Delhi District Court
Smt. Sharda vs Sh. Santosh Tewari on 16 November, 2015
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In the Court of Ms. Namrita Aggarwal
CCJ Cum Additional Rent Controller1 (Central)
Tis Hazari Courts, Delhi.
Case No. 188/13/09
Unique I.D. No. 02401C0208022013
In the matter of :
Smt. Sharda
W/o Sh. Bir Singh
R/o House no. 485, Gali no. 3,
Baba Colony, BBlock, Burari,
Delhi110084. ...........Plaintiff
Versus
Sh. Santosh Tewari
S/o Sh/ Ramji Tewari
R/o H. No. 499, Gali no. 3,
BlockB, Baba Colony, Burari,
Delhi110084. ...........Defendant
Date of institution: 11.05.2009
Date when reserved for judgment: 09.10.2015
Date of decision: 16.11.2015
Decision: Dismissed
Page 1 of 15 Smt. Sharda Vs. Sh. Santosh Tiwari CS No. 188/13/09
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SUIT FOR RECOVERY OF POSSESSION UNDER SECTION 6 OF
SPECIFIC RELIEF ACT.
JUDGMENT:
1. A suit for decree of possession under Section 6 of the Specific Relief Act, asking for directions to the defendant to vacate and handover the actual physical possession of the property bearing no. 499, Gali no. 3, Block B, Baba Colony, Burari, Delhi (hereinafter referred to as 'the suit property') has been filed by the plaintiff against the defendant.
2. It is averred by the plaintiff that she was out of station in the first week of January, 2009. That taking undue advantage of the absence of the plaintiff, the defendant broke open the locks of the premises and threw away the goods of the plaintiff and took illegal possession of the suit property. It is averred by the plaintiff in his plaint that the defendant had approached the plaintiff for his bonafide need and legal requirements and had agreed to sell the suit property to the plaintiff for a valuable consideration of Rs. 2 Lacs on 22.02.2008. That the plaintiff paid said sum of Rs. 2 Lacs in cash to the defendant in terms of agreement dated 22.02.2008 and on the same date, the defendant Page 2 of 15 Smt. Sharda Vs. Sh. Santosh Tiwari CS No. 188/13/09 3 executed an affidavit in favour of the plaintiff and also handed over the physical possession of the suit property to the plaintiff. It is averred by the plaintiff that defendant has no right, title and interest over the suit property having sold the same to the plaintiff but despite that the defendant obtained the possession of the suit property without following due process of law taking advantage of the absence of the plaintiff in January, 2009. That the plaintiff has also filed several complaints with the concerned police authorities requesting them to take necessary steps against the defendant but no steps have been taken till date.
3. Written statement has been filed by the defendant wherein, it is contended by the defendant that the defendant neither agreed nor sold the suit property to the plaintiff or anybody else at any point of time. That the suit property was purchased by the father of the defendant who got constructed the same and the defendant is in actual physical possession of the suit property since then. That the possession of the suit property all along have been either of the father of the defendant or with the defendant and none else. That all the documents filed by the plaintiff are forged and fabricated and that on 17.03.2008, the defendant had taken a loan of Rs. 2,50,000/ from the plaintiff against the suit property as a security, due to which plaintiff had kept original documents pertaining to Page 3 of 15 Smt. Sharda Vs. Sh. Santosh Tiwari CS No. 188/13/09 4 the suit property with her. That in lieu of said loan, the husband of the plaintiff got the signatures of the defendant on certain blank papers and thereafter, converted the same into GPA, affidavit, receipt, etc.
4. Replication has been filed wherein the plaintiff has denied all hte averments made by the defendant in his written statement stating that loan was taken by the defendant in March, 2008 against 100 sq. yds. plot, which is the other portion as has been described by the plaintiff in the site plan alongwith replication in the green colour and the said property is nowhere connected to the suit property.
5. From the pleadings of the parties, following issues arise:
1) Whether the plaintiff was in possession of the suit property bearing no. 499, Gali no. 3, BlockB, Baba Colony, Burari, Delhi84, as shown in red colour in the site plan MarkA? OPP
2) Whether the plaintiff was dispossessed from the suit property, otherwise then in due course of law without his consent? OPP
3) Whether the plaintiff has instituted the present suit within six months of such dispossession? OPP
4) Relief.
Page 4 of 15 Smt. Sharda Vs. Sh. Santosh Tiwari CS No. 188/13/09 5
6. The plaintiff entered herself into the witness box as PW1 and deposed on the lines of the plaint. Further, she relied upon following documents: a) Site plan : Ex. PW1/1 b) Other site plan : Ex. PW1/2
c) Copy of GPA dated 22.02.08 executed by defendant in favour of the : Ex. PW1/3 plaintiff
d) Copy of Agreement to Sell dated 22.02.2008 executed by defendant : Ex. PW1/4 in favour of the plaintiff qua the suit property
e) Copy of Affidavit dated 22.02.2008 executed by defendant in favour : Ex. PW1/5 of the plaintiff.
f) Copy of Deed of Will dated 22.02.2008 : Ex. PW1/6
g) Copy of payment receipt dated 22.02.2008 : Ex. PW1/7
h) The complaint made by the plaintiff against the defendant with the : Ex. PW1/8 (colly.)
police station dated 07.01.2009.
i) The complaint dated 10.03.2009 made by the husband of the plaintiff : Mark 'A'
against the defendant to the Commissioner of police, etc.
j) UPC of complaint dated 24.03.2009 : Mark 'B'
k) Postal receipt dated 24.03.2009 : Mark 'C'
7. Sh. Bir Singh, i.e. the husband of the plaintiff stepped into the witness box as PW2 and deposed on the lines of PW1 only. Further, he relied upon the complaints made by the him against the defendant to the higher authorities, which are exhibited as Ex. PW2/1 to 4 (colly) and the postal receipts Ex. PW2/2 to 4 (colly).
8. The defendant, in his turn, examined seven witnesses. 8A. The defendant himself stepped into the witness box as DW1 and deposed on the lines of written statement. Further, he relied upon the following documents: Page 5 of 15 Smt. Sharda Vs. Sh. Santosh Tiwari CS No. 188/13/09 6 a) Site plan : Ex. DW1/1
b) Notice dated 01.05.2013 : Ex. DW1/2
c) Application dated 02.05.2013 u/o 11 Rule 14 read with Order 12 : Ex. DW1/3 Rule 8 and Section 151 CPC
d) Copy of Gazette Notification dated 24.09.2001 : Ex. DW1/4
e) Certified copy of ICard of Swati Kumari Tiwari issued by National : Ex. DW1/5 Instituted of open schooling
f) Certified copy of registration slip no. HRH 85474 dated 15.09.2008 of : Ex. DW1/6 Mrs. Pooja Tiwari wife of plaintiff with Hindu Rao Hospital
g) Certified copy of School ICard of Ms. Sweta Tiwari D/o defendant for : Mark 'A' 200809
h) Certified copy of complaint dated 12.01.2009 made by defendant to DCP: Mark 'B'
i) Certified copy of complaint dated 12.01.2009 made by defendant to : Mark 'C' Commissioner of Police
j) Certified copy of GPA, Receipt, Agreement to Sell, Affidavit dated : Mark 'D' 01.09.1993 8B. DW2, Sh. Raj Kishore Gupta and DW3, Sh. Sham Lal are known to of defendant and the plaintiff who are residing in the same locality. 8C. Smt. Pushpa Tiwari, wife of the defendant entered into the witness box as DW4, whereas, his daughter deposed as DW5.
8D. DW6, Sh. P.K. Gahlawat, Asstt. Ahlmad from the Court of Ms. Kadambari Awasthi, Ld. CJ, Delhi, was called to prove the original of the written statement filed by the defendant in suit no. 51/2012, which is Ex. DW6/1.
8E. DW7, Sh. Suresh Chand, Asstt. Ahlmad from the Court of Sh. Chandra Bose, Ld. CJ (Sr. Division), Delhi, was called to prove the loan Page 6 of 15 Smt. Sharda Vs. Sh. Santosh Tiwari CS No. 188/13/09 7 agreement dated 19.03.2008 but since there was only a photocopy of said agreement on the summoned judicial file of suit no. 463/13, therefore, the same was not exhibited.
8F. DW8, Sh. Satish Kumar, Junior Judicial Assistant from Record Room (Civil), Tis Hazari Courts, Delhi was called with the record of civil suit no. 66/11 titled as 'Smt. Sharda Devi Vs. Sh. Santosh Tiwari' decided on 16.01.2012 by the Court of Sh. Vikram, the then Ld. CJ, Delhi alongwith the record of civil suit no. 37/09 titled as 'Sh. Santosh Tiwari Vs. Smt. Sharda Devi & Ors.' decided on 16.01.2012 by the Court of Sh. Vikram, the then Ld. CJ, Delhi and the relevant pages were exhibited as Ex. DW8/1 (colly).
9. I have heard the arguments on both the parties and have also gone through the judicial record carefully. My issue wise findings are as under: Issue no. 1.
Whether the plaintiff was in possession of the suit property bearing no. 499, Gali no. 3, BlockB, Baba Colony, Burari, Delhi84, as shown in red colour in the site plan MarkA? OPP Page 7 of 15 Smt. Sharda Vs. Sh. Santosh Tiwari CS No. 188/13/09 8
10. Onus to prove this issue was placed upon the plaintiff. It is averred by the plaintiff that she had purchased the suit property from the defendant for a valuable consideration of Rs. 2 Lacs on the basis of agreement dated 22.02.2008, by virtue of GPA, Agreement to Sell, Will, Affidavit and Payment Receipt. It is further submitted that defendant on the date of purchase of the suit property by the plaintiff, had handed over the physical possession of the suit property to the plaintiff and the plaintiff had been residing in the said property since then. The defendant, on the other hand, had stated that the plot of land, on which the suit property was constructed was purchased by the father of the defendant and after his death, defendant is the owner of the suit property. That the possession of the suit property all along have been either of the father of the defendant or with the defendant and at no point of time, the same was sold to the plaintiff. The case of the defendant is that on 17.03.2008, the defendant had taken a loan from the plaintiff for a sum of Rs. 2,50,000/ against the suit property as security. That on the said date, the husband of the plaintiff got signatures of the defendant on certain blank papers, which were later on converted into GPA, Agreement to Sell, Will, Receipt, etc. The said documents are not registered in the office of the SubRegistrar.
Page 8 of 15 Smt. Sharda Vs. Sh. Santosh Tiwari CS No. 188/13/09 9
11. I have heard the contentions of both the parties and have also gone through the record.
12. Perusal of record clearly shows that the documents on the basis of which the plaintiff is claiming her title over the suit property are not registered in the office of the SubRegistrar. Even otherwise, the plaintiff is claiming her title on the basis of Agreement to Sell, GPA, Will, Receipt, etc and not on the basis of any Sale Deed. In Suraj Lamp & Industries (P) Vs. State of Haryana & Anr. (2009) 7 SCC 363, it has been clearly held that : " A person cannot claim his title on the basis of GPA, Receipt, Agreement to Sell, ect and if any transaction has taken place through these documents, then, only remedy available with the purchaser is to perfect his title by filing a suit for specific performance by the vendor."
In the present case, no suit for specific performance has been filed by the plaintiff in order to perfect her title over the suit property and even no Sale Deed has been executed. Even, the GPA, Receipt, Agreement to Sell, etc. are not registered in the office of the Sub Registrar and hence, these documents cannot be relied upon.
13. The defendant has alleged that he had taken a loan from the plaintiff for a sum of Rs. 2,50,000/ against the security of the suit Page 9 of 15 Smt. Sharda Vs. Sh. Santosh Tiwari CS No. 188/13/09 10 property and therefore, the original title documents with respect to the suit property were taken by the plaintiff as a security. Per contra, it is submitted by the plaintiff that the loan which was taken by the defendant from the plaintiff was against some other property and not the suit property. However, the plaintiff has not filed the title documents in order to prove that the said loan was taken against some other property and not the suit property. Further, the property, as depicted by the plaintiff in the site plan averring that against the said property loan was taken belongs to one Sh. A. N. Singh and not the defendant. It is averred that the defendant had played a fraud by taking loan against the property of somebody else but no explanation has been given by the plaintiff to show that any efforts were made by him to verify whether the property against which loan has been taken by the defendant belongs to defendant or not. Plaintiff and her husband both have admitted in their crossexamination that they had taken the original title documents of the property against which loan was taken by the defendant but even these original documents have not been placed on record. Thus, the averment of the plaintiff that loan was taken by the defendant against some other property and not the suit property remains unproved. Moreover, the plaintiff has failed to file even a single document to prove her ownership over the suit property. It is submitted by the plaintiff during her cross Page 10 of 15 Smt. Sharda Vs. Sh. Santosh Tiwari CS No. 188/13/09 11 examination that she had not applied for water, electricity or telephone connection from the suit property. Even, no bank account is maintained from the address of the suit property by the plaintiff. Defendant, on the other hand, has filed various documents, i.e., ID Card of her daughter Shweta Tiwari for the session 20082009 alongwith the copy of the electricity and the water connection as well as bank account passbook in order to prove his residential address to be that of the suit property and no other property. Plaintiff has failed to state that if the defendant is not residing in the suit property alongwith his family, then, what is the alternative address of the defendant. Further, all the title documents relied upon by the plaintiff are not registered in the office of the Sub Registrar, whereas, it is mandatory provisions of Section 17 & 49 of the Registration Act, Section 53A of Transfer of Property Act and Section 35 read with Article 23 A of Indian Stamp Act that any document, on the basis of which, the plaintiff is claiming her title ought to have been registered with the office of the SubRegistrar. The defendant examined even the neighbours, who are known to both the plaintiff and the defendant in order to prove that defendant have been in continuous possession of the suit property. However, no cogent evidence has been produced by the plaintiff to prove that she is in possession of the suit property. Even in the previous litigation between the parties, it has been Page 11 of 15 Smt. Sharda Vs. Sh. Santosh Tiwari CS No. 188/13/09 12 decided that the defendant had been in possession of the suit property. The defendant admitted the order dated 06.10.2012 passed by Sh. Samar Vishal, in suit bearing no. 37/09, declaring possession of the defendant in the suit property. The said order has been exhibited as Ex. PW1/DX1. Even, the order dated 20.04.2011 of the Court of Sh. Vikram, the then Ld. CJ, Delhi, allowing the defendant Sh. Santosh Tiwari to renovate the suit property on the basis of possession of the defendant has been exhibited as Ex. PW1/DX4. Defendant also proved the joint statement of the plaintiff and her husband dated 02.01.2012 given by them in suit bearing no. 37/09 titled as "Santosh Tiwari Vs. Smt. Sharda & Ors." in the Court of Sh. Vikram, the then Ld. CJ, Delhi, whereby admitting possession of the defendant in the suit property. The said joint statement is Ex. PW1/DXC, which is part of Ex. DW8/2. Thus, from the previous litigation as well as documents filed by the defendant, it is clear that it was defendant only, who had been in possession of the suit property all along and plaintiff was never in possession of the suit property. Had the plaintiff been in possession of the suit property at any point of time, a single ID would have been made by the plaintiff from the address of the suit property. However, no documentary evidence in order to prove the possession of the plaintiff in the suit property has been filed by the plaintiff. The plaintiff has also failed to prove that a loan was Page 12 of 15 Smt. Sharda Vs. Sh. Santosh Tiwari CS No. 188/13/09 13 also taken by the defendant against some other property and not the suit property. The plaintiff has further failed to prove the title documents, on the basis of which she is claiming her ownership over the suit property since none of those documents are as per law and even otherwise, they are not registered in the office of SubRegistrar and thus, did not have any legal validity. The plaintiff even failed to examine Oath Commissioner or Notary Public, who had attested so called title documents. Further, the documents relied upon by PW2, i.e., the complaints made before police authorities are not sufficient to prove ownership of the plaintiff over the suit property at any point of time. In Abdul Rashid Vs. Delhi Waqf Board bearing CS (OS) No. 2537/2015 decided on 25th August, 2015, it has been clearly held by Hon'ble Delhi High Court that : "Self serving letters to the authorities and police complaints do not prove settled position."
Hence, the plaintiff has miserably failed to prove her possession over the suit property at any point of time. Accordingly, this issue is decided in favour of the defendant and against the plaintiff. Issue no. 2.
Whether the plaintiff was dispossessed from the suit property, otherwise then in due course of law without his consent? OPP Page 13 of 15 Smt. Sharda Vs. Sh. Santosh Tiwari CS No. 188/13/09 14
15. Onus to prove this issue was upon the plaintiff. However, since the plaintiff failed to prove that she was ever in possession of the suit property, therefore, question of proving her dispossession from the suit property does not arise. Even otherwise, then in due course of law, she had all the opportunities to prove that she was in possession of the suit property, which she failed to prove. Hence, this issue is also decided in favour of the defendant and against the plaintiff. Issue no. 3.
Whether the plaintiff has instituted the present suit within six months of such dispossession? OPP
16. It is averred by the plaintiff that she was dispossessed from the suit property, otherwise, then in due course of law, in the first week of January, 2009 and the present suit has been filed on 11.05.2009. Therefore, the present suit is filed within the period of limitation. But since, the plaintiff has failed to prove that she was ever in possession of the suit property or that she was dispossessed from the suit property, therefore, this issue has no relevance.
Page 14 of 15 Smt. Sharda Vs. Sh. Santosh Tiwari CS No. 188/13/09 15 Relief.
17. In view of my finding given in issues no. 1 to 3, the suit of the plaintiff is dismissed as rejected. No order as to costs. Decree sheet be prepared accordingly.
Announced in open Court (Namrita Aggarwal)
on 16 Day of November, 2015.
th
CCJ cum ARC1 (Central)
[This judgment contains 15 pages.] Tis Hazari Courts, Delhi
Page 15 of 15 Smt. Sharda Vs. Sh. Santosh Tiwari CS No. 188/13/09