defendant to secure presence of Hamendera Singh through Court summoning in order to prove the factum of sending him to the house of plaintiff to repay Rs.90,000/- as one time settlement for repayment of loan. Thus, mere plea that the said witness was threatened by the plaintiff and her son is not sustainable in absence of any evidence on record. Further, the defendant never produced any witness to prove the factum of alleged demand of Rs. 6 lakhs made by the plaintiff and her son to the neighbour of the defendant as claimed by her in the written statement as well as in her evidence by way of affidavit.
45. Thus, in totality of the facts and circumstances as discussed above, the defendant failed to discharge the onus on both the issues. Hence, the issue no. 5 and 6 is decided against the defendant and in favour of the plaintiff.
Issue no.4
4)Whether the plaintiff is entitled to a decree of permanent injunction thereby restraining the defendant from selling, alienating, gifting, transferring, mortgaging and creating third party interest in the suit property House No.D-17, land area measuring 35 sq yards, out of Khasra No.110/10,situated in the area of Village Palam, Delhi State, Colony known as Mahavir Enclave Part- III, NewDelhi-59, New No.F-101, Gali No.82, Mahavir Enclave, Part-III, New Delhi-59 as prayed for?
46. As discussed while deciding issue no. 1 to 3 and as per the ratio of judgment titled as Suraj Lamp (supra), the unregistered CS DJ ADJ No.16355/16 23 agreement to sell can only be used for seeking the relief of specific performance and without seeking the substantive relief of specific performance, the relief of permanent injunction cannot be granted. Hence, the issue in question is decided against the plaintiff and in favour of the defendant.
Relief
47. In view of the issue-wise finding on Issue no. 1 to 4, the suit of the plaintiff is hereby dismissed with no orders as to costs.
48. Decree sheet be drawn accordingly.
49. File be consigned to record room only after due completion and necessary action, as per Rules.
Pronounced in the open court (Sachin Jain)
on 25.11.2022 Addl. District Judge-02 South West
Dwarka Courts Complex
New Delhi
sj
CS DJ ADJ No.16355/16 24