Veena Kapoor vs Naresh Kumar on 20 November, 2018

[Cites 29, Cited by 0]

Delhi District Court

Veena Kapoor vs Naresh Kumar on 20 November, 2018

                                                                                                                         Veena Kapoor v. Naresh & Ors.


     IN THE COURT OF MAYANK MITTAL: CIVIL JUDGE08 (CENTRAL),
              ROOM NO.231, TIS HAZARI COURTS,  DELHI


                                   SUIT NO. : 95460/16 (OLD NO. : 139/16)

        In the matter of :

        Veena Kapoor
        W/o Sh. Subhash Chandra Kapoor,
        R/o WZ275C, BlockB, 
        Janta Colony, New Delhi.                                                                                                ...PLAINTIFF

                                                                    VERSUS

 1.

Naresh Kumar S/o Sh. Sahaj Ram, R/o House No.36, Village Binda Pur, New Delhi.

2. Parmanand S/o Late Sant Lal, R/o B - 49, Janak Puri, Uttam Nagar, New Delhi - 110 059.

3. Surinder Kataria S/o Sh. Ramji Lal, R/o T - 301, Prem Nagar, Uttam Nagar, New Delhi - 110 059.

4. Pramod Kumar S/o Late Jiwan Dass, R/o N - 1, Vijay Vihar, New Delhi - 110 059 ...DEFENDANTS Date of institution : 07.09.2005 CS No. : 95460/16 (old No. : 139/16) Pg 1 of 59 Veena Kapoor v. Naresh & Ors.

Date of judgment : 20.11.2018 SUIT FOR DECLARATION WITH CONSEQUENTIAL RELIEF FOR PERMANENT INJUNCTION J U D G M E N T

1. Vide this judgment, I shall dispose of the suit filed by the plaintiff for declaration with consequential relief for permanent injunction.

2. The facts necessary to dispose off the present suit as alleged by the plaintiff are that plaintiff is the absolute owner and in physical possession of the plot No.B - 1, 2 and 2A out of Khasra No.3521/1962 area measuring 550 sq. yards approximately (new No.WZ275c, Block - B) situated in the colony known as Janta Colony in the area of village Basai, Darapur, New Delhi. In the last week of October, 2004 the defendant met with the plaintiff and proposed her to sale a portion of the plot consisting of one shop and two room set for which the plaintiff become ready to sale the said portion of the plot and consequently specifically main road area measuring 75 sq. yards out of total land area measuring 550 sq. yards out of Khasra No.3521/1962 of premises No.WZ275C, BlockB, situated in Janta Colony in the area of village Basai Darapur, settled to be sold and the same was to be purchased by the defendants. The area sold out to the defendants is bounded as CS No. : 95460/16 (old No. : 139/16) Pg 2 of 59 Veena Kapoor v. Naresh & Ors.

under;


        North : Portion of Plot South                                                   South: Other's Property 

        East: Main Road                                                                 West: Other's Property

3. It is further submitted on behalf of the plaintiff that the portion of 75 Sq.

yards which has to be sold to the defendants is already in possession of her son namely Sh. Niti Raj Kapoor in which the son of the plaintiff Sh. Niti Raj Kapoor has been living with his family members and since the day of his marriage the said portion is in exclusive physical possession of the son of the plaintiff. However, the whole of the land of 550 sq. yards is in the name of the plaintiff and she is the exclusive owner and has exclusive, constructive possession of the said portion of the plot in question. The defendants are property dealers and are well known to the plaintiff since a long time and therefore the defendants put a condition before the plaintiff that the execution of the sale deed be made without consideration against the portion of the plot and the consideration thereof shall be paid after execution of the sale deed and at the time of payment of the consideration the physical possession of the plot be given to the defendant. Therefore, the plaintiff on 19.11.2004 appeared before the Sub Registrar - II, Janak Puri, New Delhi - 58 for registration of the sale deed in respect of the CS No. : 95460/16 (old No. : 139/16) Pg 3 of 59 Veena Kapoor v. Naresh & Ors.

portion of the plot in question without taking consideration thereof but after execution of the sale deed. The Sub Registrar - ll, Janak Puri has refused to register the sale deed due to lack of no objection certificate from the competent authority. Thereafter, the plaintiff along with the defendants came to her house and asked the defendants to pay the consideration of the portion of the plot in question but the defendants told her that they shall not pay the consideration against the portion of the plot in question since the said execution is not registered by the Sub RegistrarIl, Janak Puri, New Delhi - 58 and moreover the physical possession is with the plaintiff and her son and they will not demand the possession of the plot in question till the said sale deed is not registered for which the plaintiff did not become ready and requested from the defendants to pay the consideration of the portion of the plot in question or to accompany with her to get cancelled the said execution of the sale deed in respect of the portion of the said plot in question but the defendants neither paid the consideration against the portion of the plot in question nor accompany her to the office of the Sub Registrar - II, Janak Puri, New Delhi to get cancelled the execution of the sale deed. In the month of December, 2004 and in January, 2005 the plaintiff so many times requested personally by Visiting their office of CS No. : 95460/16 (old No. : 139/16) Pg 4 of 59 Veena Kapoor v. Naresh & Ors.

property dealing and by telephone that she is in need of consideration against the plot in question and they should pay the consideration of the portion of the plot in question but the defendants on the one pretext or the other did not make the payment against the portion of the plot in question. In the month of February, 2005 the plaintiff told the defendants that cost of the property in area has been rising too much speedily and they have not paid the consideration against the portion of the plot in question and they are not ready to pay the consideration, therefore, the execution of the plot in question be cancelled by appearing before the Sub Registrar - II, Janak Puri, New Delhi - 58 for which also the defendants did not become ready to accompany the plaintiff and to appear with her before the Sub Registrar, Delhi and refused clearly not to cancel the said execution of the sale deed even then the plaintiff has tried her best to pressurize the defendants to get cancelled the execution of the sale dead but no fruitful result has come out inspite of her request made to them for so many times till date. On 02.09.2005 at about 07:00 PM the defendants came to the house of the plaintiff along with two other persons and told her that they have got registered the sale deed of the portion of the plot in question and now are going to sale the said plot to third party and the plaintiff should hand over CS No. : 95460/16 (old No. : 139/16) Pg 5 of 59 Veena Kapoor v. Naresh & Ors.

the peaceful possession of the portion of the plot in question and thereafter they will pay the consideration thereof but the plaintiff told them clearly that the defendants have not paid any consideration of the plot in question at the time of execution of the sale deed therefore the defendants are not entitled to sale the said property in question to anybody and therefore they are not the owner of the said property. In the evening of 03.09.2005 at about 07.30 PM the defendants along with some anti social elements, their colleagues, associates, friends came to the premises of the plaintiff and threatened her to hand over peaceful possession of the portion of the plot in question otherwise the possession of the portion of the plot in question be vacated forcibly and without due process of law and moreover the plaintiff and her son will have to face dire consequences for the same. The plaintiff and her son are in actual and constructive physical possession of the portion of the plot in question and the defendants have no right to sale the said portion of the plot in question to any other party and also have no right to demand the possession of the portion of the plot in question from the plaintiff.

4. The defendants have contested the suit of the plaintiff and has filed their written statement. It is stated in the written statement that the suit of the plaintiff is false, frivolous and the same has been filed with a malafide CS No. : 95460/16 (old No. : 139/16) Pg 6 of 59 Veena Kapoor v. Naresh & Ors.

intention and with a view to harass the defendants and so that the defendants would be compelled to accept the illegal and unlawful demands of the plaintiff registering the sale deed of the property in question in favour of the plaintiff. The plaintiff has no locus standi whatsoever in respect of the property in question because she is neither the owner of the same nor has any right, title or interest in the same when the property in question had already been sold by her to the defendants vide registered sale deed dated 19.11.2004 for a sale consideration of Rs.5,00,000/ but in the sale deed the consideration has been shown as Rs.1,00,000/ and the receiving amount of consideration has not been shown or disclosed in the sale deed at the instance of the plaintiff. It is further submitted that at the time of registration of the sale deed on 19.11.2004, the actual physical possession of the property in question which is measuring 75 sq. Yds. was delivered to the defendants by the plaintiff and the plaintiff also entered into the agreement with the defendants regarding rest of the portion of the property in question measuring 475 sq. yds. bearing Municipal No.WZ275C, Block B, Janta Colony, New Delhi. The suit has not been properly valued for the purposes of payment of court fee and the jurisdiction. The plaintiff is liable to pay the court fee on the amount of Rs.5,00,000/ which is the sale CS No. : 95460/16 (old No. : 139/16) Pg 7 of 59 Veena Kapoor v. Naresh & Ors.

consideration of the sale deed. Hence, the plaintiff should be directed to pay the court fee of the said amount. It is worth mentioning here that the talks for selling and purchasing of property in question took place in the first week of September and in pursuance to that the defendants made a part payment of sale consideration of Rs.4,00,000/ out of the settled consideration of Rs.5,00,000/ to the plaintiff on 22.09.2004 and the remaining amount of Rs.1,00,000/ was paid at the time of registration of the sale deed dated 19.11.2004. It is submitted that the possession was handed over by the plaintiff to the defendants at the time of the execution of the sale deed and defendants put their lock on the plot measuring 75 sq. yds and it is also clearly mentioned in the sale deed. However, on 24.09.2005 when this Hon'ble Court appointed a Local Commissioner to visit the site between 04.30 PM to 07.30 PM and as per the directions of this Hon'ble Court when the defendants No. 2 and 3 reached the site at about 01.30 PM got shocked by seeing the broken locks which were broken by the plaintiff and her son. As such a complaint was also made in this regard to the Chowki Raghuvir Nagar, P.S. Rajouri Garden, New Delhi by the defendants No.2 and 3 on the same day. It is submitted that the defendants are the owner of the property since purchasing the property and CS No. : 95460/16 (old No. : 139/16) Pg 8 of 59 Veena Kapoor v. Naresh & Ors.

were enjoying the property upto 23.09.2005 and even upto the time when Local Commissioner was appointed by this Hon'ble Court and thereafter the plaintiff and her son illegally and unlawfully broken the lock and the defendants also reserves the right to recover the possession with due process of law. It is submitted that the plaintiff sold her plot measuring 75 sq. yds. to the defendants after receiving Rs.5,00,000/ as per the demands of the plaintiff. She received Rs.4,00,000/ on 22.09.2004, which were deposited by the plaintiff in her bank in presence of the defendants on 22.09.2004 and RS.1,00,000/ was received by the plaintiff before Sub Registrar, Delhi at the time of the execution of the sale deed on 19.11.2004 and the physical possession was also handed over to the defendants. It is further submitted that the plaintiff and the defendants were appeared before Sub Registrar - II, Janak Puri, Delhi.

5. Replication has not been filed on behalf of plaintiff.

6. From the pleadings of the parties, vide order dated 23.07.2007, following issues were framed for trial:

1. Whether the plaintiff is entitled to relief of declaration, as prayed for?

                                                   OPP

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                                                                                                                          Veena Kapoor v. Naresh & Ors.




                                                2. Whether   the   plaintiff   is   entitled   to
                                                   permanent injunction? OPP

                                                3. Whether the suit has not been properly
                                                   valued   for   the   purposes   of   court   fee
                                                   and jurisdiction? OPD

                                                4. Whether   plaintiff   has   concealed
                                                   material facts? OPD

                                                5. Relief.

7. In order to prove his case, plaintiff examined herself as PW1 who tendered her evidence by way of affidavit Ex.PW1/A. He relied upon the following documents:

1. Ex.PW1/1 (OSR) copy of sale deed of plot.

2. Ex.PW1/2 site plan.

3. Ex.PW1/3 sale deed dated 19.11.2004.

4. Ex.PW1/4 is deexhibited and was marked as MarkA copy of letter.

5. Ex.PW1/5 is deexhibited and was marked as MarkB copy of letter.

6. Ex.PW1/6 is deexhibited and was marked as MarkC postal receipt.

7. Ex.PW1/7 fee deposit receipt dated 15.11.2007 (objected on the ground of mode of proof).

8. Ex.PW1/8 copy of RTI application (objected on the ground of mode of CS No. : 95460/16 (old No. : 139/16) Pg 10 of 59 Veena Kapoor v. Naresh & Ors.

proof).

9. Ex.PW1/9 original receipt dated 22.02.2011 (objected on the ground of mode of proof).

10. Ex.PW1/10 reply dated 10.03.2011 (objected on the ground of mode of proof).

11. Ex.PW1/11 copy of application dated 14.01.2011 under RTI with the ADM (West), Rampura, Delhi (objected on the ground of mode of proof).

12. Ex.PW1/12 is deexhibited and was marked as MarkD photocopy of reply dated 14.03.2011 to the RTI application.

8. No witness was examined as PW2.

9. Plaintiff has also examined summoned witness PW3 Sh. Hari Dutt Kaushik, Kanoongo from LAC West, Old Rampura Middle School DC Office Complex, Rampura, Delhi. The receipt of RTI dated 15.11.2007 was not available in his file. He had a photocopy of reply to the RTI dated 14.12.2007 in his file and had compared the copy of the said reply to RTI placed in the court file with the copy in his record. Same was exhibited as Ex.PW3/1 (objected to mode of proof, the summoned witness had produced a photocopy and had compared the said exhibit with the photocopy).

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                                                                                                                          Veena Kapoor v. Naresh & Ors.

10. Plaintiff has also examined PW4 Sh. Jarnail Singh, who tendered his evidence by way of affidavit Ex.PW4/A. He had not relied on any documents.

11. Plaintiff has also examined summoned witness PW5 Sh. Ram Prasad, LDC, LAC Office, Rampura, Delhi - 35. He had brought the summoned record i.e. original of Ex.PW1/11 and reply dated 14.03.2011 which was issued by his office in the hand of ADM/PIO (West), Sh. Anil Banka, which was earlier marked as MarkD and was exhibited as Ex.PW5/1.

12. Sh. Deshbandhu Gosai, UDC and Sh. Imran UlHawSiddiqui, Local Commissioner both examined as PW6.

13. PW6 Sh. Deshbandhu Gosain, UDC, Office of Sub Registrar - II, Basai Darapur, Delhi had brought the summoned record i.e. the original letter dated 22.02.2011, which was already exhibited as Ex.PW1/8. He had also brought the original letter dated 10.03.2011, which was already exhibited as Ex.PW1/10.

14. PW6 Sh. Imran UlHaqSiddiqui, Local Commissioner, F - 79, Jawahar Park, Laxmi Nagar, Delhi - 110 092 was appointed as Local Commissioner in this case. The report dated 19.09.2005 was signed by him at point A. Same was Ex.PW6/1. His report was correct. Rough sheet dated CS No. : 95460/16 (old No. : 139/16) Pg 12 of 59 Veena Kapoor v. Naresh & Ors.

14.09.2005 was also signed by him at point B. Same was correct and was exhibited as Ex.PW6/2. 19 photographs taken on 14.09.2005 at the spot alongwith their negatives was Ex.PW6/3 (Colly.) (objected to being mode of proof).

15. In order to prove their case, defendants have examined Sh. Parmanand as DW1, who tendered his evidence by way of affidavit Ex.DW1/A. He relied on the document i.e. sale deed dated 19.11.2004. Certified copy of same was already exhibited as Ex.PW1/3 (objected to by the counsel for plaintiff as to the mode of proof). The date mentioned as 22.09.2014 in para No.3 and 5 of affidavit Ex.DW1/A be read as 22.09.2004.

16. Defendants have also examined summoned witness DW2 Ct. Poonam, 2916/West, PS Rajouri Garden, Delhi. He was a summoned witness in the present case to bring the record of complaint dated 14.09.2005. In this regard, he said that the record of complaints up to period 14.09.2015 has been destroyed vide its order No.98889/HAR(West) dated 14.07.2010. The copy of said order is Ex.DW2/1 and the request letter for destruction of old record of SHO PS Rajouri Garden is Ex.DW2/2.

17. Defendants have also examined summoned witness DW3 Sh. Hemant Kumar. He was a summoned witness in the present case and one of the CS No. : 95460/16 (old No. : 139/16) Pg 13 of 59 Veena Kapoor v. Naresh & Ors.

attesting witnesses of sale deed executed on 19.11.2004 between plaintiff and defendants. The same was already exhibited as Ex.PW1/3. Same bears his signatures at point D. Besides this, he also signed on the back of page No.2 of this sale deed, however, my signatures on the said page No.2 of certified copy available on the record are not legible. He also accompanied with the parties to the Sub Registrar office at the time of presentation of said sale deed. On asking by Sub Register with regard to receiving of consideration amount from the seller, the seller replied that he had received the entire consideration amount.

18. Defendants have also examined DW4 Sh. Parmod Kumar, who tendered his evidence by way of affidavit Ex.DW4/A. He had not relied on any document.

19. I have heard the arguments and perused the record. Issue wise findings as follow: ISSUE NO.1 Whether the plaintiff is entitled to relief of declaration, as prayed for? OPP

20. The burden of proving this issue was on the plaintiff. In order to discharge the burden of proving this issue, the plaintiff has examined herself as PW1.

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In her affidavit of examination in chief, PW1 has reiterated and reaffirmed all the contents of her plaint. In her cross examination, PW1 has stated that she had known the defendants prior to the execution of sale deed in dispute. PW1 volunteered that she was not very familiar with them and got to know defendants No.2 and 3 more after the year 2004. PW1 further volunteered that the defendants were known to her son namely Nitiraj Kapoor. PW1 has stated that she had known the defendants since about two years prior to the execution of sale deed in dispute. PW1 has stated that it might be that she had deposed in Hon'ble High Court of Delhi that she knew the defendants about 1015 days prior to transaction in dispute with them, however, she had actually known them for about two - three years prior to the execution of sale deed in dispute. PW1 has stated that the entire property was purchased by her husband some time prior to the year 1985 and it was transferred by him in her name in the year 1999. PW 1 has stated that she does not know whether an NOC from competent authority had been annexed at the time of presentation of document before the Sub Registrar (at the time when the property was transferred by her husband in her name). PW1 has admitted it to be correct that at that time (at the time when the property was transferred by her husband in her name) CS No. : 95460/16 (old No. : 139/16) Pg 15 of 59 Veena Kapoor v. Naresh & Ors.

there was no requirement of NOC for the purpose of registration for the transfer documents. PW1 had denied the suggestion that thereafter in the year 2004 there was no requirement of NOC. PW1 had denied the suggestion that when her husband purchased the property in question prior to the year 1985, the area was falling the residential colony. PW1 has stated that prior to her husband, it was her father namely, Sh. Kartar Singh Anand who was the owner of property in question. PW1 has admitted it to be correct that her father purchased the property in question from M/s. Mohan Colonizer. PW1 has denied the suggestion that at the time the sale deed was executed in her favour in the year 1999, the colony was regularized. PW1 has stated that she had come to know later on that the colony was regularized. PW1 had further stated that however, the portion where the suit property was situated was not regularized. PW1 has stated that she does not recollect the sources from which she had come to know that colony was not regularized in the year 1999. In an answer to a specific question, PW1 has stated that at the time of execution of sale deed in her favour by her husband there was no requirement of obtaining NOC. PW1 has stated she cannot admit or deny the suggestion that in the year 2004 when the impugned sale deed was executed in favour of defendant the CS No. : 95460/16 (old No. : 139/16) Pg 16 of 59 Veena Kapoor v. Naresh & Ors.

entire colony including the suit portion was regularized as she does not know. PW1 volunteered at that time, registration of documents was not possible. PW1 had admitted it to be correct that she had gone to the office of Sub Registrar for the purposes of registration of impugned sale deed. PW1 volunteered that registry was not permissible at the relevant time without NOC. PW1 further volunteered that she knew this fact because in the year 2001 she had executed transfer documents in favour of her son and at that time the Sub Registrar had stated that without NOC the registration of documents could not be done and she had to cancel the documents. PW1 had denied the suggestion that the sale consideration amount for the suit property was fixed at Rs.5,00,000/ between the parties to the suit. PW1 volunteered that transfer documents in favour of defendants was executed without consideration. PW1 denied the suggestion that on 22.09.2004, the defendant paid a sum of Rs.4,00,000/ towards part consideration amount. PW1 volunteered that in fact on 23.09.2004, Sh. Nitiraj Kapoor (her son) and she took the loan of Rs.4,75,000/ from the defendants. PW1 has further admitted it to be correct that on 22.09.2004 her son and she deposited a sum of Rs.4,00,000/ with Citi Finance Company. PW1 has volunteered that she CS No. : 95460/16 (old No. : 139/16) Pg 17 of 59 Veena Kapoor v. Naresh & Ors.

has obtained the amount of Rs.4,00,000/ from her relatives and defendants had no concern with the same. PW1 has stated that she does not think that she had stated in the written statement filed in case No.121/07 that defendant went along with me for the purpose of depositing the amount of Rs.4,00,000/ with the Citi Finance Company, however, if it is so mentioned in the said written statement then it may be due to some mistake. PW1 has denied the suggestion that a balance of Rs.1,00,000/ was paid to her by the defendant at the time of presentation of transfer documents for the purpose of registration before the Sub Registrar. PW1 has further denied the suggestion that the Sub Registrar asked her as to whether she was executing the transfer document of her free Will and she had answered in affirmative. PW1 volunteered that Sub Registrar immediately after looking at the document stated that they could not be registered without NOC so the question of his making queries regarding her free Will and payment of consideration amount does not arise. PW1 has admitted it to be correct that she did not take back her file containing the impugned sale deed from the office of Sub Registrar. PW1 volunteered that the Sub Registrar did not register the impugned sale deed in her presence. PW1 has stated that she had not sent any request in writing to the office of Sub Registrar seeking the CS No. : 95460/16 (old No. : 139/16) Pg 18 of 59 Veena Kapoor v. Naresh & Ors.

return of impugned sale deed. PW1 volunteered that she had orally requested the office of Sub Registrar for the return of original impugned sale deed. PW1 has stated in the answer to a specific question that Sub Registrar directed his official i.e. Reader to return the original documents and she had requested the defendants to accompany her for the purpose of release of documents but the defendant kept avoiding the matter on one pretext or other. PW1 has stated that she does not recollect whether she had filed any application in the office of Sub Registrar seeking cancellation of impugned sale deed. PW1 volunteered that she had filed RTI applications in Sub Registrar's office in 2007. Pw1 had stated that she does not recollect whether prior to year 2007 she had made any request in writing to authorities for the purpose of cancellation of impugned sale deed. After going through the court file, witness has stated that there is no such document on record. PW1 volunteered that there is a request letter to the Tehsildar in the year 2007. PW1 has stated that she had not requested for cancellation of registry in the request letter to the Tehsildar of the year 2007. In an answer to a question as to the content of reply of the Tehsildar regarding the aforesaid request letter, PW1 has stated that Tehsildar replied that the area in which suit property was situated was an agricultural CS No. : 95460/16 (old No. : 139/16) Pg 19 of 59 Veena Kapoor v. Naresh & Ors.

area and was already acquired and no sale deed in respect of such area could be registered. PW1 has stated that she does not know whether the possession of suit property from the year 1967 till date has ever been taken by the Government. PW1 volunteered however, in the Fard the property in question has been mentioned as Government land till date. PW1 has stated that she had not placed on record any Fard in relation to the property in question. PW1 volunteered that she had come to know about this fact (acquisition) only during the pendency of present suit. PW1 has stated that she is in possession of suit property since the year 1989. PW1 had volunteered though she had received several notices from Government, however, she continued to be in possession of the suit property. PW1 has stated that no agriculture activity has been done by her, however, prior to her coming into the possession of the suit property, agricultural activity had been carried out thereon i.e. there was a nursery existing there. PW1 had admitted it to be correct that in the year 2004, when the sale deed was executed between the parties to suit, suit property of 75 sq. yards was completely built up. PW1 volunteered that it was a kaccha construction. PW1 has stated that there was no agricultural activity being carried out in the suit property as well as in remaining portion of the property in the year CS No. : 95460/16 (old No. : 139/16) Pg 20 of 59 Veena Kapoor v. Naresh & Ors.

2004. PW1 has denied the suggestion that sale consideration of the suit property was fixed at Rs.5,00,000/ between the parties. PW1 has further denied the suggestion that at her instance the consideration was written as Rs.1,00,000/ in the sale deed to avoid the stamp duty. PW1 volunteered that the sale deed was presented only to see whether the sale deed can be registered without NOC or not. PW1 has stated that she does not exactly know how much money she had demanded from the defendant against the sale consideration. PW1 has stated that she had only asked for payment once and it was regarding the dues which was made out to be against the defendant which was refused by them. PW1 had denied the suggestion that she cannot say exactly the amount due as there was no pending dues left and the whole consideration has already been paid to her.

21. Sh. Jarnail Singh who is residing in neighbourhood of suit property has been examined as PW4. In his affidavit of examination in chief, PW4 has deposed about his acquaintance with plaintiff and her son for last 910 years, and about their continuous occupation of suit property. In his cross examination, PW4 has stated that he is residing about 1015 yards away from the suit property. PW4 has stated that he cannot say as to how much portion is built up in the property B275C. PW4 has stated that he is not CS No. : 95460/16 (old No. : 139/16) Pg 21 of 59 Veena Kapoor v. Naresh & Ors.

aware about the measurement of aforesaid property. PW4 volunteered that he visits the suit property every day. PW4 has stated that he cannot say whether 75 sq. yards was delivered by plaintiff to the defendant. PW4 has stated that he cannot say whether defendant has put their locks in the suit property immediately after taking the possession. PW4 volunteered that he walk pass the residence of suit property in question on a regular basis and he has seen Sh. Prem Ji son of plaintiff residing in the suit property.

22. Sh. ImranulHaq Siddiqui, Local Commissioner appointed in the case for verifying the possession of the suit property was examined as PW6. In his cross examination PW6 has stated that he had reached the site of inspection at about 04:45 PM. PW6 has admitted it to be correct that he had not supplied any prior notice to the defendants before his reaching at the site on the date of inspection. PW6 has admitted it to be correct that the Hon'ble Court had directed him to inspect the site between 04:30 PM to 07:00 PM. PW6 has volunteered that as the defendants were not present at their respective addresses so he has affixed the notice at their respective sites after taking photographs. PW6 has stated that he had not served defendants No.2 and 3 about his visit as he was not aware about their addresses. PW6 has stated that he had not prepared any separate CS No. : 95460/16 (old No. : 139/16) Pg 22 of 59 Veena Kapoor v. Naresh & Ors.

inventory with regard to any articles/belongings found in the suit property at the time of his inspection, however, same is mentioned in his report. PW6 has stated that he does not remember whether at that time when he had visited the spot on 14.09.2005, a table and four chairs of the defendant in one room and a charpai and bed in another room, were present there.

23. In order to rebut the case as well as evidence brought by the plaintiff, defendants have examined Sh. Parmanand, defendant no.2 as DW1. In his affidavit of examination in chief, DW1 has reiterated and reaffirmed all the contents of written statement. In his cross examination, DW1 has stated that the said sale deed was got registered on 19.11.2004. DW1 has stated that the date of registration is 19.11.2004 and not 16.08.2005 as mentioned on sale deed shown to him. DW1 has stated that Sub registrar had not passed any written order about the verification of the sale deed. DW1 had denied the suggestion that the sale deed was not registered on 19.11.2004 due to non availability of NOC. DW1 volunteered that the NOC was not required at the relevant time. DW1 has stated that it was not in his knowledge that at that time, any NOC was required for registration. DW1 has further stated that he had gone to the office of Revenue Department three days after 19.11.2004 to inquire about NOC. DW1 has denied the CS No. : 95460/16 (old No. : 139/16) Pg 23 of 59 Veena Kapoor v. Naresh & Ors.

suggestion that the sale deed was not registered on 19.11.2004 due to non availability of NOC and non payment of consideration amount. DW1 had denied the suggestion that it was to his knowledge and to the knowledge of other defendants that the property in question was under acquisition before execution of sale deed. DW1 had admitted it to be correct that he had got written the amount of Rs.1,00,000/ in sale deed. DW1 volunteered that it was so written at the instance of plaintiff, however, they have paid Rs.5,00,000/ towards total sale consideration to the plaintiff. DW1 had admitted it to be correct that on 16.08.2005 when the sale deed was signed by the Sub Registrar the plaintiff was not present there. DW1 had stated that he cannot say whether the son of plaintiff was present there on 16.08.2005. DW1 had denied the suggestion that since the sale deed was not registered on 19.11.2004 and for that reason, he was not handed over the possession of suit property by the plaintiff on 19.11.2004. DW1 volunteered that since they had made the payment of entire consideration and they had got the possession of suit property on 19.11.2004. DW1 had stated that possession letter was executed on that date i.e. 19.11.2004. DW1 again stated that it is mentioned in registry and no separate possession letter was executed. DW1 has stated that he along with Sh.

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Surender Kataria had gone to the suit property when the Local Commissioner visited the suit property. DW1 has stated that it was about 1.30 or 02.00 PM when they had gone there. DW1 has stated that he was not present in court when the Local Commissioner was appointed.

24. Sh. Hemant Kumar who was attesting witness to the sale deed Ex.PW1/3 was examined as DW3. In his examinationinchief, DW3 has mentioned the fact of attestation of Ex.PW1/3 and also the fact that he had accompanied the parties to Sub Registrar Office at the time of presentation of said sale deed. In his crossexamination, DW3 has stated that Ex.PW 1/3 was presented for registration before the Sub Registrar on 19.11.2004. DW3 has stated that he does not know whether the sale deed Ex.PW1/3 was registered by Sub Registrar on 19.11.2004. DW3 volunteered that said document was presented by him for registration on 19.11.2004. DW3 has stated that when he had drafted the sale deed, nobody from the parties was present. DW3 has stated that none of the parties gave him instructions about the terms of the sale deed. DW3 has stated again that the details about the payment were given by both the parties (seller and purchaser) at the time of drafting. DW3 had admitted it to be correct that no consideration was paid in his presence. DW3 had admitted it to be correct CS No. : 95460/16 (old No. : 139/16) Pg 25 of 59 Veena Kapoor v. Naresh & Ors.

that the sale deed Ex.PW1/3 was registered by Sub Registrar on 16.08.2005.

25. Sh. Parmod Kumar was examined as DW4. In his affidavit of examination inchief, DW4 has reiterated and reaffirmed the contents of written statement. In his crossexamination, DW4 has stated that he had gone to the office of Sub Registrar on 19.11.2004 for the purpose of execution of sale deed in question alongwith his three partners namely Sh. Parmanand Arora, Sh. Naresh Kumar, Sh. Surender Kataria and Sh. Vinay Kapoor with his son Sh. Niti Raj and Sh. Hemant Kumar, Document Writer. DW4 has stated that they had only presented the sale deed in question but he does not know whether the same was registered on 19.11.2004. DW4 has admitted it to be correct that on 16.08.2005, the plaintiff and her son was not present at the office of Sub Registrar when Sub Registrar had signed the sale deed in question. DW4 has stated that with respect to the property in question, no NOC was obtained from concerned Revenue Department by us. DW4 has further stated that before purchasing the property in question, no inquiry was made with the concerned Revenue Department if the property in question was acquired by government/was free hold etc. DW4 has stated that the sale consideration was paid by vendee to vendor in CS No. : 95460/16 (old No. : 139/16) Pg 26 of 59 Veena Kapoor v. Naresh & Ors.

cash. DW4 has stated that Rs.4 Lakh in cash was paid to the vendor on 22.09.2004 for which a receipt was taken. DW4 has stated that said receipt has not been filed on record. DW4 volunteered that after the finalization of sale, as per practice, the receipt was torn. DW4 has stated that no separate possession letter was executed between the parties. DW4 volunteered that the fact regarding possession is mentioned in the sale deed. DW4 has stated that none of the defendants was present in the court when the Local Commissioner was appointed.

26. I have considered the pleadings, perused the record and heard the arguments of counsels for respective parties in detail.

27. The present case was initially filed by the plaintiff for decree of declaration, thereby declaring the sale deed alleged to be executed by plaintiff in favour of defendant dated 19.11.2004 registered on 16.08.2005 as null and void and for permanent injunction, thereby restraining the defendants from creating any third party interest in the suit property on the ground that defendants have not paid the consideration for the execution of alleged sale deed and got the said sale deed registered illegally/unlawfully in collusion with the concerned Sub Registrar. During the course of crossexamination of PW1, it has come for the first time on 06.07.2015 that the suit property CS No. : 95460/16 (old No. : 139/16) Pg 27 of 59 Veena Kapoor v. Naresh & Ors.

has been acquired by the government under the Land Acquisition Act, 1894. Though, invalidity of sale deed on the ground of acquisition proceedings has not been pleaded in the pleadings by the plaintiff, as the fact of acquisition came before the court during crossexamination of PW1, during the arguments, plaintiff has predominantly based his arguments for the relief claimed in the suit on the ground of acquisition of the suit property by government number of decades earlier and has argued that as land had already been acquired by the government, the contract of sale between plaintiff and defendant was void ab initio.

28. The defendant in his written statement has earlier stated that suit property has been purchased by the defendants through a valid sale deed executed by plaintiff in favour of defendants on 19.11.2004 against the valid consideration of Rs.5 Lakh, however, as per the wishes of plaintiff herself, Rs.1 Lakh consideration amount was mentioned in the sale deed exhibited as Ex.PW1/3, and the said sale deed was presented for consideration before the concerned Sub Registrar on the same date on 19.11.2004, which was finally registered by the Registrar on 16.08.2005. It has been submitted by the defendants in their written statement that plaintiff has delivered actual, physical possession of suit property to the defendant on CS No. : 95460/16 (old No. : 139/16) Pg 28 of 59 Veena Kapoor v. Naresh & Ors.

19.11.2004. During the course of proceedings, Local Commissioner was appointed by the court for verification of possession. It is claimed by defendant that defendants were not intimated about the visit of Local Commissioner and just before the visit of Local Commissioner, the plaintiff has broken the lock of the suit premises put by the defendants and had obtained forcible possession of suit property when defendants were not present in the suit property. It is submitted by the defendants that as just before the visit of Local Commissioner, plaintiff had illegally obtained the possession of suit property, Local Commissioner has narrated in his report that plaintiff is in possession of suit property. The defendant has opposed the claim of the plaintiff on the ground that suit property was purchased against valid consideration of Rs.5 Lakh though as per the desires of plaintiff, consideration of Rs.1 Lakh is mentioned in the sale deed. Defendant has further opposed the claim of plaintiff regarding NOC on the ground that no NOC was required for the registration of sale deed as suit property has not been agricultural property and was regularized before execution of sale deed Ex.PW1/3. The defendant has vehemently opposed the challenge to the sale deed Ex.PW1/3 has been void ab initio on the ground that neither plaintiff has pleaded the fact of acquisition of suit CS No. : 95460/16 (old No. : 139/16) Pg 29 of 59 Veena Kapoor v. Naresh & Ors.

property in the plaint nor defendants have knowledge about the same even during the time of transaction or at any time afterwards till the time PW1 has stated the same in her crossexamination. Counsel for defendants has very vehemently stated that even no issues have been framed with respect to the alleged fact of acquisition nor parties have adduced any evidence regarding the alleged fact of acquisition of suit property. Counsel for defendant has argued that even if the fact of acquisition is considered, which otherwise should not be considered, the land involved in the present case is covered by Section 24 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and accordingly the sale deed Ex.PW1/3 can not be said to be null and void/void ab initio.

29. For the purposes of challenging the validity of the sale deed on the ground of its being void in the absence of any sale consideration being paid by purchaser to seller, it has been submitted by counsel for plaintiff that both plaintiff and defendants were very well known to each other and for this reason, it was decided between the parties that sale consideration for selling the suit property by the plaintiff to the defendant shall be paid by defendant to plaintiff after registration of the sale deed and as sale deed CS No. : 95460/16 (old No. : 139/16) Pg 30 of 59 Veena Kapoor v. Naresh & Ors.

has never been registered, no consideration was ever paid by defendant to the plaintiff. It is submitted by counsel for defendant that as per Section 25 of Indian Contract Act, 1872, in the absence of consideration, the sale deed executed by plaintiff in favour of defendant is void. This plea of the counsel for plaintiff, has been vehemently opposed by counsel for defendant substantially on two counts. Firstly, it is stated by counsel for defendant that for agreeing to the fact that sale consideration shall be paid by defendant to the plaintiff after registration of sale deed, there has to be very close and warm relation between the parties which should be at least similar to the blood relations if not more than that. Counsel for plaintiff is relied on the crossexamination of PW1, whereby PW1 has stated that "though she knew the defendants before registration of sale deed but she was not very much familiar..... She came to know much about defendants after 2004..... she knows defendants two years prior to the execution of sale deed...... may be I deposed before Hon'ble High Court of Delhi that I know defendants 1015 days prior to the transaction in dispute, actually I know the defendants 23 years prior to the execution of sale deed......".

30. The counsel for defendant has argued that plaintiff had known to the CS No. : 95460/16 (old No. : 139/16) Pg 31 of 59 Veena Kapoor v. Naresh & Ors.

defendant just for 1015 days, even if it is assumed that plaintiff was known to the defendants for 23 years, it does not appear to be reasonable to arrive at such an agreement by plaintiff with defendants whereby sale consideration was agreed to be paid by defendant to the plaintiff after the registration of sale deed specially when the son of plaintiff himself is involved in the business of property dealing and more importantly without mentioning that fact in the sale deed. Secondly, the counsel for defendant has argued that the claim of plaintiff that sale consideration was agreed to be paid after registration of sale deed was totally false as suit property was purchased for a sale consideration of Rs.5 Lakhs, out of which Rs.4 Lakhs were paid by defendant to the plaintiff about ten days prior to the 19.11.2004 and the remaining Rs.1 Lakh was paid by the defendants to the plaintiff on 19.11.2004. The counsel for defendant has referred to the cross examination of PW1, whereby PW1 has herself admitted that she herself and her son Sh. Niti Raj had deposited a sum of Rs.4 Lakh with City Finance Company on 22.09.2004. Counsel for defendant has further argued that even plaintiff/PW1 has not denied the taking of sum of Rs.4,75,000/ from the defendants, however, plaintiffs have given a different version to the said receiving of money by plaintiff from defendant by terming CS No. : 95460/16 (old No. : 139/16) Pg 32 of 59 Veena Kapoor v. Naresh & Ors.

it loan in the place of consideration for sale in question. The counsel for defendant has further relied on number of case laws for the purposes of arguing that even if whole sale consideration is not paid by purchaser to the seller and the sale documents registered as per rules, he does not make the sale invalid and the only remedy available with the seller is to sue for recovery of remaining sale consideration.

31. In case of Janak Dulari Devi & Anr. v. Kapil Deo Rai & Anr. 2011 Law Suit (SC) 439, the Supreme Court has stated that:

15."We hasten to add that the practice of ta Khubzul badlain (of title passing on exchange of equivalent) is prevalent only in Bihar. Normaly, the recitals in a sale deed about transfer of title, receipt of consideration and delivery of possession will be evidence of such acts and events; and on the execution and registration of the sale deed, the sale deed would be complete even if the sale price was not paid, and it will not be possible to cancel the sale deed unilaterally. The exception to this rule is stated in Kaliaperumal (Supra). The practice of 'ta Khubzul badlain' in Bihar recognizes that a duly executed sale deed will not operate as a transfer in preasenti but postpones the actual transfer of title, from the time of execution and registration of the deed, to the time of exchange of equivalents that is registration receipt and the sale consideration, if the intention of the parties was that title would pass only on payment of entire sale consideration. As a result, until and unless the duty executed and registered CS No. : 95460/16 (old No. : 139/16) Pg 33 of 59 Veena Kapoor v. Naresh & Ors.

sale deed comes to the possession of the purchaser, or until the right to receive the original sale deed is secured by the purchaser by obtaining the registration receipt, the deed of sale merely remains an agreement to be performed and will not be a completed sale. But in States where such a practice is not prevalent, possession of registration receipt by the vendor, may not, in the absence of other clear evidence, lead to an inference that consideration has not been paid or that title has not passed to the purchased as recited in the duly executed deed of conveyance".

32. Further, in case of Kaliaperumal v. Rajagopal & Anr. (2009) 4 SC, the Supreme Court has stated that:

17. "It is now well settled that payment of entire price is not a condition precedent for completion of the sale by passng of title, as Section 54 of the Transfer of Property Act, 1882 ("the Act, for short) defines "sale" as "a transfer of ownership in exchange for a price paid or promoted or part paid and part promised". If the intention of parties was that title should pass on execution and registration, title would pass to the purchaser even if the sale price or part thereof is not paid. In the event of nonpayment of price (or balance price as the case may be) thereafter, the remedy of vendor is only to sue for the balance price. He cannot avoid the sale. He is, however, entitled to a charge upon the property for the unpaid part of the sale price where the ownership of the property has passed to the buyer before payment of the entire price, under Section 55 (4) (b) of the Act".

33. In case of Om Prakash v. Laxmi Narayan & Ors. (2014) 1 SC Cases 618, it has CS No. : 95460/16 (old No. : 139/16) Pg 34 of 59 Veena Kapoor v. Naresh & Ors.

been observed by Hon'ble Apex Court that:

18. "To put the record straight, the correctness of the impugned judgment, Laxmi Narayan v. Om Prakash came up for consideration before a Division Bench of the High Court itself in Writ Petition No.6464 of 2008 (Mansingh v. Rameshwar) and the same has been overruled by the judgment dated 22.01.2010. The High Court observed as follows: (MPLJ p. 142, paras 89).

8. A document would be admissible on basis of the recitals made in the document and not on basis of the pleadings raised by the parties. In the matter of Laxminarayan, the Ld. Single Judge with due respect to his authority we do not think that he did not look into the legal position but it appears that he was simply swayed away by the argument that as the defendant was denying the delivery of possession, the endorsement/recital in the document lost all its effect and efficacy.

9. It would be trite to say that if in a document certain recitals are made then the court would decide the admissibility of the document on the strength of such recitals and not otherwise. In a given case, if there is an absolute unregistered sale deed and the parties say that the same is not required to be registered then we do not think that the court would be entitled to admit the document because simply the parties say so. The jurisdiction of the curt flows from Section 33, 35 and 38 of the Stamp Act and the court has to decide the question of admissibility. With all humility at out command we overrule the judgment in Laxminarayan". We respectfully agree with the conclusion of the High Court in this regard.

34. In case of Karan Madan & Ors. v. Nageshwar Pandey 209 (2014) DLT 241, CS No. : 95460/16 (old No. : 139/16) Pg 35 of 59 Veena Kapoor v. Naresh & Ors.

Hon'ble High Court of Delhi has observed that:

27. Section 92 of Evidence Act, inter alia, provides that where the terms of a grant or other disposition of property have been proved according to Section 91 and in this case the execution and registration of the instrument of sale is not disputed by the defendant, no evidence of any oral agreement, or statement shall be admitted, as between the parties to such instrument, for the purpose of contracting, varying, adding to or subtracting from its terms".

35. On the basis of abovesaid evidence, pleadings and arguments it appears that parties have agreed to sell and purchase the suit property for a sum of Rs.1 Lakh. In view of provision contained in Section 91 and 92 of Indian Evidence Act, it can not be said that the disputed sale transaction was entered into without agreeing the sale consideration and accordingly can not be said to be void on account of Section 25 of Indian Evidence Act, 1872. Plaintiff has clearly admitted the receiving of Rs.4,75,000/ during the relevant period of time, though, has tried to give it the form of loan. The plaintiff has neither proved the repayment of loan which as per her own averments was obtained by her from the defendants nor the plaintiff has examined any of her relatives from whom the plaintiff has taken the alleged loan of Rs.4,00,000/ which was admittedly deposited by the plaintiff with City Finance Co. From the facts and circumstances of this case, it can not CS No. : 95460/16 (old No. : 139/16) Pg 36 of 59 Veena Kapoor v. Naresh & Ors.

believe that no consideration was passed from defendant to the plaintiff. Even if, it is believed that part or whole of the consideration is still remained to be paid by defendant to the plaintiff, there exist a clear statement of law as explained by Hon'ble Apex Court (discussed above), it appears that once sale transaction is completed, it can not be challenged on the ground that sale transaction is void on account that consideration was not paid by the purchaser to the seller.

36. The another ground raised by counsel for plaintiff for challenging the validity of the impugned sale transaction is that it has been registered without following due procedure of law. The counsel for plaintiff has argued vehemently that when sale deed was presented for its registration before the concerned Sub Registrar, its registration has been refused by the Registrar immediately on having the look at the sale deed on the ground that no NOC has been obtained and in the absence of NOC, the sale deed can not be registered. The counsel for defendant has vehemently opposed the submissions of counsel for plaintiff on the ground that as suit property has been built up property and has not been used for agricultural purposes at any time after its purchased by the father of plaintiff from Mohan Coloniser, there was no requirement of taking NOC from the concerned CS No. : 95460/16 (old No. : 139/16) Pg 37 of 59 Veena Kapoor v. Naresh & Ors.

authorities for registration of sale deed with respect to the said land. Counsel for defendant has pointed out that PW1 has admitted in his cross examination that at the time in year 1999 when the plaintiff had purchased the suit property from her husband, there was no requirement of taking NOC from the concerned authorities. Counsel for defendant has argued vehemently when there was no requirement of NOC in the year 1999 for the purposes of registration of sale deed, it was for the plaintiff to bring on record and to prove any notification issued by competent authority to prove that there was requirement of NOC for registration of sale deed with respect to the sale transaction involving suit property. The counsel for defendant has pointed out that in case of refusal of registration by Sub Registrar, the Sub Registrar was duty bound as per Section 71 of Indian Registration Act to record the reasons for refusal of registration in writing, however, no such reasons have been registered by Sub Registrar, which shows that there was no such refusal to registration by Sub Registrar.

37. In this regard, it is pertinent to point out that plaintiff/PW1 has admitted that there was no requirement of seeking NOC from competent authority in the year 1999. PW1 has denied the suggestion that when sale deed was executed in her favour in year 1999, the colony was regularized. PW1 has CS No. : 95460/16 (old No. : 139/16) Pg 38 of 59 Veena Kapoor v. Naresh & Ors.

stated that she had come to know later on that the colony was regularized. PW1 volunteered that her portion was regularized at a later stage and she does not know the date when it was regularized. PW1 had further stated that she can not admit or deny when sale deed was executed in the year 2004, the entire colony including the suit portion was regularized as she does not know. PW1 has stated that registration was not permissible even in the year 2001 as she had executed a sale deed in favour of her son in the year 2001, however, without NOC, the Sub Registrar has refused to register and she had to cancel the sale deed executed by her in favour of her son.

38. The above discussion shows that plaintiff/PW1 had been totally inconsistent with respect to the requirement of NOC for the purposes of registration of sale deed with regard to the suit property and the knowledge of PW1 with respect to its necessity. It sounds logical that when NOC was not required in the year 1999, there would not have any requirement of NOC in the year 2004 as well. Even otherwise, even if obtaining the NOC was mandatory after the year 1999, it was for the plaintiff to prove that fact. However, nothing has been brought on record or proved on behalf of plaintiff for the purposes of proving that obtaining NOC was made CS No. : 95460/16 (old No. : 139/16) Pg 39 of 59 Veena Kapoor v. Naresh & Ors.

mandatory after the year 1999 for the purposes of registration of sale deed with regard to the suit property. Plaintiff has stated in her crossexamination that she had executed a sale deed in favour of her son in the year 2001, however, which was not registered as no NOC was obtained and plaintiff had to cancel that sale deed. However, no such sale deed nor the fact of its cancellation has been proved by the plaintiff by bringing on record and proving the sale deed executed by plaintiff in favour of her son and the deed by way of which it was cancelled. In fact, plaintiff has proved reply to an RTI which was exhibited as Ex.PW1/10, whereby plaintiff/PW1 was informed by Sub Registrar - II, Janakpuri, New Delhi that NOC is issued from LAC Branch in respect of sale/transfer of agricultural land. Admittedly, it has not been the case of plaintiff that land in dispute was a agricultural land. From it also, an inference can be drawn that no NOC was required for the purposes of registration of sale deed with regard to sale of land in dispute. The fact deposed by DW1 in his crossexamination and relied vehemently by the counsel for plaintiff that DW1 had gone to the office of Revenue Department three days after 19.11.2004 to inquire about the NOC does not give any inference that NOC was necessarily to be obtained for the purposes of registration of sale deed with regard to the land in dispute.

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Apart from it, in case registration of sale deed was refused by Sub Registrar on any ground whatsoever, it was the duty of Sub Registrar as per Section 71 of the Registration Act, 1908 to record its reason in writing for refusing registration. However, no such fact had been proved on behalf of plaintiff showing the reasons recorded by the Sub Registrar for not registering the sale deed. It has been stated by PW1 in his crossexamination that she had made oral request to the Sub Registrar to return the documents/sale deed to the plaintiff and Sub Registrar has directed his Reader to return the sale documents to the plaintiff, however, the said fact has not been proved by the plaintiff either by examining Sub Registrar or the Reader to whom Sub Registrar had directed to return the documents or by proving any noting made by the Sub Registrar on the file for returning the document of sale to the plaintiff. Even if, version of plaintiff is believed in this regard that Sub Registrar had directed his Reader to return the documents, it also appears to be unreasonable that despite clear direction, the Reader has not returned the documents to the plaintiff. Accordingly, plaintiff has not been able to prove any irregularity in the registration of the sale deed Ex.PW1/3.

39. The another ground raised by the plaintiff for challenging the alleged sale transaction between plaintiff and defendants was that suit property has CS No. : 95460/16 (old No. : 139/16) Pg 41 of 59 Veena Kapoor v. Naresh & Ors.

been acquired by the government and as per the provisions of Land Acquisition Act, 1894 as well as provisions of Delhi Lands (Restriction on Transfer) Act, 1972, there can not be any sale or purchase transaction with respect to the land in dispute as it has been already acquired by the government. Counsel for defendant has vehemently opposed this ground of attack taken by the counsel for plaintiff on the ground that this part of argument of counsel for plaintiff is beyond pleading. Counsel for defendant has argued that the fact of acquisition has not been averred by the plaintiff in its pleading and defendant was totally unaware about the fact of acquisition of land in question till 06.07.2015 when plaintiff/PW1 has deposed about the fact of acquisition during her crossexamination. The counsel for defendant has submitted that as defendant has not got an opportunity to defend fairly by filing proper written statement in this regard nor defendant could lead its evidence defending this fact as no issues have been framed with respect to the fact of acquisition, the plaintiff can not be allowed to argue or base his challenge to the sale deed in question on the basis of alleged fact of acquisition.

40. Counsel for plaintiff has relied on Meera Sahni v. Lt. Governor of Delhi & Ors.

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(2008) 9 SC Cases 177, whereby it has been held by Hon'ble Supreme Court that: "Transfer of land in respect of which acquisition proceedings had been initiated, is void and would not bind the Government"

.

41. Counsel for plaintiff has further relied on Kamla Bai & Anr. v. Arjan Singh & Ors. S.A. No.490 of 1984, whereby it has been held by Hon'ble High Court of Madhya Pradesh that:

28. Where a contract or transaction is illegal, there need be no pleading of the parties raising the issue of illegality and the court is bound to take judicial notice of it".

42. Counsel for plaintiff has further relied on Nutan Kumar v. IInd Additional District Judge, Banda (FB) by the Hon'ble High Court of Allahabad that:

7. Thus, every agreement made for or about any matter or thing which is either forbidden by any statute, or would defeat the provisions of any law, or the court regards it as opposed to public policy, is unlawful and ipso facto void.

9. Void agreements are destitute of all legal effects and force. They are totally ineffectual rather cipher. No legally enforceable relationship, right or liability emanates therefrom".

43. Per contra counsel for defendant has relied on Kalyan Singh Chouhan v.

C.P. Joshi, Civil Appeal No.870 of 2011, whereby it has been observed by CS No. : 95460/16 (old No. : 139/16) Pg 43 of 59 Veena Kapoor v. Naresh & Ors.

Hon'ble Apex Court that:

24. Therefore, in view of the above, it is evident that the party to the election petition must plead the material fact and substantiate its averment by adducing sufficient evidence. The court cannot travel beyond the pleadings and the issue cannot be framed unless there are pleadings to raise the controversy on a particular fact or law. It is, therefore, not permissible for the court to allow the party to lead evidence which is not in the line of the pleadings.

Even if the evidence is led that is just to be ignored as the same cannot be taken into consideration".

Counsel for defendant has further relied on Bachhaj Nahar v. Nilima Mandal & Ors. IX (2008) SLT 422, where it has been observed by Hon'ble Apex Court that "without pleading and issues, evidence can not be considered to make out new case which is not pleaded".

Counsel for defendant has further vehemently pleaded that even if the submissions made by the counsel for plaintiff be considered even then the sale transaction between plaintiff and defendant is not hit by the provisions of Land Acquisition Act, 1894 and provisions of Delhi Lands (Restriction on Transfer) Act, 1972 as the case of sale transaction in dispute is governed by the provisions of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Counsel for defendant has vehemently relied on the case of Govt. of CS No. : 95460/16 (old No. : 139/16) Pg 44 of 59 Veena Kapoor v. Naresh & Ors.

NCT of Delhi v. Manav Dharam Trust & Anr. Civil Appeal No.6112 of 2017, whereby considering and discussing all the diversent views held by different High Courts in country, the court has clarified the position with regard to the application of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as:

22. All the decisions cited by the Ld. Senior Counsel appearing for the appellants, no doubt, have categorically held that the subsequent purchasers do not have locus standi to challenge the acquisition proceedings. But in the present case, the challenge is not to the acquisition proceeding; it is only for a declaration that the acquisition proceedings have lapsed in view of the operation of Section 24 (2) of the 2013 Act, and therefore, the ratio in those cases has no application to these cases.

23. It is one thing to say that there is a challenge to the legality of propriety or validity of the acquisition proceedings and yet another thing to say that by virtue of operation of a subsequent legislation, the acquisition proceedings have lapsed.

24. In all the decisions cited by the Ld. Senior Counsel for the appellants, which we have referred to above, this court has protected the rights of the subsequent purchaser to claim compensation, being a person interested in the compensation, despite holding that they have no locus standi to challenge the acquisition proceedings.

25. The 2013 Act has made a sea change in the CS No. : 95460/16 (old No. : 139/16) Pg 45 of 59 Veena Kapoor v. Naresh & Ors.

approach on the acquisition of land and compensation thereof. The only lapse under the 1894 Act was under Section 11A where what would lapse is the ..."entire proceedings for the acquisition of land"

whereas under Section 24 (2) of the 2013 Act, wat gets lapsed in the land acquisition proceedings initiated under the 1894 Act which as culminated in passing of an award under Section 11 but where either possession was not taken or compensation was not paid within five years prior to 01.01.2014. In other words, the land acquisition proceedings contemplated under Section 24 (2) of the 2013 Act would take in both, payment of compensation and taking of possession within the five year period prior to 01.01.2014. If either of them is not satisfied, the entire land acquisition proceedings would lapse under the deeming provision. The impact of deemed lapse under Section 24 (2) is that pervasive. To quote R.F. Nariman, J. in Delhi Development Authority v. Sukhbir Singh & Ors. To quote: "...As is well settled, a deeming fiction is enacted so that a putative state of affairs must be imagined, the mind nor being allowed to boggle at the logical consequence of such putative state of affairs ... In fact, Section 24 (2) uses the expression "deemed to have lapsed" because the Legislature was cognisant of the fact that, in cases where compensation has not been paid, and physical possession handed over to the State/Vesting has taken place, after which land acquisition proceedings could be said to have been ended. ..." (Paragraph - 27).

Thus on account of the lapse, the encumbrance created in favour of the State comes to an end, and resultantly, the impediment to encumber the land also comes to an end. Even, according to the CS No. : 95460/16 (old No. : 139/16) Pg 46 of 59 Veena Kapoor v. Naresh & Ors.

appellants, the transfers were illegal and void for the reason that there was an impediment for the transfer. Once the acquisition proceedings lapse, all impediments cease to exist.

44. The counsel for plaintiff has relied on the decision of Indoor Development Authority v. Shailendra (Dead), Through LRs II (2018) SLT 146 for the purposes of proving the point that provisions of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 will not come to revive the debarred the staled claims under land acquisition process under Land Acquisition Act, 1894. It has been observed by Hon'ble Apex Court in this case as:

97. Thus, when we ponder as to the instant case, qua the reopening of state, claims under Section 24 of the 2013 Act, no 'Johnny come lately' can be permitted to assert that he is in possession (claiming that physical possession has not been taken away from him), when such assertion has not been made for decades together. Such claims would not be revived after the person has slept over them; the courts must not condone sudden wakefulness from such slumber, especially in relation to claims over open pieces of land, and even houses/structures, when the person may have illegally reentered into the possession or may have committed trespass. Thus, for the aforesaid reasons, such claims cannot be entertained or adjudicated under Section 24 of the2013 Act.

98. In our considered opinion Section 24 cannot be used to revive the dead or stale claims and the CS No. : 95460/16 (old No. : 139/16) Pg 47 of 59 Veena Kapoor v. Naresh & Ors.

matters, which have been contested up to this court or even in the High Court having lost the cases or where reference has been sought for enhancement of the compensation. Compensation obtained and still it is urged that physical possession has not been taken from them. Such claims cannot be entertained under the guise of Section 24 (2). We have come across the cases in which findings have been recorded that by which of drawing a Panchnama, possession has been taken, now again under Section 24 (2) it is asserted again that physical possession is still with them. Such claims cannot be entertained in view of the previous decisions in which such plea ought to have been raised and such decisions would operate as res judicata or constructive res judicata. As either the plea raised is negatived or such plea ought to have been raised or was not raised in the previous round of litigation. Section 24 of the Act of 2013 does not supersede or annul the Court's decision and the provisions cannot be misused to reassert such claims once over again. Once Panchnama has been drawn and by way of drawing the Panchnama physical possession has been taken, the case cannot be reopened under the guise of Section 24 of Act of 2013.

99. Section 24 is not intended to come to the aid of those who first deliberately refuse to accept the compensation, and then indulge in illadvised litigation, and often illmotivated dilatory tactics, for decades together. On the contrary, the section is contended to help those who have not been offered or paid the compensation despite it being the legal obligation of the acquiring body so to do, and/or who have been illegally deprived of their possession for five years or more; in both the scenarios, fault/cause not being attributable to the landowners/claimants".

45. From the aforesaid arguments and reliance on respective case laws, CS No. : 95460/16 (old No. : 139/16) Pg 48 of 59 Veena Kapoor v. Naresh & Ors.

counsel for defendant has been able to validly point out that as per Section 24 (2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, those acquisition proceedings where either the physical possession of land has not been obtained or compensation has not been paid five years prior to the passing of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, those acquisition proceedings shall lapse. The counsel for defendant has rightly argued that as in the present case, neither the physical possession of land in dispute has not been taken over by the government in pursuance of acquisition proceedings nor any compensation has been paid, the acquisition proceedings started with respect to the land in dispute has already been lapsed and when the acquisition proceedings with respect to land in dispute has already been lapsed, the agreement by way of which plaintiff and defendants have entered into sale transaction involving the suit property cannot be said to be void/illegal. Though, the counsel for plaintiff has pointed out that the Ho'ble Apex Court in case of Indoor Development Authority v. Shailendra (Dead), Through LRs II (2018) SLT 146 has held that the Right to Fair Compensation and Transparency in CS No. : 95460/16 (old No. : 139/16) Pg 49 of 59 Veena Kapoor v. Naresh & Ors.

Land Acquisition, Rehabilitation and Resettlement Act, 2013 is nowhere meant to revive the stale claims of the parties in pursuance of land acquisition proceedings initiated under Land Acquisition Act. However, counsel for plaintiff has not pointed out as to how the claim of land owners/subsequent purchaser became staled with respect to the acquisition proceedings initiated involving the acquisition of land in dispute in the present case. It has been argued on behalf of counsel for plaintiff that parties have already obtained the compensation in lieu of the land acquired, however, despite giving number of opportunities, no proof of obtaining the compensation amount has been filed by the plaintiff. Even if, it is believed, as argued on behalf of plaintiff that plaintiff has already received the compensation, there is no denial from the fact that the possession of land in disputed has not yet been taken by the government. Accordingly, as per Section 24 (2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as explained by Hon'ble Apex Court in case of Govt. of NCT of Delhi v. Manav Dharam Trust & Anr. Civil Appeal No.6112 of 2017, the acquisition proceedings has lapsed with respect to land in dispute as till five years before passing of Right to CS No. : 95460/16 (old No. : 139/16) Pg 50 of 59 Veena Kapoor v. Naresh & Ors.

Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the possession of land in dispute has not been taken by the government in pursuance of acquisition proceedings.

46. On the basis of above discussion, plaintiff has not been able to prove that there is any substance in any of the grounds taken by the plaintiff for seeking the relief of declaration of cancellation of sale deed executed by plaintiff in favour of defendant dated 19.11.2004 bearing Registration No.22783, Book No.1, Vol. No.13092, Pages 101 to 105, registered on 16.08.2005.

47. This issue is decided against the plaintiff.

ISSUE NO.2 Whether the plaintiff is entitled to permanent injunction? OPP

48. The burden of proving this issue was on the plaintiff. In order to discharge the burden of proving this fact, the plaintiff has examined herself as well as PW4 and PW6. The evidence of plaintiff/PW1/PW4 and PW6 have been discussed while deciding issue No.1. For the purposes of seeking the relief of permanent injunction and thereby restraining the defendants, their agents, servants and anyone claiming through defendants, the plaintiff was CS No. : 95460/16 (old No. : 139/16) Pg 51 of 59 Veena Kapoor v. Naresh & Ors.

first required to prove that at the date of filing of present suit, the plaintiff was in possession of suit property. Plaintiff has not filed any document to show her possession specifically on the date of filing of the present suit. Plaintiff has examined PW4 Sh. Jarnail Singh, who is allegedly the neighbour of the plaintiff and resides at the distance of 1015 yards from the suit property. In his affidavit of examinationinchief, PW4 has mentioned the suit property as B257C, Janta Colony, Shivaji Enclave, New Delhi, however, in his crossexamination, PW4 has insisted that address of property is B275 and not B275C. It is also pertinent to point out that PW4 has not filed any of his identity proof showing his place of residence and also that PW4 resides in neighbourhood of suit property. Though. PW4 has stated that PW4 visits the suit property on daily basis, however, PW4 has been unable to tell in his crossexamination as to how much portion of suit property is built up. PW4 has further shown his inability in telling the measurement of suit property. PW has further shown his inability in telling whether 75 sq. yards portion out of the aforesaid property was sold by plaintiff to defendant. PW4 has further shown his inability to tell whether possession of 75 sq. yards (suit property) was delivered by plaintiff to the defendants. PW4 has further shown his inability whether defendants had CS No. : 95460/16 (old No. : 139/16) Pg 52 of 59 Veena Kapoor v. Naresh & Ors.

put their locks in the suit property immediately after taking the possession. In view of the aforesaid discussion, PW4 called by the plaintiff to depose about the possession of suit property by the plaintiff, could not withstand the crossexamination and had shown his lack of knowledge about even broad things which a neighbour will be naturally and reasonably knowing regarding the property in neighbourhood. The plaintiff has further examined Sh. ImranulSiddiqui, as PW6, who was appointed by court on 14.09.2005 to visit the property and to verify the possession of the suit property. In his crossexamination, PW6 has admitted that he had not supplied any prior notice to the defendants before his reaching at the site on the day of inspection. PW6 has volunteered that defendants were not present at the respective addresses; so he affixed the notices at their respective sites after taking photographs. PW6 has stated that he had not served defendant No.2 and 3 about his visit as he had not aware about their addresses. PW6 has stated that he has not prepared any separate inventory with regard to the articles/belongings found in the suit property at the time of inspection, however, the same is mentioned in his report. PW6 has stated that he does not remember whether at the time he had visited the spot on 14.09.2005, a table and four chair of the defendant in one room and a CS No. : 95460/16 (old No. : 139/16) Pg 53 of 59 Veena Kapoor v. Naresh & Ors.

charpai and bed was their in another room. The perusal of cross examination of PW6 as well as report and photographs filed by Local Commissioner makes it clear that none of the defendants were present at the time of visit of Local Commissioner at the suit property. The court has specifically directed the Local Commissioner to notify defendant No.1 and 4 before proceeding further for the investigation so that they may also be present at the time of visit of Local Commissioner. However, the report of Local Commissioner reveals that Local Commissioner reached at the suit site at 04:45 PM and not finding defendant No.1 and 4 there he had proceeded to the addresses of defendant No.1 and 4 and not finding defendant No.1 and 4 at their premises, Local Commissioner has affixed the copy of notice at their respective premises and immediately thereafter and without waiting for sufficient time, Local Commissioner has proceeded to the suit site and inspected the suit property. Despite clear direction by the court, no prior notice has been given to defendant No.1 and 4. In his cross examination, Local Commissioner PW6 has stated that he had not served notice to defendant No.2 and 3 as he did not have their address, however, proceeding of the court dated 14.09.2005 reveals that Local Commissioner was provided with the copy of plaint and order by way of which Local CS No. : 95460/16 (old No. : 139/16) Pg 54 of 59 Veena Kapoor v. Naresh & Ors.

Commissioner was appointed, wherein the addresses of all the defendants would have been mentioned clearly. From the crossexamination of PW6, it also becomes clear that Local Commissioner has not made any inventory of the articles/belongings found in the suit property. It is also pertinent to point out that Local Commissioner has stated in his crossexamination that he does not remember whether at the time of visit a table and four chairs of the defendant was found in one room and a charpai and bed was found in another room.

49. From the perusal of evidence brought by the plaintiff, it becomes clear that PW4 could not depose to any minimal extent regarding the actual physical possession of plaintiff over the suit property at the time of filing of the present suit. Much reliance cannot be placed on the report of Local Commissioner as well as the crossexamination of Local Commissioner as firstly Local Commissioner has not served notices as per specific instructions of the court to the defendants and also as Local Commissioner has deposed about the possession of suit property only at the date of his visit to the suit property. For the purposes of deciding the issue of permanent injunction, the possession at the date of filing the suit is more relevant specially when the defendant has alleged the forcible CS No. : 95460/16 (old No. : 139/16) Pg 55 of 59 Veena Kapoor v. Naresh & Ors.

dispossession by the plaintiff just prior to the visit of Local Commissioner at the suit premises for the verification of possession. Nothing has been brought on record in the form of electricity bill, water bill or any other sort of proof or any reliable witness from locality which could have proved the possession of plaintiff at the date of filing of the present suit. As against it, the defendant has relied on the sale deed Ex.PW1/3 for the purposes of proving that at the date of execution of sale deed, the defendants were put in possession of the suit property by the plaintiff as the plaintiff has already received the complete consideration for selling the suit property to defendants. The counsel for defendant has also put reliance on Section 91 and 92 of the Indian Evidence Act for the purposes of arguing that the averments made by the plaintiff with respect to her possession are against Section 92 of Indian Evidence Act, 1872. It is further stated by counsel for defendant that once it is reduced in writing in the sale deed that defendant has been put in possession of the suit property, and the said sale deed has been registered, the conditions of Section 91 of Indian Evidence Act are satisfied and as per Section 92 of Indian Evidence Act, any averment to the contrary cannot be made orally.

50. On the basis of evidence brought by the parties and arguments advanced CS No. : 95460/16 (old No. : 139/16) Pg 56 of 59 Veena Kapoor v. Naresh & Ors.

by them as discussed above, it cannot be said that plaintiff has brought sufficient evidence so as to prove its possession over the suit property at the time of institution of the present suit. Though, at the same time, defendant has also not been able to show that defendants were in possession of suit property at the time of filing of present suit and till the time the defendants have been forcibly dispossessed by the plaintiff just before the visit of Local Commissioner to the suit property. The court is of view that the mere weakness in the case of defendant to bring essential evidence for the purposes of proving its possession at the time of filing of present suit and till the time they were allegedly illegally dispossessed, does not discharge the burden of plaintiff to prove at least up to the standard of preponderance of probabilities that plaintiff was in continuous possession of suit property at the time of filing of present suit. Section 102 of Indian Evidence Act is very clear that burden of proving in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Here in the present case also, for the purposes of deciding this issue, the burden of proving that plaintiff was in possession of suit property at the time of filing of present suit was on plaintiff which plaintiff has not discharged by leading sufficient evidence up the standard of CS No. : 95460/16 (old No. : 139/16) Pg 57 of 59 Veena Kapoor v. Naresh & Ors.

preponderance of probabilities. In view of these facts, as plaintiff has not been able to show and prove her possession over the suit property at the time of filing of present suit, plaintiff is not entitled to the relief of injunction. This issue is decided against the plaintiff.

ISSUE NO.4 Whether plaintiff has concealed material facts? OPD

51. The burden of proving this issue was on the defendant. In pursuance of discussion on issues No.1, it becomes clear that plaintiff has at least concealed the fact of receiving of Rs.4,75,000/ from the defendant. The plaintiff has also not clearly stated the period from which she knows the defendant. These facts were material facts for the purposes of decision of the present suit. Accordingly, plaintiff is guilty of concealing of these facts.

52. Issue is decided in favour of defendant.

ISSUE NO.3 Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD

53. The burden of proving this issue was on defendant. The court fees as well as jurisdiction has to be determined on the basis of averments made in the plaint. As per the averments made in the plaint, the sale deed was executed CS No. : 95460/16 (old No. : 139/16) Pg 58 of 59 Veena Kapoor v. Naresh & Ors.

by the plaintiff without payment of any consideration. Besides it, the sale deed Ex.PW1/3 of which cancellation has been sought, mentions the consideration as Rs.1 Lakh. If court fees is to be evaluated on the basis of averments made in the plaint as well as documents annexed with the plaint, court fees has to be valued at Rs.1 Lakh. The plaintiff has valued the relief of declaration for the purposes of court fees and jurisdiction at Rs.1 Lakh and relief of injunction has been valued for court fees and jurisdiction at Rs.130/. No defect is found in the valuation of suit property by the plaintiff for the purposes of court fees and jurisdiction. Issue is decided against the defendants.

RELIEF

54. In view of the discussion on the issues hereinabove, the suit of the plaintiff is hereby dismissed. Defendant is entitled to his cost. Decree sheet be prepared accordingly.

Digitally signed by MAYANK

                                                                                                               MAYANK                     MITTAL
        File be consigned to Record Room.                                                                      MITTAL                     Date:
                                                                                                                                          2018.11.22
                                                                                                                                          17:16:26 +0530

        Announced in the open court                                                                  (MAYANK MITTAL)
        on 20.11.2018                                                                   Civil Judge - 08 (Central)/Delhi




CS No. : 95460/16 (old No. : 139/16)                                                                                                       Pg 59 of 59

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Delhi District Court

Veena Kapoor vs Naresh Kumar on 20 November, 2018