Delhi District Court
Attar Singh Ors vs Ms United Online India P Ltd Ors on 5 July, 2024
Suit No.16301/16
IN THE COURT OF SH. DIVYANG THAKUR
ADDL. DISTRICT JUDGE:03:
SOUTH WEST DISTRICT: DWARKA COURTS:NEW DELHI
Civil Suit No. 16301/16
CNR No. DLSW01-001789-2016
In the matter of :
1. Sh. Attar Singh
S/o Sh. Chhotu
2. Sh. Mehtab
S/o Sh. Suraj Bhan
3. Sh. Rakesh
S/o Sh. Chander Bhan
4. Sh. Vikram Singh
5. Sh. Dharmvir
Both Sons of Late Sh. Arjun
6. Sh. Robin
7. Sh. Deepak
Both Sons of Sh. Jai Bhagwan
DIVYANG 8. Smt. Sunita
THAKUR W/o Late Sh. Jai Bhagwan
All R/o VPO Dichau Kalan,
New Delhi ........Plaintiffs
Versus
Digitally signed
by DIVYANG
THAKUR M/s United Online India Pvt. Ltd.
Date: having its Registered Office at :
2024.07.06 317, Competent House, F-14,
16:37:22
+0530
Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 1 of 38
Suit No.16301/16
Connaught Place,
New Delhi
Through its Authorised Representative
Sh. Yudhvir Singh
S/o Late Sh. Harbir Singh
R/o E-139, Saket,
New Delhi ......Defendant
Date of institution of the suit : 25.04.2016
Final Arguments Heard on : 08.05.2024
Date of Judgment : 05.07.2024
Decision : SUIT DISMISSED
SUIT FOR CANCELLATION OF SALE DEED-CUM-
PERMANENT INJUNCTION
JUDGMENT :
1. This is a suit for cancellation of sale deed dated 18.10.2012 vide registration no.11792 in Book No.1, Volume no.6752, pages no.167 to 172 and to grant permanent injunction restraining the defendant from transferring, alienating, creating third party interest and from interfering in the peaceful possession of plaintiffs in respect of the suit land bearing Khasra no.85/15, area measuring 02 Bighas 12 Biswas, situated in the revenue estate of Village Dichau Kalan, New Delhi. PLAINT
2. The brief facts as mentioned in the plaint are Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 2 of 38 Suit No.16301/16 reproduced herein as under:
(i) The plaintiffs are the co-owners in the parcels of land comprising in Khasra Nos.48/3/2(2-12), 85/17/1 (0-2), 17/2(5-
18), 12(4-16), 13(4-16), 14(4-16), 15(2-12), 18(4-16), 11/1(0-3), 11/2(2-2), 12(4-16), 13(4-16), total measuring 58 Bighas 11 Biswas, situated in the revenue estate of Village Dichau Kalan, New Delhi - 110043.
(ii) The plaintiffs have agreed to transfer the land measuring 01 Bigha 07 Biswas, out of Khasra no.85/15 situated in the revenue estate of Village Dichau Kalan, New Delhi - 110043 to the defendant by virtue of a Settlement - Cum - Compromise Deed executed between the plaintiffs and the defendant. The defendant asked the plaintiffs for registration of Sale Deed on 04.04.2012 and accordingly, the plaintiffs reached the office of Sub-Registrar, Kapashera, New Delhi on 04.04.2012 and the defendant obtained the signatures / thumb impressions of the plaintiffs on the Sale Deed and completed all the formalities as required by the defendant.
(iii) One of the co-owner namely Sh. Bhagwan has also executed the Sale Deed but now he has expired and his children have not joined the plaintiffs in filing the present suit. The LRs of Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 3 of 38 Suit No.16301/16 Sh. Bhagwan approached the Ld. Tehsildar for mutation in respect of remaining land comprising in Khasra No.85/15 and other land. After execution of sale deed, another executant of sale deed namely Sh. Arjun Singh also expired and after his death, plaintiffs no.5 and 6 approached the Halqa Patwari for obtaining the copy of Khatoni as the land recorded in the name of Sh. Arjun Singh was required to be mutated in favour of plaintiffs no.5 and 6 being LRs late Sh. Arjun Singh. The revenue authorities prepared a new khata khatoni and in this khatoni, one Khasra No.85/15 has been mentioned, even though this new Khatoni bears the Khata Khatoni no.162/161. The name of the plaintiffs has not been mentioned in the said Khata Khatoni No.162/161. It is also clear from the Khatoni that the revenue authorities has sanctioned the mutation in favour of the defendant in respect of the land bearing Khasra No.85/15 which was not the subject matter of the sale deed dated 04.04.2012 executed by the plaintiffs. The revenue authorities had deleted the name of plaintiffs as co-owners in the land bearing Khasra no.85/15 while sanctioning the mutation in favour of the defendant on the basis of the sale deed dated 04.04.2012 executed by the plaintiffs. The entire share of Sh. Bhagwan in the land bearing Khasra no.85/15 Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 4 of 38 Suit No.16301/16 has been mutated in favour of LR of Sh Bhagwan by the revenue authorities after his death.
(iv) The plaintiffs after having obtained the copy of the sale deed, came to know that the name of Sh. Bhagwan as well as photographs of Sh. Bhagwan have been deleted from the original sale deed and the sale deed has been registered on 18.10.2012, even though the sale deed has been executed on 04.04.2012. It was also observed that there is some cutting/alteration in the Sale Deed and the cutting/alteration has not been attested by the concerned competent persons / Sub-Registrar. The original sale deed which bears the signatures of the plaintiffs / executants when compared with the certified copy obtained by the plaintiff reveals that the alleged signatures of the executants are at a different place in the certified copy. The documents are required to be registered within four months from the date of the execution of the documents but in the instant case, the Sale Deed has been registered on 18.10.2012 and it is after more than four months and renders the sale deed as void document. The land to the extent of share of Sh. Bhagwan is not the subject matter of the sale deed in question even though Sh. Bhagwan was also the executant of the sale deed. The suit land bearing Khasra no.85/15 Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 5 of 38 Suit No.16301/16 and other land is a joint land of the plaintiffs and no partition had taken place among all the co-sharers. The sale deed is also in violation of Section 22 of Delhi Land Reforms Act which renders the sale deed as a void document and the defendant did not get the possession of the land which was the subject matter of the said sale deed as the delivery of the possession is not legally permissible in the eyes of law.
(v) The plaintiffs never parted with the possession of the suit land but are apprehending dispossession at the hands of the defendants as the defendants have visited the suit property several times for dispossessing the plaitniff and have extended threats for dispossessing the plaitniff from the suit land. The plaintiff have also come to know that defendants are negotiating with some local property dealers to transfer the suit land and if the defendant succeed in doing so or dispossessing the plaintiffs, it shall lead to multiplicity of proceedings between the parties. The sale deed cast a cloud over the rights of the plaintiffs in respect of the suit land and it was got registered by the defendant in collusion with the Sub-Registrar in violation of law and as such it is required to be cancelled. Hence this suit. Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 6 of 38 Suit No.16301/16 WRITTEN STATEMENT, REPLICATION, ADMISSION- DENIAL AND FRAMING OF ISSUES
3. The present suit was instituted on 25.04.2016. Summons for settlement of issues alongwith notice of the application u/o XXXXIX R 1 and 2 CPC were issued to the defendant which were duly served. On 12.07.2016, the defendant entered appearance through its counsel and filed Written Statement.
4. In its Written Statement, the defendant has averred that the defendant is a private limited company registered under the Indian Companies Act having its registered office at 261,Kohinoor Enclave, Westend Marg, Saidulajab, New Delhi. Sh. Kuldeep Sharma is the Authorised Representative of the company vide its resolution dated 16.5.2016. It is further averred that the suit of the plaintiff is liable to be rejected / dismissed under order VII rule 11 as no cause of action arose in favour of the plaintiff and against the defendants. It is further averred that the plaintiffs are having malafide and dishonest intention with a view to avoid the compromise deed dated 03.04.2012 as they are bound by the said terms and conditions of the compromise deed. It is further averred that plaintiffs have got the sale deed dated Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 7 of 38 Suit No.16301/16 18.10.2012 registered in favour of the defendant got the FIR no. 386/2010 and 388/2010 PS Najafgarh quashed before the Hon'ble High Court of Delhi as such here is no cause of action to file the present sale deed. It is further averred that the plaintiffs have not approached this court with clean hands as they have concealed the material facts. It is further averred that the suit of the plaintiffs is bared by time as the sale deed was registered on 18.1O.2012 and suit has been filed after more than three years of registration despite the fact that plaintiffs or their predecessors are the vendors in the said sale deed as such the suit of the plaintiff is liable to be dismissed on this ground alone. It is further averred that the relief sought by the plaintiff can only be granted by the revenue authority under the provisions of Delhi Land Reforms Act, Delhi Land Revenue Act and rules framed thereunder and as such, the jurisdiction of the civil court is ousted in view of the provisions of the aforesaid act. It is further averred that the bone of contention between the plaintiffs herein and the defendant had started when Sh. Tarachand s/o Rattan Singh, Sri Bhagwan and Sh. Rakesh both sons of late Sh.Chander Bhan represented themselves as the owners of half undivided share out of total land measuring 6 bighas 8 biswas comprised in Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 8 of 38 Suit No.16301/16 Kh.No. 24/5 situated in the revenue estate of village Dichaun Kalan, Delhi to the defendants herein, while they were not enjoying the status of ownership of the said land as on the date of sale of land to the defendants. It is also averred that the suit of the plaintiffs is also liable to be dismissed as further Sh. Mehtab and Sh. Jai Bhagwan both sons of late Sh.Suraj Bhan, Sh. Arjun and Sh.Attar Singh both sons of late Sh. Chottu represented themselves as owners of half undivided share of total land admeasuring 6 bighas 8 biswas comprised in Kh.No. 24/5 situated in the revenue estate of village Dichaun Kalan, Delhi and land measuring 11 bigha 8 biswas comprised in khasra no.23/ 1/1(2-17), 10/2(4-05), 11/1(2-15),24/7/1(1-11) situated in the revenue estate of village Dichaun Kalan, Delhi to the defendant herein. It is further averred that the price of the said land was fixed at Rs.56,50,000/- per acre for the sale of the abovementioned land to defendants and thereafter, sale deed was executed by Sh. Tarachand s/o Rattan Singh, Sri Bhagwan and Sh, Rakesh both sons of late Sh.Chander Bhan for the land measuring 3 bighas 4 biswas i.e half undivided share of the total land measuring 6 bigha 8 biswas comprised in Kh.no.24/5 situated in the revenue estate of village Dichaon Kalan in favour Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 9 of 38 Suit No.16301/16 of the defendants herein before the Sub-Registrar on 02.08.2006 registered vide document no. 10189, additional book no.I, Volume no.3031 on pages 20 to 33 registered in the office of Sub Registrar IX, Kapashera New Delhi. It is further averred that Sh. Mehtab, Sh Jai Bhagwan both sons of late Sh.Suraj Bhan, Sh. Arjun and Sh.Attar Singh both s/o late Sh. Chottu had executed two sale deeds in favour of defendants herein. One of land measuring 11 bigha 8 biswa comprised in khasra no.23/ 1/1(2-
17), 10/2(4-05), 11/1(2-15),24/7/1(1-11) and the other sale deed of land measuring 3 bighas 4 biswas i.e. half undivided share of the total land measuring 6 bigha 8 biswas comprised in kh.no.24/5 situated in the revenue estate of village Dichaun Kalan in favour of defendants herein before the Sub-Registrar on 2.8.2006 which were registered vide document no.1, volume no 3031 on pages 80 to 124, registered in the office of Sub Registrar IX Kapashera, New Delhi and another sale deed was also registered on 2.8.2006 which was registered as document no. 10191, in additional book no.1, volume no 3031 on pages 50 to 63 registered in the office of Sub Registrar IX, Kapashera, New Delhi. It is further averred that later on, it was found that Sh. Tarachand s/o Rattan Singh, Sri Bhagwan and Sh. Rakesh both Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 10 of 38 Suit No.16301/16 sons of late Sh. Chander Bhan, Sh. Mehtab, Sh Jai Bhagwan both sons of late Sh.Suraj bhan, Sh. Arjun and Sh.Attar Singh both s/o late Sh. Chottu who reperesented themselves to the defendant herein to be the owners of the aforesaid mentioned properties had lost all their rights in certain portion of the said property much prior to the execution of the above said sale deeds because some of the portion of the said land equivalent to 1 bigha and 7 biswa was acquired by the government. That out of the total properties sold to the defendant, the abovenamed persons had no ownership rights or title or any interest in respect of the land measuring 1 bigha 7 biswas out of khasra no.24/5 Village Dichau Kalan as on the date of execution of the sale deeds. It is further averred that the defendant herein received the abovesaid information through RTI that the notice under section 4 of the Land Acquisition Act was issued on 24.9.2003 upon the abovenamed persons and notice under section 6 of the Land Acquisition Act was also issued on 16.2.2004 upon the abovenamed persons. It is further averred that after serving the notice the authority/LAC has passed the award on 16.1.2006 vide award no.10/2005-06. It is further averred that it was further revealed from the reply obtained under the RTI that the possession of land admeasuring 1 bigha 7 biswa Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 11 of 38 Suit No.16301/16 out of Khasra no.24/5 was taken over by the government on 6.4.2004 as per record and that further the above named persons had also received the compensation of the acquired land measuring 1 bigha 7 biswa out of Khasra no.24/5 on 16.9.2004, 16.10.2006, 29.9.2004 and 7.11.2006. It is also averred that after acquiring the land by the government, land in question has been given bifurcation numbers due to acquisition of part of khasra number. It is further averred that the defendant herein was not aware about the said fraudulent act done by the above named persons who have sold part of their acquired land of which they had already received the compensation from the government which came to the knowledge of defendant herein the month of August 2009, much after the sale of land to the defendant in 2006. It is further averred that thereafter the defendant was constrained to file a criminal Complaint under section 156(3) CrPC to register an FIR against the above named persons wherein Ld. MM was pleased to direct the police officer to register an FIR against above named persons and on said directions an FIR no.386/2010 dated 26.8.2010 was registered against Sh. Tarachand s/o Rattan Singh, Sri Bhagwan and Sh. Rakesh both sons of late Sh.Chander Bhan and FIR.No 388/2010 Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 12 of 38 Suit No.16301/16 dated 27.8.2010 was registered against Sh. Mehtab, Sh Jai bhagwan both sons of late Sh.Suraj Bhan, Sh. Arjun and Sh.Attar Singh both s/o late sh. Chottu. It is also averred that defendant had also filed a civil suit for Specific Performance vide CS. No 32/2011 dated 01.8.2011 against all seven above named persons praying to pass a decree of Specific Performance against the above named persons to execute a sale deed in favour of defendant herein by transferring equivalent land measuring 1 bigha 7 biswas which was acquired by the Land Acquisition proceedings out of the properties owned by the above named persons. It is further averred that during the pendency of the above-mentioned litigation the plaintiff herein, Sh Mehtab, Sh Jai Bhagwan both s/o Sh.Suraj Bhan, Sh.Sri Bhagwan, Sh. Rakesh Kumar both sons of late Sh. Chander Bhan, Sh.Arjun and Attar Singh both sons of Sh.Chottu had arrived at an amicable settlement/Compromise deed which was duly exhibited before the court of Ms.Mamta Tayal, ADJ, Dwarka Court as EX.C1 on 04.4.2012. It is further averred that a joint application under order 23 Rule 3 CPC was moved on behalf of both the parties and the suit was disposed off as per Compromise Deed dated 03.04.2012. It is also averred that thereafter on acting upon the Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 13 of 38 Suit No.16301/16 compromise deed dated 03.04.2012, defendants herein approached to the above named persons to execute the sale deed as mentioned in the compromise deed and the above named persons have agreed to transfer land admeasuring 1 bigha 7 biswas out of Kh.no 85//15 situated within the revenue estate of village Dichaun Kalan, New Delhi. It is further averred that both the parties have presented the sale deed wherein the vendors agreed to transfer thc abovesaid land in favour of the defendant herein on the sale consideration amount which they have already received in the year 2006 and after the presentation of the sale deed the plaintiffs herein applied for the NOC before the concerned tehsildar and the sale deed was kept pending for the want of NOC. It is further averred that the plaintiffs were duty bound to get the NOC as per rules and only after obtaining the NOC, the sale deed could have been registered but during this period Shri Bhagwan expired and the plaintiffs herein were not able to get the NOC of the total land i.e 1 bhigha 7 biswas. It is further averred that NOC bearing number 8337 dated 16.10.2012 was filed by both the parties but the said NOC comprised of land admeasuring 1 bhigha 3 biswa and 10 biswansi instead of 1 bhigha 7 biswa. It is further averred that thereafter both the Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 14 of 38 Suit No.16301/16 plaintiffs and the defendant reached the Sub Registrar office on 18.10.2012 and both the parties signed on each and every page where there were corrections in the sale deed and thereafter the present sale deed was registered on 18.10.2012. It is further averred that after the registration of the sale deed in question both the plaintiffs and the defendants mutually herein approached the Hon'ble High Court of Delhi where FIR No. 386/2010 and FIR No. 388/2010 both registered at PS Najafgarh were quashed by the Hon'ble High Court.
5. On 11.01.2017, replication has been filed by ld.counsel for the plaintiff wherein he has reiterated all the averments made in the plaint.
6. On 05.04.2017, at request of both the parties, the matter was sent to Mediation Centre, Dwarka Courts for settlement but the same could not be settled.
7. On 14.07.2017, on the basis of pleadings, the following issues were framed :
(I) Whether the suit is barred by limitation as the Sale Deed was registered on 18.10.2012 and the suit has been filed after more than three years?
OPP.
Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 15 of 38 Suit No.16301/16 (II) Whether this court do not have jurisdiction to try the present suit? OPD.
(III) Whether suit of the plaintiff is barred under Order VII R 11 CPC of having no cause of action to file the same? OPD.
(IV) Whether the plaintiff is entitled to cancellation of the sale deed as prayed for? OPP. (V) Whether plaintiff is entitled to a relief of permanent injunction as prayed for? OPP.
(VI) Relief.
8. Issue no.1 was treated as a preliminary issue and was taken up for arguments before the determination of remaining issues. On 07.06.2018, it was observed that the present suit can not be decided on the basis of preliminary issue and the court is required to record its findings upon all issues as required under Order XIV R 2 CPC. Thereafter, the matter was fixed for plaintiff's evidence.
PLAINTIFF'S EVIDENCE
9. On 23.05.2019, PW Sh. Mehtab tendered his evidence by way of affidavit as Ex.PW-1/1 and relied upon the following documents :
Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 16 of 38 Suit No.16301/16
(i) Copy of khatoni as Mark A
(ii) Copy of compromise deed dated 03.04.2012 as Mark B
(iii) Copy of sale deed dated 04.04.2012 as Mark C
(iv) Copy of khatoni for year 2012-13 as Mark D
(v) Copy of certified copy of sale deed dated 04.04.2012executed by Sh. Mehtab, Sh. Jai Bhagwan (sons of Suraj Bhan), Sh. Rakesh Kumar S/o Sh. Chander Bhan, Sh.Arjun and Sh. Attar Singh (sons of Sh. Chhotu) which is Mark E.
10. On 15.10.2019, he was cross examined by ld. counsel for defendant. In his cross examination, he admitted that the land in question has been acquired by the government prior to the execution of sale deed dated 02.08.2006. He further deposed that he did not remember whether he and his co-sharers have received the compensation of the aforesaid acquired land. He further admitted that he and his co-sharers have entered into a compromise with defendant in a suit for specific performance filed by the defendants. He further deposed that he had received the entire consideration amount to the extent of his share which he had sold to the defendant.
11. On 24.07.2023, PW Sh. Dharamvir S/o Late Sh. Arjun was examined as PW-2. He tendered her evidence by way Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 17 of 38 Suit No.16301/16 of affidavit Ex.PW-2/A and relied upon the documents of PW-1 already Mark A to Mark E. In his cross examination, he admitted that his father had executed and registered a sale deed in the year 2012. He also admitted that his father had told him that certain land had been acquired by the Government. He also admitted that his father alongwith other co-owners of the land had compromised to execute and register a sale deed before the Sub- Registrar in respect of the suit land.
12. On 18.10.2022, PW Sh. Bijender Singh Patwari was examined as PW-3. He proved internet generated Khatauni no.162/161 of the year 2012-13 which is Ex.PW-3/1. The updated Khatauni is Ex.PW-3/2. In his cross examination, he deposed that Ex.PW-3/1 has not been signed by any revenue officials. He further deposed that Ex.PW-3/2 is an updated document and that the record has been corrected on 16.02.2016 by the Tehsildar.
13. On 16.05.2023, PW Ms. Monika, Sr. Asstt., Sub- Registrar office, Kapashera was examined as PW-4. She proved sale deed executed on 04.04.2012 registered on 18.10.2012. Same is Ex.PW-4/A. The rectification of sale deed was executed on the same date and registered on 18.10.2012, copy of which is Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 18 of 38 Suit No.16301/16 Ex.Pw-4/B. In her cross examination, she deposed that she did not have any personal knowledge of the present case.
14. Thereafter, on 24.07.2023, vide separate statement of plaintiff no.5, PE was closed on behalf of all the defendants. DEFENDANT' S EVIDENCE
15. On 05.12.2023, Sh. Kuldeep Sharma was examined as DW-1. He tendered her evidence by way of affidavit Ex.DW- 1/1. He relied upon the following documents:
(i) Board Resolution is Ex.DW-1/A (ii) Joint application u/o XXIII R 3 CPC alongwith affidavits is Ex.DW-1/B (Colly)
(iii) Certified copy of Khatauni is Ex.DW-1/C.
16. In his cross examination, he has deposed that the plaintiff has concealed the fact that the land was acquired before the sale deed dated 02.08.2006 was executed in favour of the defendant company. He further admitted that a settlement was arrived between the Plaintiff and the defendant vide compromise deed Mark B vide which the Plaintiff had to transfer 1 Bigha and 7 Biswas of land in favour of the defendant. He further admitted that plaintiff had never denied transferring the aforesaid area of land. He also admitted that plaintiff had visited the Sub-Registrar Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 19 of 38 Suit No.16301/16 on 04.04.2012 and on the same day, Defendant had obtained signatures of all the parties on the said sale deed. He further deposed that Sh. Bhagwan was present on 04.04.2012 and he had also signed the sale deed and pasted the photograph. He also admitted that the said sale deed was presented before the Sub- Registrar on the same day and that the area mentioned in the aforesaid sale deed Mark C was 1 Bigha and 7 Biswas only. He also admitted that all the parties were again asked to be present before the office of the Sub-Registrar. He further deposed that on 04.04.2012, as the NOC was not available, the sale deed was presented before the Sub-Registrar but not registered. He further deposed that the document was again presented on 18.10.2012 and was registered after the issuance of the NOC. He also deposed that parties had again signed on the sale deed on 18.10.2012. He further deposed that there was no signature made on 18.10.2012 but separate rectification deed was executed which was signed on 18.10.2012. He again deposed that the rectification was made in the sale deed itself. It is admitted that in the said Khatauni, defendant company had mutated total land of 1 Bigha 3 Biswa 10 Biswansi in his favour and that the share of the defendant company in the said Khatauni had shown as 5/8 in Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 20 of 38 Suit No.16301/16 respect of the land bearing Kh. No.85/15 measuring 2 Bighas 12 Biswas.
17. Thereafter, as no list of witnesses was filed, hence DE was closed and the matter was fixed for final arguments. On 08.05.2024, final arguments were heard and the matter was fixed for judgment.
CONTENTIONS OF THE PARTIES
18. Ld.counsel for the plaintiff has submitted that firstly, the document has not been validly registered as per Section 23 of the Registration Act, 1908 as the same was executed on 04.04.2012 but registered on 18.10.2012. His second submission is that there are additions and alterations in the sale deed which were introduced into the registered sale deed by the defendant after the signing and execution of the sale deed. He has therefore, submitted that the sale deed is liable to be canceled on the aforesaid grounds. He has submitted that the revenue authorities have wrongly excluded the name of the plaintiffs from the Khata Khatauni and therefore, serious injury shall be caused to the plaintiffs if the registered sale deed Ex.PW-4/A is not canceled by this court.
19. Per contra, ld. Counsel for the defendant, who also Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 21 of 38 Suit No.16301/16 filed written submissions, has rebutted the contentions of the ld. Counsel for the plaintiff and submitted that the plaintiffs have admitted to the execution of the sale deed and the same is neither void nor voidable as against them. He submits that in fact, an FIR was registered against the plaintiffs for cheating and fraud which was subsequently compromised and the present sale deed is in compliance of the compromise decree which was passed by the court and subsequently, on basis of the said compromise, the FIR was also quashed on basis of the mutual settlement. He submits that it is only after the quashing that the plaintiffs have concocted the present false suit in order to harass and cheat the defendant. He submits that Section 23 of the Registration Act would have no application as the four months' period begins from the time of execution and presentation. He submits that the sale deed in question was executed and presented on the same day. He submits that it is open for the Registrar to take more than four months to register a sale deed which has been presented. He has also submitted that as the execution of the sale deed is admitted and there are no facts alleging fraud, undue influence, coercion etc., therefore the sale deed is neither void nor voidable and cannot be canceled by this court while exercising its discretion Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 22 of 38 Suit No.16301/16 under Section 31 of the Specific Relief Act, 1963. ISSUEWISE FINDINGS ISSUE NO.1.
(I) Whether the suit is barred by limitation as the Sale Deed was registered on 18.10.2012 and the suit has been filed after more than three years? OPP.
20. The applicable Article of the Schedule of the Limitation Act, 1963 would be Article 59. The same is extracted herein below :
Description of the suit Period of Limitation Time from which period begins to run
59. To cancel or set Three Years When the facts entitling aside an instrument or the plaintiff to have the decree or for the instrument or decree rescission of a canceled or set aside or contract. the contract rescinded first become known to him.
In Jamila Begum v. Shami Mohd., (2019) 2 SCC 727 : (2019) 2 SCC (Civ) 63 : 2018 SCC OnLine SC 2813, it was observed by the Hon'ble Supreme Court that :
"36. As discussed, the suit was filed for declaration that the mortgage deed dated 21-11- 1967 as well as sale deed dated 21-12-1970 Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 23 of 38 Suit No.16301/16 executed by Wali Mohd. were not executed by him out of his free will and are void. In Para (14) of the plaint, it is averred that the cause of action of the suit arose on 21-11-1967 and 21-12-1970. Under Articles 58 and 59 of the Schedule to the Limitation Act, 1963 in a suit filed for any declaration is to be filed within three years when the right to sue accrues. Under Article 59 of the Limitation Act, suit filed to cancel or set aside the instrument or decree, the suit has to be filed within three years from the date when the facts entitling the plaintiff to set aside or cancel the instrument or decree became first known to him. Plaintiff Shami Mohd. has admitted in his evidence that he got knowledge about the execution of the sale deed dated 21-12-1970 on the third day of death of his father on 17-5-1971. The suit must have been filed within three years of the date of knowledge or the date of the sale deed but the suit was filed on 12-7- 1978. In the case in hand, the suit filed challenging the validity of the mortgage deed dated 21-11- Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 24 of 38 Suit No.16301/16 1967 and sale deed dated 21-12-1970 is beyond the period of limitation of three years as prescribed under Articles 58 and 59 of the Schedule to the Limitation Act and barred by limitation."
21. It is the claim of the plaintiff that it was only on 08.12.2015 when they obtained the certified copy of the sale deed that they came to know that there were additions and alterations and that the name of Sh. Bhagwan, who had expired after the execution on 04.04.2012 and before registration on 18.10.2012, being cut from the sale deed. On this basis, it is claimed that the suit is maintainable.
22. It is the admitted fact that the sale deed was registered on 18.10.2012 and the said fact has not been contested by any of the parties. It is also the admitted fact that the plaintiffs herein had executed the present sale deed on 04.04.2012. It is now to be seen as to from what date the plaintiffs came to know or can be said to be deemed to have known about the facts on basis of which they seek cancellation. Section 3 of the Transfer of Property Act explains the phrase 'a person is said to have notice' as when he actually knows that fact or when but for willful abstention from an enquiry or search which he ought to Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 25 of 38 Suit No.16301/16 have made, or gross negligence, he would have known it. Once the document has been registered by the Sub-Registrar, the plaintiffs would be deemed to have complete knowledge of the contents of the said sale deed from the date of registration itself. It is pertinent to note that it is the specific case of the defendant that the said sale deed Ex.PW-4/A was the result of a compromise which arose from an FIR no.386/2010 u/s 420/468/471/120-B IPC and FIR no.388/2010 u/s 420/468/471/120-B IPC P.S. Najafgarh which was registered against the plaintiffs and that as a result of the compromise, a party had agreed to get quashed the aforesaid FIRs. This fact is also borne out from perusal of the certified copy of the compromise deed placed on record by the parties and exhibited as Ex.DW-1/B. The defendants have also submitted that subsequent of the registration of the sale deed, the FIR was got quashed before the Hon'ble High Court of Delhi. The plaintiffs have subtly glossed over this fact during the entire proceedings. It is unlikely that when the FIR was got quashed, the present plaintiffs were unaware about the registration of the sale deed. Though the plaintiffs in their replication state that they were not aware about the factum of registration when the FIR was Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 26 of 38 Suit No.16301/16 quashed, I find such submission to be contrary to the facts on record and common sense. In fact, it is pertinent to note that the plaintiffs never disclosed about the registration of FIR and the subsequent quashing on the basis of the compromise in their plaint.
23. Therefore, the limitation period under Article 59 would commence from 18.10.2012 and consequently, the present suit filed on 25.04.2016 is barred under Section 3 of the Limitation Act and has to be therefore, dismissed. The issue is decided accordingly in favour of the defendant and against the plaintiff.
Issue no.2 and 3 (II) Whether this court do not have jurisdiction to try the present suit? OPD.
(III) Whether suit of the plaintiff is barred under Order VII R 11 CPC of having no cause of action to file the same? OPD.
24. The aforesaid issues have neither been pressed by the defendants nor is there any evidence to show that the court does not have jurisdiction to decide the present suit. Moreover, the point of rejection of plaint cannot be taken up on the basis of Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 27 of 38 Suit No.16301/16 evidence adduced, being a demurrer's claim where only plaint is to be read. Therefore, the said issues are decided against the defendants, and in favour of the plaintiff.
Issues no.4 and 5
(IV) Whether the plaintiff is entitled to
cancellation of the sale deed as prayed for? OPP. (V) Whether plaintiff is entitled to a relief of permanent injunction as prayed for? OPP.
25. The main issue to be decided is whether the plaintiffs are entitled to the cancellation of sale deed as prayed for by them. The relief of cancellation of sale deed is found in Section 31 of the Specific Relief Act, 1963 :
"31. When cancellation may be ordered.--(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled."
However, before proceeding to consider whether the requirements of Section 31 are fulfilled in the present case, it would be appropriate to decide the objection raised by the ld. Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 28 of 38 Suit No.16301/16 Counsel for the plaintiff based upon Section 23 of the Registration Act, 1908. The said section reads as :
"23. Time for presenting documents.--Subject to the provisions contained in Sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution:
Provided that a copy of a decree or order may be presented within four months from the day on which the decree or order was made or, where it is appealable, within four months from the day on which it becomes final."
26. It has been submitted on behalf of the plaintiffs that as the document was executed on 04.04.2012 and registered on 18.10.2012 with a lapse of more than 04 months, therefore, the said document has not been validly registered by the Sub- Registrar. The said contention is misplaced. A persual of Ex.PW- 4/A which is the sale deed in question would show that it was executed and presented on the same day, i.e. 04.04.2012 itself and was thereafter, registered on 18.10.2012. Section 23 only deals with the time period between execution and presentation and not the time period between presentation and registration. Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 29 of 38 Suit No.16301/16
27. In Subhash Chander Ahuja v. Ashok Kumar Ahuja , 2004 SCC OnLine Del 735 : (2005) 116 DLT 125, the Hon'ble High Court has explained the application of the provision in the following words :
"7. So far as the registration of the four documents beyond the period of eight months is concerned, learned Counsel for the Plaintiffs strenuously submits that the action is in violation of the Registration Act, 1908 and the Delhi Registration Rules, 1976. Section 23 mandates that a document must be presented for registration within four months of their execution; and Section 25 empowers the Registrar to accord registration within a further four months if he is satisfied that their presentation within the period of four months was not possible "owing to urgent necessity or unavoidable accident". Section 32 prescribes that the presentation of a document for registration can be carried out by any of its executants or claimants/beneficiaries thereof, or such persons, representatives/assigns/attorney(s). Section 34 thereafter envisages that the registering officer should conduct an inquiry at which the concerned persons should be present. This inquiry is expected to be completed in the eight months mentioned above, but the Proviso of Section 34 apparently extends the taking of the final decision whether to Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 30 of 38 Suit No.16301/16 permit or refuse registration arguably by another four months, in the circumstances mentioned in the statute. It is important to underscore that the appearance of the persons involved/interested in the registration need not be simultaneous. There appears to be no foundation for the argument of Mr. Singhla that the registration must be allowed on the same day as the presentation. At the present juncture it appears that the documents were presented for registration and therefore what remain was to satisfy the Sub-Registrar on any queries that may have been raised. It is common place that there is a hiatus between the presentation of documents for registration and their delivery to the holder of the Registration Slip. No provision has been shown to me either under the Registration Act or under the Delhi Registration Rules, 1976 which proscribe the delivery of documents after eight months of their presentation for registration. The Registration Act prescribes that a document must be presented for registration within four months of its execution and thereafter be done within a further period of four months but with special leave.
8. Since it is not in dispute that the documents have been executed on 27th February, 2002 and presented on that very date, there would be no Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 31 of 38 Suit No.16301/16 impediment so far as the period of eight months is concerned. A reading of Rule 33 of the Delhi Registration Rules, 1976 makes it amply clear that what is expected of the Registering Officer is that the inquiry pertaining to the execution of the document should be done "with as little delay as possible". This explains the usual interregnum between presentation and delivery of documents. The statement in the letter dated 11.3.2002 for Registration Slips had been issued is extremely telltale. Rule 41 of the Delhi Registration Rules, 1976 mandates that these Registration Slips should be taken back contemporaneously with the delivery of the documents."
28. Therefore, it is open to the Registrar to register a document as and when he sees fit once the same has been presented and Section 23 would only be applicable for documents which have been presented more than 04 months after their execution. The story put forward by the defendant that the document was not immediately registered due to the pendency of NOC before concerned Tehsildar, has gone unrebutted and has the ring of truth. In fact, a suggestion was given to the sole defendant witness DW-1 by the plaintiff that "it is correct that the duty to bring the NOC in the present matter was that of the Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 32 of 38 Suit No.16301/16 plaintiff.... it is correct that the NOC of the said sale deed had come on 16.10.2012". It stands to reason that the plaintiffs were well aware about the NOC requirement and in fact, it was the plaintiffs who procured the NOC. The plaintiffs would obviously be aware also about the death of Sh. Bhagwan. Therefore, there is no infirmity in the presentation and registration of the said document.
29. Now, coming to the application of Section 31 of the Specific Relief Act to the present case. The three conditions that must be satisfied before the relief of cancellation can be decreed are that :
(i) the written instrument in question is either void and voidable as against the plaintiff;
(ii) the plaintiff may reasonably apprehend serious injury from the instrument being left outstanding; and
(iii) in view of all the circumstances of the case, Court considers it reasonable and proper to administer the protective and preventive justice asked for.
30. The main ground which has been taken up by the plaintiffs is that after the execution of the sale deed, the plaintiffs Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 33 of 38 Suit No.16301/16 found that their names have been removed from the Khata Khatauni of the suit property by the Revenue authorities who had sanctioned the mutation in favour of the defendant. The plaintiffs have further averred that on coming to know of this fact, they applied for certified copy of the sale deed and obtained the same on 08.12.2015 and came to know that the name of Sh. Bhagwan as well as photographs of Sh. Bhagwan have been deleted from original sale deed and that there is cutting/alteration in the same and that the signatures of the executants are at a different place and the signatures of the plaintiffs also appeared different. It is averred that the same renders the sale deed void and that even though Sh. Bhagwan was the executant of the sale deed, his property is not the subject matter of the sale deed registered on 18.10.2012.
31. After having perused the record and considered the law, I find that the entire case of the plaintiff is frivolous and baseless. It is the admitted position that the plaintiffs have transferred their land in favour of the defendant. It is not disputed by the plaintiffs that in fact, the very land as mentioned in the sale deed has been transferred by them for sale consideration which has also been received by them. Based upon the execution Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 34 of 38 Suit No.16301/16 and registration of sale deed, the civil case filed by the defendant for Specific Performance was compromised and moreover, the criminal cases filed by the defendant against the plaintiffs were subsequently quashed by the Hon'ble High Court on the basis of the performance of the terms and conditions of the compromise deed. The plaintiffs have not been able to point out a single fact which would render a sale deed void or voidable as against them. The plaintiffs have entered into the transaction with open eyes and have also received the entire sale consideration without any objection and remained silent for more than 03 years after the execution of the sale deed. They have ensured that the criminal cases against them also got quashed before filing the present suit and raising all manner of objections against the said sale deed. The removal of name of Sh. Bhagwan in no way concerns the plaintiffs and does not render the sale deed void or voidable as against them. The removal of their names from the revenue record is a matter to be taken by them before the concerned revenue authorities. Any error by the concerned revenue authorities would not lead to an interpretation that the present sale deed has the potential for mischief. The defendant is a bonafide purchaser for good value and there can be no turning Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 35 of 38 Suit No.16301/16 back of the clock at the mere asking of the plaintiff.
32. In Prem Singh v. Birbal, (2006) 5 SCC 353 : 2006 SCC OnLine SC 522 it was observed by the Hon'ble Supreme Court that :
"27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption."
33. In Latif Estate Line India Ltd. v. Hadeeja Ammal, 2011 SCC OnLine Mad 215, it was observed by the Hon'ble Supreme Court that :
"55. From the reading of the aforesaid provision, it is manifest that three conditions are requisite for the exercise of jurisdiction to cancel an instrument i.e., (1) An instrument is avoidable against the plaintiff;
(2) The plaintiff may reasonably apprehend serious injury by the instrument being left or outstanding;
and (3) In the circumstances of the case, the Court Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 36 of 38 Suit No.16301/16 considers it proper to grant this relief of preventive justice.
56. A Full Bench of the Madras High Court in the case of Muppudathi Pillai v. Krishnaswami Pillai, AIR 1960 Madras 1 elaborately discussed the provision of Section 39 (New Section 31) and held:--
"12. The principle is that such document though not necessary to be set aside may, if left outstanding, be a source of potential mischief. The jurisdiction under Section 39 is, therefore, a protective or a preventive one. It is not confined to a case of fraud, mistake, undue influence, etc. and as it has been stated it was to prevent a document to remain as a menace and danger to the party against whom under different circumstances it might have operated. A party against whom a claim under a document might be made is not bound to wait till the document is used against him. If that were so he might be in a disadvantageous position if the impugned document is sought to be used after the evidence attending its execution has disappeared. Section 39 embodies the principle by which he is allowed to anticipate the danger and institute a suit to cancel the document and to deliver it up to him. The principle of the relief is the same as in quia timet Sh. Attar Singh and Ors. Vs United Online India Pvt. Ltd. Page No. 37 of 38 Suit No.16301/16 actions."
34. The relief of cancellation of sale deed is a discretionary relief which is to be exercised with care. The facts and circumstances would reveal that no evidence has been adduced to give this court any ground to cancel the sale deed. Therefore, the said issues are decided against the plaintiffs and in favour of the defendant.
Relief :
35. In view of the facts and circumstance, suit of the plaintiff is accordingly dismissed.
36. Parties to bear their own costs.
37. Decree Sheet be drawn up accordingly.
38. File be consigned to Record Room after due Digitally compliance. signed by DIVYANG DIVYANG THAKUR THAKUR Date:
Announced in the open court 2024.07.05
15:22:08
On 05.07.2024 +0530
(Divyang Thakur)
ADJ-03/South West
Dwarka / New Delhi
05.07.2024
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