Delhi District Court
Sh.Nand Lal vs Sh.Gowardhan on 26 April, 2012
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
Suit No.480/96.
Sh.Nand Lal
S/o.Sh.Hira Singh
R/o.Village Paprawat,
Najafgarh, Delhi. .............Plaintiff
Vs.
01. Sh.Gowardhan
Through his legal heir
Sh.Sukhchain
02. Sh.Ram Phal
S/o.Sh.Roop Ram
Both R/o.Village Paprawat,
Najafgarh, Delhi. ................Defendants
Date of institution : 28.10.1996.
Date of reservation : 09.04.2012.
Date of pronouncement : 26.04.2012.
JUDGMENT
01. This is a suit for specific performance, declaration and perpetual injunction as filed by plaintiff against the defendants.
02. In brief the facts of the case as made out in the plaint are that the defendant no.1 wanted to sell plot no.262/1 Village Paprawat, Delhi (Lal Dora) measuring 950 sq.yards (hereinafter called suit property) to the plaintiff for a sum of Rs.95,000/- and defendant no.1 was the absolute owner and in possession of the aforesaid plot.
Suit No.480/96 page 1 of page 14
03. The plaintiff agreed to purchase the suit plot from defendant no.1 vide agreement dated 10.05.1982 and paid a sum of Rs.10,000/- to the defendant no.1 as earnest money and the balance of Rs.85,000/- was to be paid by plaintiff to the defendant no.1 in presence of Sub Registrar II, Kashmiri Gate, Delhi, at the time of registration of proper sale deed.
04. It is case of the plaintiff that as per agreement, defendant no.1 was to approach the authorities to get the No Objection Certificate (NOC). Defendant no.1 was to inform the plaintiff regarding the receipt of No Objection Certificate and then parties were to get the sale deed executed. It is stated that it was assured by the defendant no.1 to plaintiff that property under sale is free from all sorts of encumbances i.e.sale, mortgage, gift etc. The defendant no.1 also gave the possession of the plot in question to the plaintiff. It is stated that on 16.12.85 the defendant no.1 approached the plaintiff and confirmed the said agreement and receipt of earnest money and it was also confessed by the defendant no.1 that he would inform the plaintiff about the receipt of NOC, for which he has already applied for to the competent authorities within a week of its receipt and further received another sum of Rs.25,000/- as part payment from the plaintiff and the balance payment of Rs.60,000/- was to be received after the receipt of NOC and the said agreement was also recorded in writing in presence of witnesses.
05. It is further case of the plaintiff that the plaintiff had been approaching the defendant from time to time and had been asking defendant no.1 to obtain NOC from the competent authorities as stipulated in the agreement and to receive the balance payment and to execute proper sale deed in his favour but the defendant no. no.1 had been avoiding to execute the same on one pretext or the other, but had been assuring the plaintiff that since he had agreed to sell the property to him and has Suit No.480/96 page 2 of page 14 received earnest money and part payment from the plaintiff and the possession of the property was also with the plaintiff, so the defendant no. 1 would execute the sale deed as soon as he gets NOC from the competent authorities. It is claimed that since plaintiff and defendant no.1 belongs to same village and were under the control of Gram Pnachayat, the plaintiff had been complaining about the non execution of the sale deed to the members of Panchayat, who at many times called the defendant no.1. The defendant no.1 also assured the members of the Gram Panchayat that he is not a dishonest man and has already received the earnest money and part payment for the plot and has also given possession of the same to the plaintiff, so the plaintiff should not worry about the execution of the sale deed and even otherwise the plaintiff had become the owner of property being in possession by way of adverse possession.
06. It is stated that value of the property these days has increased considerably and it seems to the plaintiff that defendant no.1 has become dishonest and is not interested to execute the sale deed in favour of plaintiff and to receive the balance amount. It is further stated that on 25.10.1996 defendant no.2, who is real brother of defendant no.1, approached the plaintiff and said that defendant no.2 was interested to purchase the said plot from defendant no.1 and as such, the plaintiff should given the possession of the plot to defendant no.1. From the conduct of defendant it seems that defendant no.1 and 2 are hatching some conspiracy against the plaintiff.
07. It is stated that plaintiff is and always being willing to complete the transaction of sale and purchase of the said plot as per terms and conditions of agreement dated 10.05.1982 and 16.12.85. Further since defendant no.1 has failed to meet his part of contract, threatened action of defendants is wrong and illegal. It is claimed that documents if any Suit No.480/96 page 3 of page 14 executed between defendant no.1 and 2 in respect of the plot in question are only collusive and defraud and to cheat the plaintiff and the same are bound to be cancelled and withdrawn from all intents and purposes. Hence, the present suit for a decree of Specific performances directing the defendant no.1 to obtain NOC from the competent authorities and to execute the sale deed in respect of property in question after receipt of Rs. 60,000/- as per terms and conditions of agreement dated 10.05.1982 and 16.12.1985 and for a decree of declaration that documents if any executed by defendant no.1 in favour of defendant no.2 in respect of plot in question be declared as void abinitio, illegal, unoperative in the eyes of law as well as for decree of perpetual injunction to restrain the defendants from interfering in possession of the plaintiff in respect of plot in suit, is filed.
08. Defendants filed their detailed written statement while taking preliminary objections that the suit of the plaintiff is not maintainable and merits dismissal as the suit property is not identifiable; there is no plot number 262/1 as mentioned by the plaintiff in para no.1 of the suit measuring 950 sq.yards situated in the Lal Dora Abadi, Village Paprawat, Delhi; defendant no.1 is not the absolute owner of the plot comprising in Khasra No.262/1 measuring one bigha and three biswas situated in the extended Lal Dora Abadi of village Paprawat, New Delhi and the same is jointly owned and possessed by the defendant no.2 and his other two brothers; suit of the plaintiff on the face of it is barred by time as the same has been filed after the lapse of about 14 years from the date of execution of alleged agreement to sell dated 10.05.1982; alleged agreement to sell is vague, void, uncertain and ambiguous and is not enforceable in the eyes of law; suit of the plaintiff is without any cause of action; plaintiff never remained in possession of the plot falling in Khasra No.262/1 as defendant no.1 never delivered the possession of the said plot to the plaintiff being Suit No.480/96 page 4 of page 14 not the absolute owner; plaintiff has got no locus standi to sign, file the plaint; plaintiff has not come to the court with clean hands; plaintiff has got no right, title, or interest of suit property; no agreement to sell as alleged was ever executed between the plaintiff and defendant no.1. On merits, the contents of the plaint have been denied while submitting that defendant no.1 is not the absolute owner and in possession of alleged plot no.262/1 and the defendants and their two more brothers namely Sh.Lakhmi Chand and Dharam Singh were/are joint owners and in possession of the plot and defendant no.1 has no right to transfer 950 sq.yards of the land as alleged. It is submitted that defendant no.1 has not received any earnest money from the plaintiff and that no such agreement to sell dated 10.05.1982 was executed by the defendant no.1 in favour of plaintiff. Therefore, there was no question of defendant no.1 to approach the authorities for obtaining NOC for execution of the sale deed of said plot. It is prayed by the defendants that suit of the plaintiff be dismissed with heavy cost.
09. Plaintiff filed the replication, whereby he denied the facts as mentioned in written statement while reaffirming the contents as made in the plaint.
10. From the pleadings of the parties following issues were framed vide order dated 28.11.2001 :-
1. Whether the agreement to sell dated 10.05.82 was executed by defendant no.1 in favour of plaintiff ? OPP.
2. Whether the earnest money was received by defendant no.1 as alleged and the possession of the disputed property was handed over to the plaintiff by defendant no.1 ? OPP.
3. Whether the suit is barred by limitation ?
4. Whether the plaintiff has cause of action to file the present suit ?
Suit No.480/96 page 5 of page 14
OPP.
5. Whether the particulars of the suit property and its measurement has been correctly given in theplaint and shown in the site plan(if not) its effect ? OPP.
6. Whether the alleged agreement to sell between the parties is legally enforcible, in view of the plea of the defendant regarding the joint ownership of the suit parties? Onus of Parties. OPP & OPD.
7. "Whether the plaintiff is entitled for the relief and specific performance, declaration and perpetual injunction as prayed for, if so, in what nature and against whom ? OPP.
8. Relief (if any).
11. In support of its case, plaintiff examined himself as PW-1, Sh.Chilu Ram S/o.Sh.Devi Singh as PW-2. On the other hand, defendants examined themselves as DW-1 and DW-2, Sh.Ashok Kumar, Halka Patwari, Village Paprawat as DW-3, Sh.Dayanand, Office Kanungo, Record Incharge as DW-4. Defendants also filed examination in chief of one Bholu Singh, but he was not produced for his cross examination.
12. It is important to note that during proceedings petitioner filed a separate application for initiating contempt of court proceedings against defendants under the provision of order 39 rule 2A r/w section 151 CPC on the allegation that vide order dated 04.11.96, this court was pleased to restrain defendants from forcible dispossessing the plaintiff from the suit plot, but on 29.11.96 defendant no.1 and 2 criminally trespassed in the property in dispute and started raising construction, which application was registered separately as M-25/98 and parties were allowed to lead evidence.
13. I have heard ld.counsel for parties and perused the record as Suit No.480/96 page 6 of page 14 well as written submissions as filed on behalf of parties. My issue wise findings are as under:-
Issue no.1.
14. Onus to prove this issue was upon the plaintiff. PW-1 deposed that defendant is resident of his village and an agreement to sale was executed between him and the defendant. PW-1 deposed that agreement Ex.PW-1/1 bears his signature at point A and of defendant at point B. PW-1 deposed that he also identify the signature of witness Sh.Mangal Singh at point 'C' who has already expired in January 1996. PW-1 deposed that he paid an amount of Rs.10,000/- on 10.05.1982 and the receipt was executed by the defendant which bears his signature at point X and is Ex.PW-1/2. It is further case of the plaintiff as deposed by him that he made part payment of Rs.25,000/- on 16.12.85, and vacant possession of suit property was handed over to him as well as another agreement was executed bearing his signature at point X and signature of defendant no.1 at point X-1. Signature of witness at point X-2 and X-3 and proved the agreement to sell as Ex.PW-1/3. The defence of the defendants is that no agreement to sell was ever executed between the plaintiff and the defendant no.1 and he never handed over the possession to plaintiff.
15. Ex.PW-1/1 is a document titled as sales Deed agreement, having signature of vendor and vendee and in column for witness, one signature are appearing at Sr.No.1. Ex.PW-1/2 is a receipt of Rs.10,000/- having signature of defendant Gowardhan i.e.defendant no.1 on revenue stamp and of witness at point X-1. Ex.PW-1/3 is an agreement regarding part payment of Rs.25,000/- dated 16.12.85, which is pursuant to agreement dated 10.05.82 Ex.PW-1/1. It also bears the alleged signature of defendant no.1 at point X-1 and of witnesses at point X-2 and X-3. It is Suit No.480/96 page 7 of page 14 matter of record that on 04.11.97 matter was listed for admission denial of documents and all these three documents Ex.PW-1/1 to Ex/PW-1/3 were shown to defendant no.1 for admission/denial, but despite sufficient opportunity granted to him to pursue his signatures on these document, the defendant no.1 failed to either admit or deny his signatures on these document, while taking plea that he has poor vision. Thus, the defendant no.1 at the stage of admission denial of documents, neither admitted nor denied his signature as appearing on the document, however, in his cross examination as recorded on 06.11.2003, when these documents were again shown to the witness, he denied his signatures and had not taken the plea of poor vision. In absence of specific denial of his signature, when these documents were put by the court to the defendant no.1, a presumption can be drawn that these documents were bearing the signature of defendant no. 1, as to why, he did not specifically admitted or denied his signatures. PW-2 Sh.Chilu Ram is the another plaintiff witness who deposed that fresh agreement regarding part payment was executed by the parties in his presence bearing his signature at point X. Section 73 of the Evidence Act also enables the court to examine the signature of a person with the admitted signatures. When the admission denial of documents were carried out by Ld.predecessor, the signatures of the defendant no.1 were also obtained on a plain paper, which is lying on the record and a perusal of same shows that defendant no.1 reluctantly put his signature as appearing different while written three times on that paper, however, I have perused the signature of defendant no.1 as appearing on Ex.PW-1/1 to 1/3 with his signature as appearing on the Vakalatnama, written statement and the signatures as appearing on Ex.PW-1/1 to 3 are similar to the signatures as appearing on Vakalatnama and written statement. In view of above, it is held that agreement to sell dated 10.05.82 Suit No.480/96 page 8 of page 14 i.e.Ex.PW-1/1 was executed by the defendant no.1 in favour of plaintiff and accordingly, this issue is answered in favour of plaintiff and against the defendant no.1.
Issue no.2.
16. Onus to prove this issue was upon the plaintiff. Ex.PW-1/1 as executed between the parties shows that plaintiff paid a sum of Rs.10,000/- to defendant no.1 as earnest money. The case of the plaintiff as deposed by him is that on 16.12.85 defendant no.1 took part payment of Rs. 25,000/- from him and handed over the vacant possession of suit property, however, in his cross examination PW-1 admitted that he does not have any documentary proof to establish that he had been in possession of plot in question. PW-1 Chilu Ram is the another witness produced by plaintiff who deposed that a part payment of Rs.25,000/- was given and defendant no.1 delivered possession of the plot to the plaintiff, however, in his cross examination. PW-1 confirmed that he has not seen the land of the present suit. When PW-2 has admittedly not seen the land of suit, how he can say that defendant no.1 handed over the vacant peaceful possession of the suit property, is unexplained. DW-4 Sh.Dayanand, Office Kanungo, Nazafgarh, Tehsil, also deposed that the possession of the suit land is not recorded of any person other than the co-owner of the said land i.e.defendant no.1 and his three other brothers. DW-4 also relied upon Khasra Girdhawri i.e.Ex.PW-4/1 to 4/19. In view of above, it is held that plaintiff has failed to prove that possession of the suit property was handed over to him by defendant no.1 on 16.12.1985 or thereafter. Accordingly, this issue is answered against the plaintiff and in favour of defendant no.1. Issue no.3.
17. Onus to prove this issue was upon the defendants. It is case of the plaintiff as deposed by PW-1 that it was agreed between the parties Suit No.480/96 page 9 of page 14 that the defendant no.1 shall take NOC from the authorities and then sale deed would be executed on payment of balance amount of Rs.85,000/- but the defendant no.1 did not obtain NOC from authorities, therefore, the suit of the plaintiff is not barred by limitation. On the other hand, it was submitted by ld.counsel for defendant that for the sake of arguments, even it is admitted that agreement dated 10.05.1982 and 16.12.85 were executed then what prevented the plaintiff to remain silent for 14 years in approaching the court. Now the question arises whether the suit of the plaintiff for specific performance, in these circumstances, is barred by limitation or not. Article 54 of the schedule to the Limitation Act 1963 (21 of 1963) reads thus :-
"For specific performance of a contract the period of limitation is 3 years. The limitation begins to run from the date of fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused."
18. In an authority reported as 1997 II AD SC 368 titled as K.S.Vidyanandan Vs. Vairavan, it was held by Hon'ble Supreme court as under:-
"Suit for specific performance" --- Agreement to sell immovable property
--- Plaintiff/respondent failed to take any action - Delay of 2 and ½ years
- Neither purchased stamp papers nor asked for executioin of sale deed - Substantial rise in price --- Sold to another, now appellant/defendant --- Whether any enquiry lies in favour of plaintiff ? --- No. Even where time is not the essence of contract, plaintiff must perform his part of contract within reasonable time."
19. Adverting back to the facts of the present case, admittedly as per plaintiff agreement to sell was executed on 10.05.82 and thereafter part payment was made on 16.12.85. It is also admitted by plaintiff in his cross Suit No.480/96 page 10 of page 14 examination that till the filing of the suit he did not give any notice in writing to defendant no.1 for performance on his part of contract. If, it was for the defendant no.1 to obtain NOC for execution of sale deed as pleaded by plaintiff, even then, what prevented the plaintiff for about 14 years to ask the defendant no.1 to obtain the same or to approach the court in failure to do so, is unexplained. Even, if time is not the essence of the contract, plaintiff must perform his part of contract within reasonable time. The court may infer that it is to be performed in reasonable time and determine whether its discretion to grant specific performance should be exercised. Reliance is placed upon an authority titled as Chand Rani Vs. Kamal Rani 1993 (1) SCC 519. No prudent man would remain silent after making part payment for about 14 years for initiating action against the other party for not obtaining NOC from authorities for execution of sale deed, which permission requires time at the most two months or so. In view of admission of plaintiff that he remained silent for about 14 years, after making part payment on the hope that defendant no.1 will obtain NOC for execution of sale deed, has no force and accordingly, it is held that suit of the plaintiff as filed for specific performance of contract dated 10.05.82 i.e.Ex.PW-1/1 is barred by limitation. Accordingly, this issue is answered against the plaintiff and in favour of defendants. Issue no.4.
20. Onus to prove this issues was upon the plaintiff. Defendants took the objections in the written statement that suit of the plaintiff is without any cause of action. As per plaintiff defendant no.1 executed agreement to sell the suit property vide agreement dated 10.05.82 Ex.PW-1/1 and received the earnest money and it was agreed that sale deed will be executed after obtaining NOC from the concerned authorities. Cause of action is a bundle of facts on the basis of which a party claims his Suit No.480/96 page 11 of page 14 legal rights or alleges violation thereof. When, in this context the plaint is perused, same itself shows cause of action to file the present suit. Accordingly, this issue is answered in favour of plaintiff and against the defendants.
Issue no.5.
21. Onus to prove this issue was upon the plaintiff. Defendants took the preliminary objections that suit property is not identifiable as the site plan as filed by plaintiff, plaint and agreement to sell, on which the plaintiff rely shows different directions/dimensions and as such suit property is not ascertainable. PW-1, in his cross examination confirmed that in the East side of plot in question, house of Lakhi is situated, in South, house of Raj Singh is situated, in North, there is a road and in west his house exist. Thus, as per admission of plaintiff in cross examination, road is situated only on the North side of the suit property and in other three sides there are houses of Raj Singh, Lakhi and plaintiff himself, however, the site pan Ex.PW-1/4 as filed by plaintiff shows roads on two side of the suit plot and in West direction house of the plaintiff and in East direction house of the Lakhi Ram. Thus, the site plan of the plaintiff Ex.Pw-1/4 is not according to the directions as deposed by him in his cross examination. DW-3 Sh.Ashok Kumar, Halka patwari, produced the Akshijra as Ex.DW-1/3 and deposed that Khasra No.262/1 i.e.suit plot is bounded as under:-
East 265/1 plot.
North Plot No.264
West Other plots.
South Gali.
22. The above testimony of DW-3 remained unrebutted and even a suggestion was not given to this witness. The boundary of the suit plot Suit No.480/96 page 12 of page 14 as shown in Akshijra Ex.DW-1/3 is not as per boundaries mentioned in site plan Ex.PW-1/4. As per Akshijra Ex.PW-1/3 in North side of suit plot there is plot no.264, while site plan of plaintiff Ex.PW-1/4 shows a road 25 feet wide in the North direction of the suit plot. Therefore, it is held that plaintiff has not shown the directions/dimensions of the suit property correctly in the site plan Ex.PW-1/4 and in absence of that, suit property is not correctly identifiable. Accordingly, this issue is answered against the plaintiff and in favour of defendants.
Issue no.6.
23. Onus to prove this issue was upon the parties. As per plaintiff plot no.262/1 Village Paprawat, measuring about 950 sq.yards was sold by defendant no.1 to plaintiff vide agreement Ex.PW-1/1. The plea of the defendants is that plot no.262/1 measuring 1 bigha 3 biswas is jointly owned and possessed by defendant no.1 and his three brothers namely Lakhmi Chand, Dharam Singh and Ramphal, which is situated in the extended Lal Dora Abadi, Village Paprawat, Delhi. Thus, it is the plea of the defendant no.1 that he was not the sole owner of suit plot measuring about 950 sq.yards, therefore alleged agreement to sell Ex.PW-1/1 cannot be legally enforcible. To a suggestion as put by ld.counsel for plaintiff PW-2 Sh.Ramphal confirmed that they all four brothers have constructed their own separate houses on the plot in question. A plea was taken by ld.counsel for plaintiff as put to DW-1 Gowardhan that defendant no.1 alongwith his three bothers divided the suit plot and the share of his brother in the plot in question was compensated by him by giving him another land, which fact is not proved on record. DW-3 Sh.Ashok Kumar, Halka Patwari deposed that Khasra No.262/1 i.e.suit property is in the name of Lakshmi Chand, Sh.Dharam Singh. Sh.Ramphal and Sh.Gowardhan, all sons of Sh.Roop Ram i.e.defendants and their two Suit No.480/96 page 13 of page 14 brothers. DW-3 further deposed that all these persons are having equal shares in the suit property as mentioned in the above khasra. This fact is also not disputed during cross examination. If the defendant no.1 was not absolute owner of the suit plot, then agreement Ex.PW-1/1 by which the plot i.e.950 sq.yards out of 1 bigha 3 biswas i.e.1150 sq.yards was sold by defendant no.1 is not legally enforcible as defendant no.1 cannot sell the share of his brothers in absence of any authority. Accordingly, this issue is answered against the plaintiff and in favour of defendants. Issue No.7.
24. In view of my findings on issue no.2 to 6, plaintiff is not entitled for the relief as claimed. Accordingly, this issue is answered against the plaintiff and in favour of defendants.
Relief.
25. In view of my findings on the aforesaid issues, suit of the plaintiff stands dismissed with no order as to costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open court ( S.K.MALHOTRA ) on 26.04.2012. SCJ/RC/(North)/DELHI Suit No.480/96 page 14 of page 14