Delhi District Court
Sh. Rakesh Maini vs Sh. Deepak Maini on 31 January, 2022
IN THE COURT OF SH. PAWAN SINGH RAJAWAT:
ADDITIONAL DISTRICT JUDGE-08, TIS HAZARI COURTS
(WEST), DELHI
CS No. 611063/2016
In the matter of :
Sh. Rakesh Maini,
S/o Late Sh. V.N. Maini,
R/o. GH-10/61D, Sunder Apartments,
Paschim Vihar, New Delhi. ......Plaintiff
Versus
Sh. Deepak Maini,
S/o Late Sh. D.K. Maini,
R/o. GH-10/86-A, Sunder Apartments,
Paschim Vihar, New Delhi. ... Defendant
(SUIT FOR DECLARATION, PERMANENT AND MANDATORY
INJUNCTION)
CS No. 11565/2016
In the matter of :
Sh. Deepak Maini,
S/o Late Sh. D.K. Maini,
R/o. GH-10/86-A, Sunder Apartments,
Paschim Vihar, New Delhi. ......Plaintiff
Versus
Rakesh Maini Vs. Deepak Maini (CS No.611063/2016
Deepak Maini Vs. Rakesh Maini (11565/2016)
Page: 1/54
Sh. Rakesh Maini,
S/o Late Sh. V.N. Maini,
R/o. GH-10/61D, Sunder Apartments,
Paschim Vihar, New Delhi. ... Defendant
(SUIT FOR RECOVERY OF POSSESSION AND RS. 72,000/- AND
DAMAGES)
Date of institution of suit CS No. 11063/16 : 02.05.2009
Date of institution of suit CS No. 11565/16 : 14.07.2009
Date on which judgment reserved : 22.12.2021
Date on which judgment pronounced : 31.01.2022
JUDGMENT
1. By this common judgment, the above two suits shall be decided which were consolidated vide order dt. 25.07.2019 and civil suit no. 11063/16 titled as "Rakesh Maini Vs. Deepak Maini" was taken as lead case for the purpose of trial. The party Rakesh Maini shall be referred as plaintiff as he is the plaintiff in the lead case and Deepak Maini shall be referred as defendant in the judgment. The issues in both the matters were framed separately, however, as both matters were consolidated after framing of issues, same shall be dealt with in this common judgment.
2. The plaintiff Rakesh Maini has filed the present suit seeking declaration that the defendant is not the Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 2/54 owner/landlord of the suit property having no right, title or interest in the suit property on the basis of sale documents dt. 02.07.2003 and that the plaintiff is not his tenant and that the defendant has no right to demand any rent from the plaintiff and that the defendant has no concern whatsoever with the suit property and all other documents in which defendant took signatures/thumb impression of the plaintiff between 02.07.2003 to December, 2008 in respect of suit property are null and void. The plaintiff is also seeking permanent against the defendant thereby restraining the defendant from dispossessing the plaintiff forcibly from the suit property, from selling, alienating, mortgaging, transferring the suit property in any manner, from creating third party interest in the suit property, from interfering in the peaceful possession, use, occupation and enjoyment of the plaintiff in the suit property alongwith mandatory injunction in favour of the plaintiff and against the defendant thereby issuing directions to the defendant to handover three cheques taken by defendant from the plaintiff in November, 2008 and December, 2008 and to destroy all documents/ papers on which defendant obtained the thumb impression / signatures of the plaintiff in garb of the loan documents / renewable of the loan.
3. In the plaint it is stated that one Sh. Manjeet Singh Dhingra was the initial owner of the flat no. GH-10/61D, Sunder Apartments, Paschim Vihar, New Delhi-110 063 Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 3/54 (hereinafter referred to as the suit property) who sold the same to Smt. Sarla Rani, the mother of the plaintiff who in turn transferred the suit property in favour of the plaintiff and the plaintiff became the lawful, absolute and exclusive owner of the suit property on 26.10.1996 and he is in actual physical possession in the suit property in the capacity of an absolute owner.
4. It is further averred that defendant is a friend of plaintiff and is known to the plaintiff for the last about 15 years having visiting terms. It is averred that in the month of June 2003, the plaintiff was in need of Rs. 6,00,000/- as he was facing some financial problems, requested defendant to provide him with a friendly loan to which defendant agreed and on 02.07.2003 defendant took the plaintiff to the office of the Sub-Registrar, Janakpuri, New Delhi for the execution of the loan documents where defendant obtained the signatures and thumb impressions of the plaintiff in 50 papers, some of them were already typed and some were blank, some papers were already printed and on some papers the revenue stamps were affixed and also took 6 passport size photographs of the plaintiff. It is claimed that plaintiff in the garb of the loan documents obtained the signatures and thumb impression of the plaintiff on sale documents of suit property.
5. It is further averred that defendant gave two account Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 4/54 payee cheques of Rs. 3,00,000/- each totally Rs. 6,00,000/- to plaintiff @ of 1% interest per month which would come to Rs. 6000/-. It is claimed that no sale of suit property took place between the parties and therefore, the contents of all sale documents are challenged, cancelled and revoked by the plaintiff, through the instant plaint.
6. It is also averred that plaintiff repaid part payment of Rs. 3,00,000/- of the said loan to the defendant and it was agreed that defendant would charge Rs. 3000/- per month as interest on the remaining amount of Rs. 3,00,000/-. It is further claimed that plaintiff started paying Rs.3000/- as interest to the defendant on every second day of each English calendar month and defendant on the pretext of renewal papers/documents of the friendly loan of Rs. 3,00,000/-, obtained his signatures on 10 papers in the month of June/July 2005, May/June 2006 and August 2007.
7. It is also averred that plaintiff again obtained a friendly loan of Rs. 1,00,000/- from the defendant in the month of October 2007 @ 1% interest and defendant again obtained signatures and thumb impressions of plaintiff on 10 papers in the pretext of loan documents. Similarly plaintiff took further loan of Rs. 1,00,000/- each from the defendant in the month of January 2008, November 2008 and December 2008 and defendant obtained signatures and thumb Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 5/54 impression of plaintiff on 10 papers each on all the occasions. It is averred that plaintiff regularly paid interest to defendant and last on 02.03.2009 he paid Rs. 7000/- as interest against the loan of Rs. 7,00,000/- and not even a single receipt was issued by the defendant to the plaintiff against the interest paid to the defendant
8. It is averred that the plaintiff received the legal notice dt. 18.03.2009 sent by the defendant claiming himself as the owner and landlord of the suit property and alleging that plaintiff was his tenant at the monthly rent of Rs. 6000/- per month and was in the arrears of rent amounting to Rs. 54,000/- and the tenancy of the plaintiff was terminated by the defendant through the said legal notice dt. 18.03.2009.
9. It is further averred that defendant is bound to return all the original documents of the suit property including documents on which the defendant obtained the signatures and thumb impressions, in the garb of loan documents and to withdraw the legal notice dt. 18.03.2009. Hence the present suit.
10. In the civil suit no. 11565/16 filed by defendant Deepak Maini, he is claiming that plaintiff Rakesh Maini is his tenant and is in physical possession, occupation, use and enjoyment of the suit property, as tenant which was Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 6/54 terminated by legal notice dt. 18.03.2009 duly served upon the plaintiff. Deepak Maini is claiming that he had purchased the flat in question for Rs. 6 lacs from plaintiff Rakesh Maini who was simultaneously inducted as tenant at monthly rent of Rs. 3000/- for 22 months commencing from 01.07.2003 vide rent agreement dt. 08.07.2003 and tenancy period was further extended for 11 months vide rent agreement dt. 02.08.2005 at monthly rent of Rs. 6000/- and again it further extended for 11 months vide rent agreement dt. 13.08.2007.
11. It is also averred that defendant is the absolute owner of the suit property since 02.07.2003 and has been assessed to House Tax of the suit property and paying House Tax regularly being the owner of the suit property. It is also averred that since the plaintiff was not paying the rent from July 2008, legal notice dt. 18.03.2009 was issued which was duly served but the plaintiff has not vacated the premises and therefore, defendant Deepak Maini is entitled for possession as well as the recovery of the due rent with interest from plaintiff Rakesh Maini.
12. In the Written Statement of lead case CS611063/16 filed by the defendant Deepak Maini, it is averred that the present suit is barred by limitation. It is also averred that plaintiff is tenant of defendant and is in physical possession, occupation, use and enjoyment of the suit Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 7/54 property, as tenant and the tenancy was terminated by legal notice dt. 18.03.2009 duly served upon the plaintiff. It is also averred that plaintiff has not placed on record any document of his ownership after 02.07.2003 which shows that the plaintiff has sold the suit property to the defendant.
13. It is further averred in the Written Statement that plaintiff sold the suit property to the defendant for a total consideration of Rs. 6,00,000/- and executed General Power of Attorney dt. 02.07.2003 duly registered with Sub- Registrar , Delhi and the plaintiff handed over original chain of documents of ownership of suit property to the defendant. It is also averred that since the relations were cordial between the parties, the suit premises was let out to the plaintiff by the defendant at monthly rent of Rs. 3000/- for 22 months commencing from 01.07.2003 vide rent agreement dt. 08.08.2003 and tenancy period was further extended for 11 months vide rent agreement dt. 02.08.2005 at monthly rent of Rs. 6000/- and again it further extended for 11 months vide rent agreement dt. 13.08.2007.
14. In the replication filed by the plaintiff in the lead case to the Written Statement of the defendant, plaintiff reiterated the averments made in the plaint and denied the averments made in the Written Statement.
Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 8/54
15. In the Written Statement filed in civil suit no.
11565/2016 plaintiff Rakesh Maini took the objection that suit is barred U/s 10 of CPC as suit titled as "Rakesh Maini Vs. Deepak Maini" is pending for adjudication. The plaintiff has taken various legal objections in view of the pendency of another suit between the parties while denying the existence of landlord tenant relationship and claiming that the he is lawful, absolute and exclusive owner of the suit property. It is further mentioned that the documents dated 02.07.2003 which includes GPA, WILL, receipts, affidavit, possession letter and Agreement to Sell have already been cancelled before Sub-Registrar and also through reply cum legal notice dt. 21.04.2009 and legal notice dt. 04.12.2009 which were duly served. The plaintiff Rakesh Maini denied the genuineness of Conveyance Deed dt. 27.04.2009 and claimed that the same is false, forged and fabricated as same is not signed by Sh. Karunesh Sharma. Rakesh Maini is claiming that in June 2003 he was in need of Rs. 6 lacs and requested the defendant Deepak Maini for the said friendly loan and there was no sale transaction of the property in question. He is also claiming that the has repaid the said loan and despite that the defendant Deepak Maini has not returned the documents executed between the parties. He also denied the property in question being taken on rent from the defendant.
Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 9/54
16. In the replication filed by Deepak Maini he denied the averments of the Written Statement and affirm the contention of the plaint.
17. After hearing the parties, the following issues in the matter of "Rakesh Maini and Deepak Maini were framed on 10.09.2009:-
(i) Whether the present suit is barred by limitation? OPD
(ii) Whether the plaintiff is entitled to decree of declaration? OPP.
(iii) Whether the plaintiff is entitled to decree of permanent injunction, as prayed for ? OPP.
(iv) Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for? OPP.
(v) Relief.
18. On 22.02.2019 on filing of amended Written Statement, the following additional issue was framed in the matter "Rakesh Maini Vs. Deepak Maini":-
"Whether conveyance deed dt. 27.04.2009 is forged and fabricated? OPP"
19. On 22.11.2013 in the matter "Deepak Maini Vs. Rakesh Maini" issues were framed as under:-
(i) Whether the plaintiff is entitled to decree of possession against the defendant qua suit property bearing no. GH-10/61-D, sunder Apartment, Paschim Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 10/54 Vihar, New Delhi as shown in the site plan.? OPP
(ii) Whether the plaintiff is entitled to decree of Rs. 72,000/- towards arrears of rent, as prayed for? OPP
(iii) Whether the suit is barred Under Section 10 of CPC? OPD
(iv) Whether the plaintiff has no locus standi to file the present suit? OPD
(v) Relief.
20. On 09.10.2015 one additional issue was framed as under:-
"Whether plaintiff is entitled for damaged/mesne profit @ Rs. 10,000/- per month for unauthorized occupation from 01.05.2009 till the possession of the suit property is handed over to the plaintiff? OPP
21. Vide order dt. 25.07.2019 both the cases were consolidated after observing that the both the suits should be disposed off if they are taken up together, considering the overlapping nature of the evidence as proposed to be led by both the parties.
22. In support of his case plaintiff Rakesh Maini examined himself as PW-1 and tendered his affidavit Ex. PW-1/A. His testimony is on the lines of plaint filed by him. He relied upon documents Ex. PW-1/1 which is site plan, legal notice dt. 18.03.2009 as Ex. PW-1/2, reply to legal notice Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 11/54 dt. 18.03.2009 as Ex. PW-1/3, two postal receipts as Ex. PW-1/4, two UPC as Ex. PW-1/5, returned speed post envelop as Ex. PW-1/6. On 21.12.2019 he also tendered his additional affidavit as Ex. PW-1/B. PW-1 also relied upon statement of account as Ex. PW-1/7, pass book of his account as Ex. PW-1/8, cancellation of GPA as Ex. PW- 1/9, cancellation of deed of Will as Ex. PW-1/10 , legal notice dt. 04.12.2009 as Ex. PW-1/11, receipt of speed post as Ex. PW-1/12,, UPC receipt as Ex. PW-1/13, reply of defendant dt. 28.01.2010 as Ex. PW-1/14, legal notice dt. 04.12.2009 being returned by the Sub Registrar to Janakpuri as Ex. PW-1/15, complaint dt. 08.01.2020 made to the Hon'ble Chief Justice of High Court of Delhi as Ex. PW-1/16 and UPC receipt of the same as Ex. PW-1/17. The cross examination will be discussed at appropriate place in the judgment.
23. Plaintiff examined Sh. Vinod Talwar as PW-2 on 15.07.2016. He deposed that plaintiff is his real brother- in-law. He deposed that on 04.07.2003/05.07.2003 the plaintiff contacted him and told him that he had borrowed Rs. 6,00,000/- from his friend Sh. Deepak Maini on 02.07.2003 at monthly interest @ 1% by keeping documents of his house as security. He also deposed that he helped the plaintiff by giving amount of Rs. 3,00,000/- to repay to his friends and relatives. He also deposed that in the last week of July 2003, the plaintiff told him that he Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 12/54 had repaid Rs. 3,00,000/- through cheque and the amount of the cheque was transferred in the account of the defendant on 10.07.2003. He further deposed that plaintiff has also told him that he had further borrowed Rs. 4,00,000/- from the defendant at a monthly interest of 1% . During cross examination, PW-2 he admitted that he was not present at the time of deal in respect of the suit property. He deposed that in 2003 Sh. Rakesh Maini was carrying a business of readymade garments and was also in employment in Palika Bazar. He denied that plaintiff has sold the suit property to the defendant. He admitted that he had not obtained any receipt of Rs. 3,00,000/- from the plaintiff and that he had not shown the transaction of the same in his ITR. He denied the suggestion that plaintiff did not obtain total loan of Rs. 7 lacs from the defendant. He also admitted that he has no personal knowledge about the alleged transaction of loan between plaintiff and defendant. He admitted that he deposed whatever has been told by the plaintiff to him regarding the loan.
24. Plaintiff also examined Sh. Madhusudhan Ahuja, Senior Manager from Punjab National Bank as Ex. PW-2 on 17.02.2017. Since Vinod Talwar has already been examined as PW-2 on 15.07.2016, it appears that due to typographical error in the nomenclature Madhusudhan Ahuja is numbered PW-2. Hence, his testimony be read as PW-2A. He deposed that he has brought the summoned Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 13/54 record i.e. statement of account w.e.f. 25.05.2004 to 14.02.2017 with certificate U/s 65B of Indian Evidence Act as Ex. PW-2/A. He stated that the record pertaining to the year 2003 is not available with the bank because as per RBI guidelines, the record is maintained only for ten years and after ten years, the record is maintained by the bank. He admitted that the statement of account for the period 01.01.2003 to 22.05.2005 Ex. PW-1/7 is issued by their bank.
This witness was not cross examined on behalf of defendant.
25. PW-3 is Sh. Nitin Parashar, Office Assistant from the Office of Sub-Registrar IIA, Punjabi Bagh, Delhi examined on 17.02.2017. He deposed that he has brought the summoned record i.e. document of Revocation/Cancellation of the GPA, Revocation/Cancellation of Deed of WILL dt. 07.12.2009 as Ex. PW-3/A and PW-3/B. During cross examination, on asking specific question he stated that he cannot say whether the legal notice dt. 26.05.2010 Ex. PW-3/D1 has been received in his office or not.
26. Sh. Chiranji Lal, Scale-I Officer from PNB Punjabi Bagh was also examined as PW-3 on 05.05.2017. Since Nitin Parashar has already been examined as PW-3 on Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 14/54 17.02.2017, it appears that due to typographical error in the nomenclature Chiranji Lal is also numbered PW-3. Hence, his testimony be read as PW-3A. He deposed that he has brought the certificate/record issued by the bank regarding destroy of the old record voucher and ledgers upto December 2005 which is exhibited as Ex. PW-4/1. This witness was not cross examined by the defendant.
27. Thereafter, vide separate statement of plaintiff, Plaintiff evidence was closed and the matter was adjourned for Defendant Evidence.
28. In his defence for lead case CS611063/16 as well as for his claim of possession and arrears in CS11565/16, Defendant Deepak Maini examined himself as DW-1. He deposed that he is the owner/landlord of the premises bearing no. GH- 10/61-D, Sunder Apartment, Paschim Vihar, Delhi as he purchased the for a total consideration of Rs. 6,00,000/- paid by him to the plaintiff by way of crossed cheques on 02.07.2003. He also deposed that plaintiff handover the complete chain of ownership documents of the suit property to him. He further deposed that at the request of the plaintiff, he got the plaintiff inducted as tenant in the said premises vide rent agreement dt. 02.07.2003 at a monthly rent of Rs. 3000/- for 22 months and the tenancy period was extended further for 11 months vide rent agreement dt. 02.08.2005 for a monthly Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 15/54 rent of Rs. 6000/- and the same was further extended for 11 months vide agreement dt. 13.08.2007. He further deposed that since 30.04.2009 the plaintiff is in unauthorized occupation of the suit property after termination of tenancy by way of legal notice. He also deposed that the conveyance deed dt. 27.04.2009 is also in favour of the defendant in respect of the suit property. He further deposed that he has been paying house tax of the suit property since the year 2003 till date being the owner/landlord of the suit premises.
29. He further deposed that on 09.07.2003 the plaintiff paid Rs. 3,00,000/- as security amount to him against the tenancy of suit property and it was agreed that the same will be returned at the time of vacating the suit premises and since the relation between them is cordial, the defendant returned Rs. 1 lac on 15.01.2008 by cheque, Rs. 20,000/- on 14.02.2008 by cash, Rs. 50,000/- on 23.11.2008, Rs. 50,000/- on 24.11.2008 and Rs. 80,000/- on 03.12.2008 and at present no amount from the security amount is with him.
30. In additional affidavit filed by the defendant, he stated that the Conveyance Deed dt. 27.04.2009 Ex. DW-1/5 is legal, valid and genuine document executed by Sh. Kurnesh Sharma, original allottee/owner of the suit property in favour of the defendant in respect of the suit Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 16/54 property. Cross examination of DW-1 is discussed at appropriate places.
31. I have heard Ld. Counsels for the parties. I have also carefully perused the material on record.
32. Ld. Counsel for plaintiff Rakesh Maini argued that the defendant Deepak Maini has failed to explain why the plaintiff will pay Rs.3 lacs as security for property which as per claims of defendants is worth only Rs.6 lacs. He also argued that in none of the rent agreements the security amount is mentioned which is against the common human behaviour. He also pointed out that there is no reference of security amount in the legal notice sent by defendant. He also submits that the conveyance deed dated 27.04.2009 is not genuine as there is no reference of the said conveyance deed in the written statement filed by Deepak Maini or in the replication filed in the counter claim. He also argued that no witness of conveyance deed or witness from Sub Registrar Office was examined by the defendant. He also submits that Deepak Maini has not filed his ITR to show the amount of loan being reflected in his Income tax Returns. He also submits that the alleged witness to the documents Subhash Arora is not produced by Deepak Maini as witness and even though the rent agreement is dated 01.07.2003, the GPA / WILL and other alleged sale documents are all dated 02.07.2003. He also pointed out Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 17/54 that the defendant has not filed any suit for declaration claiming ownership and therefore, the case of defendant must fail.
33. On the other hand, Ld. Counsel for defendant Deepak Maini argued that Rakesh Maini is not illiterate and therefore, he is presumed to understand the consequences of signing blank documents. He also argued that Rakesh Maini was aware about the execution of documents and in view of Section 63 of the Registration Act and Section 202 of Indian Contract Act being read with section 91/92 of Indian Evidence Act, the plaintiff Rakesh Maini cannot revoke the documents executed by him as they were executed for valuable consideration. He also argued that in terms of section 8 of Notary Act, the documents and its contents have been proved. He also submits that since on the day of legal notice, no security amount remains with the defendant as already handed over to plaintiff, therefore it was not mentioned in the legal notice.
34. My finding on various issues is as under:-
35. Issue No. 1 of lead case is taken up first:-
(i) Whether the present suit is barred by limitation?
OPD. The onus to prove the same is upon the defendant Deepak Maini. The issue of limitation has to be considered with regard to relief claimed by the plaintiff whereby he is Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 18/54 seeking Decree of declaration to the effect that the defendant is not the owner of the suit property and that the plaintiff is not his tenant and that the defendant has no right, title or interest in the suit property on the basis of Sale Deed dt. 02.07.2003 and on the basis of all other documents in which defendant took signatures/thumb impression of the plaintiff. The plaintiff has sought declaration that he is owner of the said property. In this regard Article 58 of Limitation Act shall be considered. The period of limitation is of 03 years when the right to sue first accrues. As per Section 34 of the Specific Relief Act "a person may seek declaration to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny his claim. Conjoint reading of Article 58 of the Limitation Act and Section 34 of the Specific Relief Act makes it clear that the right to sue for the plaintiff seeking declaration of his ownership regarding the said property would start when the defendants denied his title over the said property. The plaintiff Rakesh Maini is claiming that he was enjoying the suit property as owner but vide legal notice dated 18.03.2009, defendant first time challenged his occupation and ownership. The defendant Deepak Maini has not brought any evidence to show that on any previous occasion between 02.07.2003(date of execution of documents) and 18.03.2009 (date of legal notice), he has brought to the notice of plaintiff of his claim of ownership Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 19/54 and relationship of landlord and tenant between the parties. Thus the period of limitation will start from 18.03.2009 i.e, date of legal notice. As per record, the lead case CS No. 611063/2016 was instituted on 02.05.2009 which implies that it is instituted within 03 years of the date of knowledge by the plaintiff of denial of his ownership by defendant. Hence I am satisfied that Civil Suit CS No. 6011063/2016 was instituted within the period of limitation, Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
36. Now I shall be dealing with issue no. (iii) of Civil Suit No. CS No. 11565/16 titled as Deepak Maini Vs. Rakesh Maini.
(iii) Whether the suit is barred Under Section 10 of CPC? The onus to prove the same is upon Rakesh Maini. As per record civil Suit No. CS No. 611063/16 was filed on 02.05.2009 by Rakesh Maini seeking decree of declaration and injunctions against Deepak Maini in respect of suit property. However, Deepak Maini also instituted Civil Suit No. CS No. 11565/16 on 14.07.2009 seeking decree of possession against Rakesh Maini on the ground that he is the lawful purchaser of the suit property. Section 10 CPC provides for stay of suit if the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 20/54 they or any of them claim litigating under the same title. The fundamental test to invoke section 10 CPC is to see whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. The object of section 10 CPC is to prevent court of concurrent jurisdiction from simultaneously trying two parallel suits in respect of same matter in issue. However, it is noted that vide order dated 25.07.2019, the both the suits were consolidated after holding that section 10 CPC would not be attracted. Hence, the issue of applicability of section 10 CPC to CS11561/16 is decided against plaintiff Rakesh Maini and in favour of the defendant Deepak Maini.
37. Now I shall be dealing with issue no. (iv) of Civil Suit No. CS No. 11565/16 titled as Deepak Maini Vs. Rakesh Maini.
(iv) Whether the plaintiff has no locus standi to file the present suit? OPD The onus to show that Deepak Maini has no locus standi to file the suit is upon Rakesh Maini. However, evidence led by Rakesh Maini has failed to show that Deepak Maini has no locus standi to institute the suit seeking relief of possession as Deepak Maini has placed on record document Ex.PW-1/DX1 to Ex.PW-1/DX9 in which Rakesh Maini has admitted his signatures which are the sale documents of the suit property. Hence, the issue of Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 21/54 Deepak Maini has no locus standi to institute the suit no. CS No. 11565/16 is decided against Rakesh Maini and in favour of Deepak Maini.
38. Now, I shall be dealing with issue no.(ii), (iii) and (iv) as framed in civil suit no. CS No. 611063/16.
(ii) Whether the plaintiff is entitled to decree of declaration? OPP.
(iii) Whether the plaintiff is entitled to decree of permanent injunction, as prayed for ? OPP.
(iv) Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for? OPP. The onus to prove these issues is upon Rakesh Maini.
39. Ld. counsel for plaintiff has argued that the defendant Deepak Maini has played fraud upon the plaintiff and in the garb of getting the loan documents executed, made the plaintiff to sign the documents Ex.PW-1/DX1 to Ex.PW- 1/DX10 without allowing him to read the contents and therefore, the documents dated 02.07.2003 and subsequent alleged rent agreements be declared null and void. He is also seeking declaration that defendant is not the owner of the suit premises having no right, title or interest in the suit property on the basis of sale documents dt. 02.07.2003 and that the plaintiff is not his tenant and that the defendant has no right to demand any rent from the plaintiff and that the defendant has no concern whatsoever with the suit Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 22/54 property. The onus is upon the plaintiff Rakesh Maini to show that the documents dated 02.07.2003 which are Ex.PW-1/DX1 to Ex.PW-1/DX10 and subsequent rent agreements/receipts were signed by the plaintiff Rakesh Maini on being coerced / threatened by the defendant or he was made to sign under misconception of fact as it is claimed that he signed the documents presuming them to be loan documents. During his testimony as PW1, Plaintiff Rakesh Maini has admitted his signatures on documents Ex.PW-1/DX1 to Ex.PW-1/DX7, all dated 02.07.2003 but has denied their contents and in cross examination, he denied that he is a tenant of the defendant at the suit property on a monthly rent of Rs. 6000/- per month and that he had sold the suit property to the defendant by way of GPA, SPA, Agreement to Sell, receipt and possession letter. He claimed that defendant got his signatures on some blank papers, on some typed and on some stamp papers. He denied the suggestion that he had signed the documents Ex. PW-1/DX1 to PW-1/DX7 after reading and understanding the contents written on those documents. He admitted that document Ex. PW-1/DX1 to PW-1/DX7 were already typed when he visited sub Registrar office alongwith defendant.. He also admitted that he appeared before the Sub Registrar and told him that he had received the money on his asking but claimed that he received the loan amount. PW-1 denied the suggestion that the Sub Registrar Janakpuri had narrated the contents of Ex. PW-
Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 23/54 1/DX1 to PW-1/DX7 in vernacular to him. He denied the suggestion that Rs. 3 lacs were paid by him to defendant as security towards tenancy of the suit property. He denied the suggestion that defendant has returned the security amount of Rs. 3 lacs in three installments of Rs. 1 lacs each and claimed that he had taken further loan of Rs. 3 lacs from the defendant. He denied the suggestion that he has sold the suit property on 02.07.2003 to defendant and requested him to let out the same on rent to Rakesh Maini. He denied the suggestion that Mr. Subhash Arora accompanied him for execution of documents Ex. PW- 1/DX1 to PW-1/DX7 and signed as a witness. He has stated that he has studied English from class 6 to class 10. He admitted that he had handed over the entire chain of documents of the suit property at the time of execution of document Ex. PW-1/DX1 to PW-1/DX7. However, he volunteered that he handed over the chain of documents as he had executed loan documents. He admitted that no document was prepared mentioning that the chain of document of suit property and execution of document Ex. PW-1/DX1 to PW-1/DX7 as a surety and guarantee against the loan. He admitted that he had not given any notice to defendant for not issuing receipts for paid interest. He denied that he used to pay rent of Rs. 6,000/- per month to defendant after the expiry of the 1 st tenancy. He admitted receipt of Rs. 6 lacs by cheque on 02.07.2013. He denied the suggestion that he has no right to cancel document Ex.
Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 24/54 PW-1/DX1 to PW-1/DX7 as he himself went to office of Sub Registrar for execution of sale documents. He admitted receipt of notice Ex. PW-1/2 whereby tenancy was terminated. However, he volunteered that he is not the tenant but he is owner of the property. He denied that after receipt of the notice he never approached the defendant Deepak Maini. He admitted that he signed Ex. PW-1/9 and PW-1/10 after reading and understanding thereof. He denied the suggestion that he has no right to cancel/revoke GPA and WILL vide Ex. PW-1/9 and Ex. PW-1/10. He denied that he has turned dishonest after selling the suit property to defendant against consideration. During further cross examination after filing of additional affidavit as Ex. PW-1/B he admitted that Kurnesh Sharma executed registered GPA in favour of Manjeet Singh Dhingra who in turn executed GPA in his favour Ex. PW-1/2. He admitted that he executed GPA in favour of Deepak Maini but claimed that fraud was played on him and he denied the contents of Ex. PW-1/DX1. He denied that GPA Ex. PW- 1/DX1 was signed by him with is free will and after reading and understanding the contents thereof. He admitted that there was no conveyance Deed executed by Kurnesh Sharma in favour of Manjeet Singh Dhingra and there is no Conveyance Deed in his favour, also. He denied the suggestion that Conveyance deed dt. 27.04.2009 executed by Kuresh Sharma in favour of Deepak Maini is legal, valid and genuine. He denied the Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 25/54 suggestion that Kurnesh Sharma was having right to execute Conveyance Deed in favour of any person in respect of the suit property.
40. The plaintiff is claiming that he had revoked the GPA and WILL vide revocation documents Ex. PW1/9 an d Ex.PW1/10. However, the legality of such revocation is to be tested on the touchstone of applicable legal provisions.
41. Sections 201, 202 & 203 of the Indian Contract Act deals with revocation of attorney:
201. Termination of agency. An agency is terminated by the principal revoking his authority, or by the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors.
202. Termination of agency, where agent has an interest in subject-matter. Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
Illustrations
(a) A gives authority to B to sell As land, and to pay Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 26/54 himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death. (b) A consigns 1,000 bales of cotton to B, w who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death."
Sec.203. When principal may revoke agent's authority- The principal may, save as is otherwise provided by the last preceding section, revoke the authority given to his agent at any time before the authority has been exercised so as to bind the principal."
42. Therefore, once the power of attorney is a registered power of attorney, this document can surely be looked into in terms of Section 202 of the Contract Act, which provides for irrevocability of a power of attorney given for consideration and such GPA cannot be cancelled. The act of authorisation on behalf of donor/granter creates a contract of agency. Section 207 of the Indian Contract Act, 1872 provides that "Revocation or renunciation may be Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 27/54 expressed or may be implied in the conduct of that principal or agent respectively". On the point of right of the plaintiff or donor of a GPA to revoke or cancel a Power of Attorney, the law is very clear that a Power of Attorney executed without any consideration can be revoked anytime by express terms or implied conduct of the donor/principal but if a GPA is executed creating or having an interest in favour of the agent/donee, it cannot be revoked being barred by Section 202 of the Indian Contract Act, 1882.
43. Hon'ble Supreme Court in the case of Suraj Lamp & Industries (P) ... vs State Of Haryana & Anr SPECIAL LEAVE PETITION (C) NO.13917 OF 2009 vide order dated 11.10.2011 has held in para 12 as under:-
"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 Transfer of Property 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 Transfer of Property Act). According to Transfer of Property Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of Transfer of Property Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 28/54 of sale does not create any interest or charge on its subject matter.
44. In the case of Corporation Bank, Bangalore vs. Lalitha H. Holla, AIR 1994 Kant 133 Hon'ble High Court of Karnataka held as under:
"A power of attorney executed in favour of an agent recording or recognizing an interest of the agent/attorney in the property which is the subject matter of the agency, cannot be revoked or terminated, even if the instrument states specifically that it is revocable, as then it would be a power coupled with an interest but a power of attorney simplicitor which merely authorizes an agent to do certain acts in the name of or on behalf of the executant at any time, that power of attorney can be revoked or cancelled by the executant at any time in spite of fact that the instrument states that the power of attorney is irrevocable."
45. It is notable that Section 202 of the Indian Contract Act, 1872 bars termination of agency to the prejudice of agent in case an interest has been created in favour of the agent unless there is an express contract to the contrary. In the present case, the documents Ex. PW1/DX1 to Ex.PW1/DX7 were executed for valuable consideration empowering defendant to deal with property in any manner including alienation, eventhough, plaintiff is Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 29/54 claiming the amount he received was not towards sale of suit premises but it was a loan amount. Therefore, section 202 of Indian Contract Act becomes applicable and revocation of Ex. PW1/DX1 to Ex.PW1/DX7 by executing documents Ex. PW1/9 and Ex.PW1/10 is of no help to the plaintiff as law bars such revocation.
46. Now, the stand of the plaintiff that he has been defrauded by defendant in execution documents Ex. PW1/DX1 to Ex.PW1/DX7 is to be tested as though admitting his signatures on such documents plaintiff denied their contents and therefore admissibility of such a stand in his testimony in view of various provisions of Indian Evidence Act is to be examined.
47. As per Sections 91 and 92 of the Evidence Act, once there is a written document of transaction, it cannot be contradicted by oral evidence. However, admission of signatures on a document does not per se or automatically prove its contents. In U. Sree v Srinivas, (2013) 2 SCC 114, the Supreme Court held that "Mere admission of a document in evidence does not amount to its proof." There is no dispute that the burden to prove the case is always on those who come before the Court and seek relief from it for the protection of their rights. The Supreme Court in Anil Rishi vs Gurbaksh Singh, (2006) 5 SCC 558 held that-
Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 30/54 "In terms of Section 102 (Indian Evidence Act, 1872) the initial onus is always on the plaintiff to prove his case and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances if any, which would disentitle the plaintiff to the same."
48. A document is defined in Section 3 of Indian Evidence Act as under:-
"Document- Document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter‟.
49. Section 59 of Indian Evidence Act, 1872 states that except contents of documents, all other facts can be proved by oral evidence. The contents of a document thus cannot be proved by oral testimony. Section 61 of Indian Evidence Act, 1872 clearly states that the contents of the document can be proved either by primary or secondary evidence.
50. Section 62 of Indian Evidence Act defines primary evidence -
"Section 62 Primary evidence means the document itself produced for the inspection of the Court.
Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 31/54 Explanation 1.--Where a document is executed in several parts, each part is primary evidence of the document:
Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 2.--Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
51. Section 64 is relevant and is reproduced as under:-
"Proof of documents by primary evidence.-- Documents must be proved by primary evidence except in the cases hereinafter mentioned."
52. Section 64 of the Indian Evidence Act, 1872 mandates that the documents must be proved by primary evidence except for the cases, thus enumerated. Thus, the best evidence to prove a document is the primary evidence i.e the original documents. The law permits that where a document cannot be proved by primary evidence; the same can be proved by secondary evidence.
53. It is noteworthy that law provides for the exclusion of Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 32/54 oral by documentary evidence. Sections 91 to 100 of the Indian Evidence Act are based upon the principle that the best evidence must always be given, and the acceptance of the fact that no matter how good a person's memory may be, the best evidence of the content of a document is the document itself.
54. The principle does not demand the largest amount of evidence it simply requires the best evidence and since this is documentary evidence, oral evidence is excluded. The general rule excluding oral evidence in the presence of documentary evidence is laid down in Sections 91 and 92. The general rule is subject to the 'exceptions' contained in Sections 93 to 100 which speak of how oral evidence may be used to interpret documents.
55. In Section 92 the legislature has prevented oral evidence being adduced for the purpose of varying the contract as between the parties to the contract; but, no such limitations are imposed under Section 91. Section 91 is concerned solely with the mode of proof of a document which limitation improved by Section 92 relates only to the parties to the document. If after the document has been produced to prove its terms under Section 91, provisions of Section 92 come into operation for the purpose of Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 33/54 excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, adding or subtracting from its terms. Both these provisions are based on "best evidence rule". In Bacon's Maxim Regulation 23, Lord Bacon said "The law will not couple and mingle matters of specialty, which is of the higher account, with matter of averment which is of inferior account in law". It would be inconvenient that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of parties should be controlled by averment of the parties to be proved by the uncertain testimony of slippery memory."
56. In Sudir Engineering Company v. Nitco Roadways Ltd. 1995 (2) AD (Delhi) 189, it was held by Hon'ble High Court of Delhi that "any document filed by either party passes through three stages: (a) when they are filed
(b) when they are tendered or produced in evidence and (c) when they were are held to be either proved or not proved by the court." Under Order XIII Rule 4 (1) CPC every document admitted in evidence in the suit should bear the number and title of the suit; name of the person producing the documents, the date on which it is produced and statement of its having been so admitted and the endorsement shall be signed or initialled by the Judge. It was held that the right of the party disputing the document Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 34/54 to argue that it was not proved, will not be taken away merely because it had not objected to the admissibility of such document. It was held that the admission of a document in evidence is therefore not be confused with proof of a document. It was held that "when called upon to form a judicial opinion whether document has been disproved or not proved, the Court would look not at the document alone or only at the statement of the witness standing in the box; it would take into consideration probabilities of the case as emerging from the whole record".
57. The other point that is relevant is whether a party can give oral evidence concerning the intention of the parties at the time of the execution of a document which is not reflected in such document. It was explained by the Supreme Court in Roop Kumar v. Mohan Thedani that Section 91 of the Indian Evidence Act, 1872 (EA) "merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known some times as the "best evidence rule". It is in really declaring a doctrine of the substantive law, namely, in the case of a written contract, that of all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it".
Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 35/54
58. It was further explained in paras 17 to 18 in Roop Kumar (supra) as under (AIR SC @) p.2424-25):-
"17. It is likewise a general and most inflexible rule that wherever written instrument are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence. (See Strakie on Evidence p. 648).
59. In para 21 of the Roop Kumar (supra), after discussing the rationale behind Sections 91 and 92 of the Indian Evidence Act, it was held as under (AIR SC @ p.2425):-
"21. The grounds of exclusion of extrinsic evidence are (i) to admit inferior evidence when law requires superior would amount to nullifying the law, (ii) when parties have deliberately put their agreement into writing. It is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 36/54 be paced beyond the reach of future controversy, bad faith and treacherous memory."
60. Keeping the above position of law in view, this court proceeds to examine the nature of the documents tendered by the Plaintiff and the stand of the Defendant visàvis such documents. What is important to note here is that the documents sought to be relied upon by the Plaintiff are registered documents which are purportedly executed in the presence of the Sub Registrar in whose office, the documents were registered. As explained by the Supreme Court in Roop Kumar v. Mohan Thedani (supra), the parties cannot be permitted to lead oral evidence to deny the contents of the registered documents, as such a practice "would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence". It also militates against the rule of best evidence as contained in Sections 91 and 92 of the Indian Evidence Act. Perusal of the documents, GPA dt. 02.07.2003 Ex. PW1/DX1, receipt dt. 02.07.2003 Ex. PW1/DX2, affidavit of the plaintiff dt. 02.07.2003 Ex. PW1/DX3, possession letter dt. 02.07.2003 Ex. PW1/DX4 and Agreement to Sell dt. 02.07.2003 Ex. PW1/DX5, SPA dt. 02.07.2003 Ex. PW 1/DX6, WILL dt. 02.07.2003 Ex. PW1/DX7 executed by Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 37/54 the plaintiff in favour of the defendant show that they are all registered documents duly registered at the Sub Registrar Office, Janak Puri, New Delhi. The said documents bear photographs of both the parties, as well as, the witnesses.
61. Plaintiff has not examined subregistrar before whom documents were registered in support of his case and an adverse inference has to be drawn against him. When a person admits his signatures on a document, the presumption is that he also knows the contents of the document. In the present case the plaintiff has admitted his signatures on all the documents and denied the contents of the documents. Mere denial of the contents is of no avail to the plaintiff when he has specifically admitted his signatures on the documents. Moreover, when he admits his signatures the presumption is that the same was executed after obtaining the consideration.
62. Plaintiff in his testimony also stated that he handed over the title deeds/documents of the suit flat to the defendant as security of loan taken by him from defendant. No prudent person will hand over the title documents without consideration. The testimony of PW2, PW2A, PW3 and PW3A is also of no help to the plaintiff as PW2 Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 38/54 admitted that he had deposed about the loan as stated to him by plaintiff. The bank officials have not proved anything which may support the case of plaintiff that he only took loan from defendant. The plaintiff has not placed his ITR for the relevant year which may show that he has declared the amount of loan from the defendant in his ITR. The official from SubRegistrar office also doesn't prove anything about the alleged loan. On the other hand, defendant in his cross examination of PW1 has demonstrated that not only plaintiff is a literate person and understands English language but also shown that documents Ex.PW1/DX1 to Ex.PW1/DX7 were signed by the parties and photographs of plaintiff are affixed on such documents. All these documents are registered for a valuable consideration and their contents are to be read to gauge the intention of parties. Oral evidence to the contrary is not admissible.
63. Thus, the documentary evidence is much more creditworthy than the oral evidence. The oral evidence to the contrary has to be discarded in view of the law discussed above and because the plaintiff has not denied execution of the documents/receipts or the signatures thereon per se. Thus, there is no reason to disbelieve the dates of payment as mentioned in the documents/receipts Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 39/54 and relied upon by the defendant it is impermissible for the plaintiff to lead oral evidence which contradicts what is stated in the documents which admittedly were executed by the plaintiff in favour of Defendant. Reliance is placed on the decisions in Roop Kumar v. Mohan Thedani AIR 2003 SC 2418; Gurdial Singh v. Raj Kumar Aneja (2002) 2 SCC 445 and Surjit Sachdev v. Kazakhstan Investment Services Pvt. Ltd. 66 (1997) DLT 54 (DB).
64. In the considered view of this Court, the burden was on the plaintiff to show some contemporaneous evidence which would reflect the intention of the parties different from what is stated in the above documents. This is also the requirement of law in terms of Sections 91 and 92 Indian Evidence Act as explained in Roop Kumar v. Mohan Thedani, but the plaintiff has miserably failed to discharge his burden. Accordingly, the issue no.(ii), (iii) and (iv) as framed in civil suit no. CS No. 611063/16 are decided against the plaintiff and in favour of the defendant.
65. Now I shall deal with the additional issues framed on 22.02.2019 as under:-
(vi) "Whether conveyance deed dt. 27.04.2009 is forged and fabricated? OPP"
The onus to prove the Conveyance Deed dt.
Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 40/54 27.04.2009 filed by defendant in CS No. 11565/16 is forged and fabricated is upon Rakesh Maini as in the amended Written Statement filed by Rakesh Maini in CS No. 11565/16 he has alleged in the Written Statement that the Conveyance Deed is false forged and fabricated and therefore it be declared null and void. It is also claimed that Sh. Kurnesh Sharma the original allottee of the suit premises never executed any document of attorney or Conveyance Deed in favour of Deepak Maini and since the said Conveyance Deed was neither filed in the Written Statement by Deepak Maini in Civil Suit no. 611063/16 (lead case) or in the replication in CS No. 11565/16, it is a manipulated document procured to defeat the claim of the defendant Rakesh Maini.
66. The purchaser would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the plaintiff. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof.
67. The defendant Deepak Maini is claiming that Conveyance Deed was executed in his favour on the basis Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 41/54 of GPA Ex. PW-1/DX1 as the original allottee has executed GPA in favour of Manjeet Singh Dhingra and said Manjeet Singh Dhingra executed GPA in favour of plaintiff Rakesh Maini who in turn executed the GPA Ex. PW-1/DX1 in his favour and which empowers him to get the property registered in his name and accordingly he got the Conveyance Deed registered executed in his favour which is a genuine document affirming ownership rights in the suit property which were already in place in view of document Ex. PW-1/DX1 to Ex. PW-1/DX7.
68. An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor. Furthermore in the matter of Suraj Lamp's (supra) it was reiterated by Hon'ble Supreme Court that :- " We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53A of the Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 42/54 Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales." (emphasis added)
69. On the other hand, DW-1 in his cross examination, even though admitted that he had not mentioned the Conveyance Deed dt. 27.04.2009 in his original plaint (CS 11565/16) or in the replication but clarified that after amendment of the pleadings, in the said civil suit there was due mention of the conveyance Deed. I have gone through the contents of the Conveyance Deed which mentions the name of the initial allottee as Sh. Karunesh Sharma. The Conveyance Deed is duly entered in the records of DDA vide reference no. L.No.-P04052007518269 on file no. F.106(01)91/SFS/PA/II. The description of the property is also mentioned in the Conveyance Deed.
70. In his examination in chief PW-1 i.e. plaintiff reiterated the allegation that conveyance Deed filed by the defendant is a sham document and therefore it be declared null and void. However, apart from claiming the falsity of Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 43/54 Conveyance Deed the plaintiff has not examined any witness from lease administration Branch of Delhi Development Authority (DDA) which deal with issuance of Conveyance Deed of properties under the jurisdiction of DDA. The plaintiff has also not taken any steps to examine either the Assistant Director who issued the Conveyance Deed or any of the witnesses of said Conveyance Deed despite availability of particulars in the Conveyance Deed itself. Admittedly, the plaintiff has neither moved any application before the concerned authorities of DDA for cancellation of said Conveyance Deed nor filed any criminal complaint against the defendant alleging the falsity of said Conveyance Deed. During cross examination after filing of additional affidavit as Ex. PW-1/B, plaintiff admitted that Kurnesh Sharma executed registered GPA in favour of Manjeet Singh Dhingra who in turn executed GPA in his favour Ex. PW-1/2. He admitted that he executed GPA in favour of Deepak Maini but claimed that fraud was played on him and he denied the contents of Ex. PW-1/DX1. He denied that GPA Ex. PW-1/DX1 was signed by him with is free will and after reading and understanding the contents thereof. He admitted that there was no conveyance Deed executed by Kurnesh Sharma in favour of Manjeet Singh Dhingra and there is no Conveyance Deed in his favour, also. He denied the suggestion that Conveyance deed dt. 27.04.2009 executed by Kurnesh Sharma in favour of Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 44/54 Deepak Maini is legal, valid and genuine. He denied the suggestion that Kurnesh Sharma was having right to execute Conveyance Deed in favour of any person in respect of the suit property. He admitted that there is no conveyance Deed executed by Karunesh Sharma in favour of Manjeet Singh Dhingra or plaintiff Rakesh Maini.
71. In view of the above findings the issue is decided against the plaintiff Rakesh Maini as he has failed to prove the falsity of Conveyance Deed.
72. Now I shall deal with the issue no. (i) & (ii) framed on 22.11.2013 and additional issue as framed on 09.10.2015, in CS No. 11565/16 tilted as Deepak Maini Vs. Rakesh Maini:-
(i) Whether the plaintiff (Deepak Maini) is entitled to decree of possession against the defendant qua suit property bearing no. GH-10/61-D, sunder Apartment, Paschim Vihar, New Delhi as shown in the site plan.? OPP
(ii) Whether the plaintiff (Deepak Maini) is entitled to decree of Rs. 72,000/- towards arrears of rent, as prayed for? OPP Additional Issue: Whether plaintiff (Deepak Maini) is entitled for damaged/mesne profit @ Rs. 10,000/- per month for unauthorized occupation from 01.05.2009 till the possession of the suit property is handed over to the Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 45/54 plaintiff ? OPP
73. The onus to prove the above issues is upon the defendant Deepak Maini. The defendant Deepak Maini is claiming the he become the owner/landlord of the suit premises in view of Ex. PW-1/DX1 to Ex. PW-1/DX10 and original receipts of house tax Ex. DW-1/1, complete previous chain of ownership Ex. DW-1/2 (colly), legal notice dt. 18.03.2009 Ex. DW-1/3 and its reply Ex. DW-
1/4 as well as Conveyance Deed Ex. DW-1/5. He has claimed that he inducted the plaintiff as tenant on 02.07.2003 which was extended from time to time and since the plaintiff was not paying the rent he issued the legal notice asking him to vacate the premises and pay the due rent. During cross examination, DW-1 Deepak Maini admitted that Kurnesh Sharma was the initial allottee and he had not executed any GPA/SPA in favour of Deepak Maini. He also admitted that suit property was sold by Kurnesh Sharma to Manjeet Singh Dhingra through GPA and said Manjeet Singh Dhingra has also not executed any GPA/SPA in his favour. He denied the suggestion that Manjeet Singh Dhingra sold the suit property to Sarla Rani. However, he volunteered that Manjeet Singh Dhingra has executed GPA in favour of the plaintiff. He also admitted that Sarla Rani has not executed any documents in his favour but claimed that plaintiff Rakesh Maini has sold the suit property to him. He denied that Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 46/54 plaintiff has requested for loan of Rs. 6 lacs and in the garb of executing loan documents signature/thumb impression of plaintiff on documents were taken by him which are 15 in numbers. He denied the suggestion that he had obtained 6 passport size photographs of the plaintiff and misused the same. He denied the suggestion that he had promised to return all the original documents to the plaintiff on repayment of the loan. He also denied the suggestion that he had promised that he will destroy all the documents on which plaintiff has put his signature/thumb impression. He denied the suggestion that neither he read the contents of the documents prepared on 02.07.2003 nor allowed the plaintiff to do the same before signing them. He denied the suggestion that he had obtained the signature/thumb impression of plaintiff after putting him under threat. He denied the suggestion that he issued the two cheques to the plaintiff towards friendly loan and volunteered that same were issued towards sale price of the property. He admitted that plaintiff is in possession as on date but denied the suggestion that he is not in possession as tenant. He denied the suggestion that Conveyance Deed dt. 27.04.2009 is forged and fabricated and therefore only same is not mentioned in the Written Statement and list of documents. He admitted that in the original plaint as well as replication filed by him against the plaintiff there is no mention of Conveyance Deed dt. 27.04.2009. However, he volunteered that those pleadings were amended and there Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 47/54 was due mention of Conveyance Deed. He admitted that plaintiff has paid Rs. 3 lacs to him on 09.07.2003 but claimed that same was given as security deposit of the tenancy created by him in favour of plaintiff. He denied the suggestion that the said Rs. 3 lacs were given as repayment of loan. He admitted that condition of security deposit is not mentioned in any of the three rent agreements. He volunteered that same is not mentioned as they were prepared prior to handing over of security deposit. He admitted that the security deposit is not mentioned in the legal notice dt. 18.03.2009. He admitted that there is no separate documents prepared towards security deposit but denied the suggestion that no such amount was given as security deposit and therefore, no separate document was prepared. He denied that since August 2003, plaintiff was required to pay Rs. 3000/- towards the interest portion of the loan which was duly paid. He volunteered that Rs. 3000/- was due towards monthly rental. He denied that plaintiff took another loan of Rs. 1 lac in October 2007 and another loan in January 2008 and December 2008 also. He admitted he had never issued any receipts towards any payment made by plaintiff. He denied the suggestion that he got issued false legal notice and plaintiff visited his premises from 22.03.2009 to 28.03.2009 and also on 10.04.2009 and 20.04.2009 requesting to take back the legal notice. He admitted that on 08.12.2009 plaintiff requested for revocation of GPA Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 48/54 and WILL dt. 02.07.2003. He denied that contents of documents Ex. PW-1/DX1 to PW-1/DX10 are wrong and incorrect. He denied that he kept the previous chain of documents as security towards loan. He denied the suggestion that he is not the owner/landlord of the property and plaintiff is not the tenant. He also denied the suggestion that plaintiff is residing in the capacity of the owner and the alleged sale documents and rent agreements were never executed between the parties.
74. The defendant is relying upon the rent agreements Ex.
PW-1/DX8, PW-1/DX9 & PW-1/DX10 to show the relationship of landlord and tenant. The plaintiff is claiming that he signed the said documents under the belief that same are part of the documents prepared for the loan advanced by defendant to plaintiff. However, in his cross examination PW-1 admitted that he had studied English from class VI to class X and has signed the documents but claimed that he was made to sign the documents for advancement of the loan by defendant and he has not read the documents before signing the same. During admission/denial of documents he had denied the contents of Ex. PW-1/DX8, PW-1/DX9 & PW-1/DX10 but admitted his signatures. As observed in the preceding paragraphs while deciding the issue no.(ii),(iii) & (iv) as framed in civil suit no. 611063/16 wherein reference was given to the judgment in the matter of Roop Kumar v. Mohan Thedani Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 49/54 (supra), the parties cannot be permitted to lead oral evidence to deny the contents of the registered documents, as such a practice "would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence". Despite the name and address of Ashok Bhatia and Pradeep Kumar who are witness to rent agreements is available, no steps have been taken by the plaintiff to examine said witnesses who could have proved the contention of the plaintiff that he signed the documents presuming them to be loan documents and not the rent agreements. I have gone through the originals of Ex. PW- 1/DX8, PW-1/DX9 & PW-1/DX10 which in capital letters mentioned on the very 1st page of the document the word 'RENT AGREEMENT'. Admittedly, the plaintiff is not illiterate and has studied English language upto class X which implies that he understands the meaning of word 'Rent Agreement'. Moreover, there is no denial from plaintiff that he has received legal notice dt. 18.03.2009 Ex. PW-1/2 whereby the defendant has asked him to vacate the premises being his tenant and pay the outstanding rent for the preceding months. However, as per reply Ex. PW-1/3 to the given notice the plaintiff has set up a defence that he is not the tenant of defendant and is occupying the suit premises being the owner and had taken loan on various occasions from the defendant. However, as observed in preceding paras the plaintiff has failed to show Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 50/54 that he is the owner of the suit premises and the documents relied upon by the defendant are sham. On the other hand, the defendant has proved on record not only the execution of documents Ex. PW-1/DX1 to PW-1/DX10 but also Conveyance Deed Ex. DW-1/5 whereby DDA has registered the property in the name of the defendant. Hence, the defendant has discharged his initial burden of proving the relationship of landlord and tenant between the parties and the onus therefore shifted upon the plaintiff. But plaintiff has failed to discharge said onus of showing that there is no relationship of landlord and tenant. Furthermore, PW-1 in his cross examination admitted that the electricity connection is in the name of defendant but claimed that defendant got the electricity connection in his name in collusion with officials of the electricity department. However, no evidence is led to show such collusion. There is no denial by plaintiff that the house tax receipts of the suit property are in the name of defendant. The defendant is claiming that plaintiff is not paying the rent since July 2008 and in view of the service of legal notice, plaintiff become unauthorized occupant from 01.05.2009. It has been admitted by plaintiff that no receipts are issued by the defendant for all the payments made by him to defendant. The plaintiff has not denied that he has paid amount to the defendant on monthly basis which as per claim of the defendant is the rent but as per claim of plaintiff the said amount were paid towards the Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 51/54 installment of the loan taken by plaintiff from the defendant. Plaintiff has examined PW-3 Chiranjee Lal but the said witness has not produced any record but only produced the guidelines of weeding out of the record and therefore this testimony is of no help to the plaintiff. Plaintiff has also examined PW-2A who also stated that the record of year 2003 is not available with the bank in view of RBI guidelines for maintenance of record for 10 years only. However, he has admitted that the bank statement for the period 01.01.2003 to 22.05.2004 Ex. PW-1/7 was issued by his bank. But no questions were put to the witness PW-2A about the entry dt. 10.07.2003 where Rs. 3 lacs has been debited by cheque in favour of Deepak as to whether the said amount was credited in the account of Deepak Maini defendant or any other person by the name of Deepak. There is no denial from the plaintiff that despite service of legal notice dt. 18.03.2009 whereby he was asked to vacate the premises by 30.04.2009 he continues to use and occupy the suit premises. As discussed above, the relationship of landlord and tenant is established between the parties and therefore, the act of plaintiff to use and occupy the premises shows that he is liable to pay the rent/user charges to the defendant. Accordingly, the above issues are decided in favour of the defendant and against the plaintiff as he has shown that he is the owner/landlord and plaintiff is his tenant in respect of the suit premises.
Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 52/54
75. In view of the above findings in respect of all the issues discussed, I am satisfied that the plaintiff Rakesh Maini has failed to prove his case and accordingly, suit of plaintiff CS No. 611063/16 titled as "Rakesh Maini Vs. Deepak Maini" stand dismissed. However, the defendant has proved his case and therefore, the suit of defendant CS no. 11565/16 titled as "Deepak Maini Vs. Rakesh Maini"
is entitled to be decreed. Ordered accordingly.
RELIEF:-
76. In view of the above, the defendant Deepak Maini is entitled to decree of possession against plaintiff Rakesh Maini qua suit property bearing no. GH-10/61-D, sunder Apartment, Paschim Vihar, New Delhi as shown in the site plan and he is also entitled to decree of Rs. 60,000/- towards arrears of rent for the period July 2008 to April 2009. Furthermore Deepak Maini is entitled for damaged/mesne profit for the use and occupation of the suit premises from 01.05.2009 till he vacates the same. However, since the rate of rent was Rs. 6000/- per month only, I am satisfied that the rate of damages/mesne profit must not go beyond the said rate of rent. Accordingly, Deepak Maini is entitled to receive damages/mesne profit @ Rs. 6,000/- per month for unauthorized occupation by plaintiff Rakesh Maini from 01.05.2009 till the possession Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 53/54 of the suit property is handed over by Rakesh Maini to Deepak Maini.
77. Copy of the judgment be uploaded on the website.
Announced in the Open Court through Video Conferencing on 31st of January, 2022. (Pawan Singh Rajawat) ADJ-08/West THC: Delhi Rakesh Maini Vs. Deepak Maini (CS No.611063/2016 Deepak Maini Vs. Rakesh Maini (11565/2016) Page: 54/54