Delhi District Court
Jain Raj And Sons Huf vs Subhash Chand on 30 March, 2024
IN THE COURT OF SH. RAMESH KUMAR-II,
ADDITIONAL DISTRICT JUDGE-01, SHAHDARA
DISTRICT, KARKARDOOMA COURTS,
DELHI
CNR No.: DLCH010029022016
CS No. 1917/2016
In the matter of:-
Shri Jain Raj & Sons. (HUF)
Through its Karta Sh. Raj Jain
221, Bank Enclave,
Delhi-110092.
.....Plaintiff
Versus
1. Sh. Subhash Chand
S/o Late Kanwar Sain.
2. Sh. Sudeep Goyal
S/o Sh. Subhash Chand
Both R/o A 7/29, 2nd Floor,
Sector-16, Rohini, Delhi- 110085.
3. Shri Vishal Chhibber
4. Smt. Hani Chhibber
W/o Sh. Vishal Chhibber
Both R/o K-11, Neveen Shahdara,
Delhi-110032.
5. The Sub-Registrar
Sub District Court IV-A,
Office of Dy. Commissioner (N/E)
Nand Nagri, Delhi- 110093
......Defendants
Date of Institution : 11.03.2011
Date of judgment : 30.03.2024
Decision : Decreed
CS 1917/2016 1
JUDGMENT
1 This is a suit for possession of Built up property bearing municipal no.95/1, G.T. Road, Shahdara, Delhi-110032, forming part of Khasra No.1940/95/2 in the areas of Village Chandrawali, admeasuring approx. 434 Sq. Yds., Declaration, Mandatory and Permanent Injunction.
Before proceeding further, it is relevant to mention here that initially the present suit was filed before Hon'ble High Court of Delhi but subsequently it was transferred to Karkardooma Courts, Delhi by Hon'ble High Court of Delhi in view of notification no.27187/DHC/Orgl. Dated 24.11.2015.
BRIEF FACTS 2 It is stated by the plaintiff in his plaint that vide agreement dated 28.08.2010, defendant no.1 entered into an agreement with Shri Raj Jain as Karta of the Plaintiff thereby agreeing to sell the built-up property bearing Municipal No.95/1, G.T. Road, Shahdara, Delhi-110032, forming part of Khasra no.1940/95/2 in the area of village Chandrawali (hereinafter referred to as 'suit property'), admeasuring approx. 434 sq. Yds. and to execute the necessary sale deed in the name of Shri Raj Jain or his nominee. The sale deed was agreed upon to be executed on or before 30.12.2010. The plaintiff through its Karta paid a sum of Rs.15 lacs at the time of execution the said agreement. As per the agreement the defendant no.1 undertook to give to the plaintiff, original relinquishment deed and general power of attorney at the time of registration of the sale deed. It is further stated that the defendant no.1 however persuaded the plaintiff to extend the time for the execution of sale deed until 17.01.2011 vide further CS 1917/2016 2 agreement dated 27.12.2010. Again on the request of defendant no.1 the time to execute the sale deed was extended upto 31.01.2011.
3 It is further stated that again defendant no.1 requested that he needs some more time to execute the sale deed and after much persuation the plaintiff by way of another agreement dated 15.01.2011 extended time for the same finally till 07.02.2011. 4 It is further stated that before execution of the Sale Deed plaintiff applied for No Objection Certificate in terms of Section 8 of Delhi Land (Registration of Transfer) Act, 1972 and got the said No Objection. As soon as the plaintiff received said No Objection, he also purchased stamp duty of Rs.3,66,000/- (Rupees Three Lacs Sixty Six Thousand Only). The plaintiff along with defendant no.1 & 2 also got the sale deed typed on these stamp papers in respect of the suit property. As this Sale deed was to be registered on 07.02.2011 the plaintiff also got prepared pay order for an amount of Rs.50,100/- (Rupees Fifty Thousand One Hundred Only) which was to be paid at the time of registration of sale deed.
5 It is further stated that after the defendant received from the plaintiff the remaining sale consideration as per the sale agreement Shri Raj Jain Karta of the plaintiff and defendant no.2 as son and Special Power of Attorney of defendant no.1 duly signed executed and submitted the sale deed for its registration in office of the Sub-Registrar IV-A, Nand Nagri, Delhi-110093, the defendant no.5 herein, on 07.02.2011.
6 It is further stated that on submission of sale deed for registration in the office of Sub Registrar IV-A, Nand Nagri, Delhi-110093, the said office issued Token No.68 for that CS 1917/2016 3 purpose. Shri Raj Jain Karta of the plaintiff, the defendant no.2 and the defendant no.1 along with witnesses Shri Anil Kumar Jain and Shri Brahm Prakash were waiting for their turn to be present before the said Sub-Registrar, for registration. But before their call to appear before said Sub Registrar, could take place, suddenly one Mr. Vishal Chhibber defendant no.3 herein along with his associates entered in the office of said Sub-Registrar and started quarreling with the defendant no.2.
7 It is further stated that it appears that because of the quarrel some body informed the police as within a very short time a PCR along with local police reached there and took all of them quarreling to the police station. However, at the time of leaving defendant no.2 assured the plaintiff that he would come back soon by the time their Token is called upon and would ensured registration of the sale deed already submitted for the same in the office of Sub-Registrar-defendant no.5. But when ever after a long time the defendant no.2 did not come back and the time for registration was over, the plaintiff went to the police station where it was revealed that the defendant no.2 had already left the police station much before after getting released by the police as both the parties had compromised the matter in the police station. 8 It is further stated that the fact however remained that the defendant no.1 & 2 did not come forward to ensure registration of sale deed, consequently the sale deed could not be registered. Since then the plaintiff on so many occasions contacted defendant no.1 & 2 and tried to persuade them to fix some time for registration of the already executed sale deed but to no avail, as the said defendants kept the matter pending on one pretext or the other and did not get the sale deed registered.
CS 1917/2016 49 It is further stated that the plaintiff was shocked when he came to know on 03.03.2011 that the defendant no.1 & 2 has already executed and got registered another sale deed in respect of the same property in favour of another person-defendant no.4 herein on 01.03.2011, in connivance with the Sub-Registrar- defendant no.5 herein.
10 It is further stated that the aforesaid fact of earlier submission of sale deed was well within the knowledge of defendant no.5. Records of defendant no.5 also had the entry of submission of sale deed dated 07.02.2011 and issuance of token no.68 for its registration. In view of the above fact defendant no.5 ought not to have accepted another sale deed of the later dated i.e. 01.03.2011 and would have declined registration thereof in the presence of record of the prior sale deed, at least without issuing notice to the plaintiff. Similarly, the said fact of prior sale deed was also well within the knowledge of defendant no.3 and 4 who also ought not to have entered into such transaction with defendant no.1 & 2. Thus, the defendants in collusion with each other got created another sale deed in the name of the defendant no.4 with the sole motive to cause wrongful loss, mental tension and agony to the plaintiff and to grab plaintiff's property for which entire sale consideration has already been paid by the plaintiff to the defendant. Thus, all the defendants are also liable to be prosecuted adequately under the provisions of Indian Penal Code.
11 It is further stated that immediately after receiving the aforesaid shocking information, the plaintiff lodged a police complaint to this effect and also brought the aforesaid facts to the knowledge of defendant no.5 vide complaint dated 03.03.2011.
CS 1917/2016 5Defendant no.5 was further requested not to release the original of the sale deed registered on 01.03.2011 to either of the parties or to any other person on their behalf.
12 It is further stated that the defendant no.1 to 4 are now avoiding the police on one pretext or the other and plaintiff has apprehension in his mind that the defendants may create third party interest also over the suit property and that therefore, the plaintiff prayed for the possession in his favour and against the defendant no.1 to 4 of the property bearing Municipal No. 95/1, G.T. Road, Shahdara, Delhi- 110032, forming part of Khasra no. 1940/95/2 in the area of village Chandrawali, admeasuring approx. 434 sq. Yds., mandatory injunction against the defendant no.1 & 2 thereby directing them to get the sale deed dated 07.02.2011 in his favour registered with Sub Registrar IV-A, Nand Nagri, Delhi-110093 and to direct the defendant no.5 i.e. Sub Registrar IV-A to register the same, permanent injunction against the defendant no.1 to 4 thereby directing them not to create any third party interest in the suit property in any manner whatsoever and also against the defendant no.5 not to release the Sale Deed executed and registered on 01.03.2011, declaration of the sale deed dated 01.03.2011 executed by the defendant no.1 & 2 in favour of defendant no.4 is null and void, non-est and non enforceable in the eyes of law.
PROCEEDINGS 13 Pursuant to the issuance of summons in the present suit, the defendants appeared on 07.04.2011, the defendant no.1 & 2 jointly and defendant no.3 & 4 jointly filed their separate written statement.
14 The defendant no.1 & 2 had stated in their written CS 1917/2016 6 statement that defendant no.1 had entered into an agreement to sell dated 28.08.2010 with Shri Raj Jain in respect of the suit property. The agreement records: (i) Area of the property agreed to be sold is "434 Sq. Yds." (ii) Defendant no.1 agreed to sell the aforesaid property, "for Rs.33,000/- (Rs. Thirty Three Thousand Only) per Sq. Yds." Thus the agreed sale consideration is 434 X 33,000 = Rs.1,43,22,000.00 (Rs. One Crore Forty Three Lakhs Twenty Two Thousand Only). It is further stated that the Vendee, Shri Raj Jain agreed that "the balance as per calculation area at site shall be received by the first party from the second party". The plaintiff has filed a copy of the said agreement to sell at page 16 with his list of documents. The answering defendants hereby admit the said copy of the agreement to sell. It is further stated that Shri Raj Jain conveyed to the answering defendants, that he had completed the formalities for execution of sale deed, had the consideration ready to be paid and desired that the sale deed be executed and registered on 07.02.2011. The defendants bona fide believed Shri Raj Jain in this regard. It is further stated that defendant no.1 was scheduled to be out of station on the said date. He therefore sent his son, also his special power-of- attorney, defendant no.2 for executing and registration of the sale deed. Defendant no.1 also requested Shri Raj Jain to show him the sale deed/its draft on or before 06.02.2011. Despite assurances, Shri Raj Jain did not produce the sale deed/its draft for perusal of defendant no.1 on or before 06.02.2011. It is further stated that as stated, defendant no.1 was not in Delhi on 07.02.2011, his son i.e. defendant no.2 reached the office of the concerned Sub-Registrar for execution and registration of sale deed. Shri Raj Jain came to the office of the CS 1917/2016 7 Registrar at about 10:00 A.M. He took out a sale deed from his possession and asked defendant no.2 to sign the same and complete the other formalities for its registration. He suggested that any delay in singing and presentation of papers would be very inconvenient as they would be put into the queue and may have to wait for a long time. It is further stated that the defendant no.2 was thus persuaded to sign at the dotted lines, to put his finger prints where he was directed to, without even reading the sale deed. It is further stated that after signing the sale deed and completion of other formalities, there was a interregnum before the parties were to be called before the Sub-Registrar for a formal presentation, receipt of balance consideration and registration of the sale deed. It is further stated that it was during this interregnum that defendant no.2 could go through a copy of the sale deed. He found it to be a serious and deliberate act of fraud upon the Vendors inter alia for the following reasons: (i) Instead of the agreed consideration of Rs.1,43,22,000.00 (Rs. One Crore Forty Three Lakhs Twenty Two Thousand Only); the sale deed mentioned the consideration of Rs.61,00,000.00 (Rupees Sixty One Lakh Only). Thus, the sale deed does not mention the true and correct sale consideration agreed to between the parties. (ii) The payment of balance consideration is proposed to be made by cheques and not by any assured mode of payment viz draft or banker's cheque. The answering defendant later learnt that the alleged Vendor did not even have the sufficient amount in the accounts upon which the said cheques were drawn to honor the cheques; (iii) Defendant no.1 had entered into the agreement to sell with "Shri Raj Jain S/o Late Shri R.S. Jain". The sale deed was drawn in favor of Jain Raj and Sons (HUF). The answering CS 1917/2016 8 defendant had no privity of contract with the said HUF. They had no notice that the Vendee had nominated the HUF in respect of the sale of the suit property to it. It is further stated that obviously, defendant no.2 could not go ahead with the execution of such a sale deed. The plaintiff had unilaterally reduced the consideration in the deed to less than half of the amount of the agreed sale consideration between the parties. Even the reduced sale consideration was proposed to be paid by cheques. The Vendee named in the sale deed was a stranger with whom the answering defendants had no privity of contract. It is further stated that alarmed, defendant no.2 spoke to his father on telephone and informed him with the massive fraud attempted by the plaintiff upon them. Defendant no.1 was not in Delhi. He called his family friend Shri Vishal Chhiber, (Defendant no.3 herein) and requested him to reach the office of the Sub- Registrar for help of his son i.e. defendant 2. It is further stated that defendant no.3, at the request of defendants no.1 and 2 reached the office of the Sub-Registrar IV A. They also informed the PCR at No.100. Defendant no.2 refused to appear before the Sub-Registrar to admit execution of the sale deed or to receive the alleged balance sale consideration or for any other purpose. It is further stated that thus the Vendee in the agreement had failed to perform his part of the contract. He has violated the essential terms of the contract. He has acted in fraud of the contract and has subverted the agreement to sell. By his conduct, the Vendee had forfeited his right under the agreement to sell or to claim specific performance of the contract. The agreement stood terminated and cancelled. It is further stated that it is stated that defendant no.1 had taken a loan of Rs.60,00,000/- from CS 1917/2016 9 defendant no.3 and 4 between the period of October-December 2010 for some urgent necessity. Since the amount of loan was huge, to secure it, defendants no.3 and 4 obtained an agreement to sell from defendant no.1 in respect of the plot of defendant no.1 situated right adjacent to the suit property. It is further stated that upon the termination of the agreement to sell with Shri Raj Jain, defendants no.3 and 4 requested that the suit property be sold to defendant no.4 for an amount equivalent to the sale consideration agreed with Shri Raj Jain. Therefore, defendant no.1 conveyed the suit property to defendant no.4 by a sale deed dated 03.03.2011 duly presented before the Sub-Registrar IV-A. This is a genuine sale transaction between defendant no.1 and 4. Defendant no.4 has paid full sale consideration to defendant no.1. Defendant no.4 is a bona fide purchaser for value of the suit property. He is entitled to the delivery of the sale deed to him.
15 The defendant no.3 & 4 had stated in their written statement that defendant no.4 is a bonafide purchaser of the suit property for value. It is further stated that defendants no.3 and 4, before the purchase of the suit property by defendant no.4 examined the title of defendant no.1 in it. Defendant no.1 had also shown to them (i) the copy of the agreement to sell dated 28.08.2010 by him in favor of Shri Raj Jain in respect of the suit property and (ii) a copy of the sale deed dated 07.02.2011 purported to have been executed on behalf of Shri Subhash Jain in favor Jain Raj & Sons (HUF). The answering defendants were also informed that the conduct of Shri Raj Jain and Jain Raj & Sons (HUF) was fraudulent as they had in the sale deed showed a consideration of Rs.61,00,000 (Rupees Sixty Lakhs Only) instead of the agreed consideration of Rs.1,43,22,000/- (Rupees One CS 1917/2016 10 Crore Forty Three Lakhs Twenty Two Thousand Only). The answering defendants were advised that in view of the said fraud upon the said agreement to sell, the agreement stood terminated. The specific performance of that agreement did not lie. The title of the said property continued to vest in defendant no.1. It is further stated that the answering defendants consulted their Counsel and showed him the above referred documents. They were advised that the statements made by defendants no.1 and 2 referred to above are correct in law. They were further advised that defendant no.1 had a marketable title in the suit property. It is further stated that therefore, defendant no.4 paid the agreed consideration to defendant no.1, executed a sale deed and both defendants presented the said sale deed for registration. The Sub- Registrar IV-A has unlawfully withhold the said sale deed in favor of defendant no.4. Defendant no.4 is entitled to the delivery of sale deed to her. It is further stated that thus, the suit is without any cause of action. It is further stated that plaintiff is guilty of fraud by unilaterally reducing the sale consideration. The Plaintiff is not entitled to the discretionary reliefs prayed for in the suit. It is further stated that the suit, filed in the garb of reliefs of possession and injunction etc. is infact a suit for specific performance. The suit does not lie as framed. It is further stated that the alleged special power-of-attorney in favor of defendant no.2 is not registered and therefore, could not be used for registration of the sale deed.
16 In the replication qua the written statement of the defendants, the plaintiff has traversed the contents of the written statement of the defendants respectively, made the necessary denials and reiterated the contents of the plaint.
CS 1917/2016 1117 On 18.10.2011, the Hon'ble High Court directed the plaintiff to deposit an FDR of Rs.1,28,00,000/- (Rupees One Crore Twenty Eight Lakhs Only) and the same is lying deposited in the name of this court.
18 On the basis of the aforesaid pleadings of the parties, the Hon'ble High Court had framed the following issues vide its order dated 18.10.2011:-
1. Whether the plaintiff has paid a sum of Rs.67 Lacs to defendant no. 1 in cash, after execution of the agreement to sale dated 28.08.2010 and before 07.02.2011? (OPP).
2. Whether the plaintiff was always ready and willing to perform its part of the contract ?
(OPP)
3. Whether the suit is properly valued for the purpose of court fees ? (OPP)
4. Whether the suit is not maintainable in the present form ? (OPD)
5. Relief.
19 In order to prove the case, the Karta of the plaintiff has examined himself as PW-1 Shri Raj Jain by tendering his affidavit Ex.PW1/A and also tendered some documents as Ex.PW-1/1 to Ex.PW1/14 including:-
1. Agreement dated 28.08.2010 as Ex.PW1/1 (already marked as Ex.P-3 during admission/denial).
2. Agreement dated 27.12.2010 as Ex.PW1/2 (already marked as Ex.P-4 during admission/denial).
3. Agreement dated 15.01.2011 as Ex.PW1/3 CS 1917/2016 12 (already marked as Ex.P-5 during admission/denial).
4. No Objection Certificate as Ex.PW1/4 (Colly).
5. Original Pay Order dated 05.02.2011 as Ex.PW1/5.
6. Sale Deed dated 05.02.2011 as Ex.PW1/6 (Colly).
7. Income Tax Return for financial year 2011-
2012 as Ex.PW1/7.
8. Income Tax Return for financial year 2010- 2011 and Bank statement as Ex.PW1/8 (Colly).
8A. Statement of account/photocopy of passbook as Ex.PW1/8A.
9. Original token No.68 as Ex.PW1/9.
10. Passport as Ex.PW1/10 (already marked as Ex.P-6 during admission/denial).
11. Complaint dated 03.03.2011 as Ex.PW1/11.
12. RTI dated 05.08.2011 and reply dated 03.09.2011 and 06.09.2011 as Ex.PW1/12 (Colly).
13. RTI copy of letter to SDM by the defendant no.4 as Ex.PW1/13.
14. RTI copy of the complaint to SHO by defendant no. 2 dated 07.11.2022 as Ex.PW1/14. 20 The Karta of plaintiff also examined Shri Bhram Prakash as PW-2/A who tendered his affidavit as Ex.PW1/A. 21 No other witness was examined on behalf of the plaintiff and his evidence was closed. Thereafter, the matter was fixed for the defendants' evidence. Defendant no.2 has already been deleted from the array of parties vide order dated 28.05.2012.
CS 1917/2016 13The defendants examined themselves as D4W1 Smt. Honey Chhibbar (defendant no.4 in the present case) and D4W2 Vishal Chhibbar (defendant no.3 in the present case). The defendant no.1, despite grant of number of opportunities, has failed to lead any evidence and vide order dated 05.07.2023 evidence of defendant no.1 was closed by this court. Thereafter, the matter was fixed for hearing of final arguments.
22 The plaintiff filed written synopsis along with copy of case laws and defendant no.3 & 4 also filed their written arguments. 23 I have heard the arguments on both the sides. 24 Ld. Counsel for plaintiff has placed reliance on following case laws in support of his submissions:-
a. Smt. Mandavi Devi Chandrakar @ Dhela Bai vs Tarendra Kumar And Another decided on 10th December, 2019 by Hon'ble Chhatishgarh High Court.
b. Vijay Srivastava Vs. Mirahul Enterprises And Ors., AIR 1988 Delhi 140.
c. Maria Margarida Sequeria Fernandes and Ors. v. Erasmo Jackde Sequeria (Dead) through LRs. AIR 2012 SC 1727.
25 Ld. Counsel for defendant no.3 and 4 has also placed reliance on following decisions of Hon'ble Supreme Court and High Courts:-
a. Balram Singh Vs. Kelo Devi 2022 INSC 1011. b. Lourdu Mari David and Others Vs. Louis Chinnaya Arogiaswamy and Others AIR 1996 SC 2814. c. Jasmer Singh and Ors. Vs. Kanwaljit Singh and another AIR 1991 P&H 194. d. Rajendar Kumar Vs. Mahendra Kumar Mittal and others AIR 1992 All 35. 26 I have perused the record including written arguments filed CS 1917/2016 14
on behalf of the parties and case laws filed on behalf of the plaintiff and defendant no.1. On perusal of record my issue-wise findings are as follows:-
ISSUE NO.1:-
"Whether the plaintiff has paid a sum of Rs.67 Lacs to defendant no. 1 in cash, after execution of the agreement to sale dated 28.08.2010 and before 07.02.2011? (OPP). 27 By way of the present suit the plaintiff seeks the possession of the suit property and mandatory injunction against defendant no.1 and 2 thereby directed them to get the sale dated 07.02.2011 executed in favour of the plaintiff and direct the defendant no.5 to register the sale deed. The plaintiff further prayed to pass a decree of permanent injunction against defendant no.1 to defendant 4 thereby directing them not to create any third-party interest in the suit property and directing defendant no.5 to release the sale deed executed and registered on 01.03.2011 and the plaintiff also prayed to pass a decree for declaration that the sale deed dated 01.03.2011 executed by the defendant no.1 and defendant no. 2 in favour of the defendant no.4 is null and void, non-east and non-enforceable in the eyes of the law and any other order in the interest of law. 28 The defendant no.1 and 2 had filed the written statements through their counsels, both defendant no.1 and 2 had mainly opposed the suit of plaintiff on ground that the plaintiff kept them in dark qua preparation of the document and draft of the sale deed etc. They alleged a serious and deliberate act of the fraud upon the plaintiff regarding the correct consideration amount and payment through cheque not by way of assured mode of payment, the plaintiff had not had sufficient money in accounts CS 1917/2016 15 upon which the said cheques were drawn to honour the cheques. It is further opposed that sale deed was drawn in the favour of Jain Raj and sons (HUF) which the defendant had no privity of contract. It was alleged that the agreement to sell the suit property was got terminated and cancelled by violation of plaintiff. It is stated by the defendant no.1 and 2 that the suit property was sold to vide sale deed dated 03.03.2011 to the defendant no.4 by the defendant no.1. It is pertinent mention that the defendant no.2 had expired, hence his name has been deleted from the arrayed of the parties vide order dated 28.05.2012 and the defendant no.1 has failed to appear to lead the evidence and contest the suit despite several opportunities. 29 Per contra, the same has been contested by the defendant no.3 and defendant no.4 on the ground that they opposed the suit of the plaintiff mainly the agreement to sell between plaintiff and defendant no.1 was got terminated since a fraud was discovered and subsequently the defendant no.1 had executed a sale deed of suit property in the favour of the defendant no.4. It is further stated that the suit does not lie as framed being a suit of specific performance. Defendant no.4 is a bonafide purchaser of the suit property for value. It is further stated that defendants no.3 and 4, before the purchase of the suit property by defendant no.4 examined the title of defendant no.1 in it. Defendant no.1 had also shown to them (i) the copy of the agreement to sell dated 28.08.2010 by him in favor of Shri Raj Jain in respect of the suit property and (ii) a copy of the sale deed dated 07.02.2011 purported to have been executed on behalf of Shri Subhash Jain in favor Jain Raj & Sons (HUF). The answering defendants were also informed that the conduct of Shri Raj Jain and Jain Raj & CS 1917/2016 16 Sons (HUF) was fraudulent as they had in the sale deed showed a consideration of Rs.61,00,000 (Rupees Sixty Lakhs Only) in stead of the agreed consideration of Rs.1,43,22,000 (Rupees One Crore Forty Three Lakhs Twenty Two Thousand Only) and prayed dismissal of the present suit.
30 In order to prove the claim, the Karta of the plaintiff has relied upon various documents which has been stated above in para no.19 of this judgment. Careful perusal of Ex.PW1/1 to PW1/14 reveal that the agreement to sell dated 28.08.2010 and its extension was always sought by the defendant no.1 for vacation of suit premises. The plaintiff had prepared all the essential documents for execution of sale deed. The defendant no.1 and defendant no.2 were well aware about the same. Sale Deed dated 05.02.2011 Ex.PW1/6 (Colly.) was executed in favour of plaintiff was also signed by the defendant no.2 and Ex.PW1/4 (Colly.) was applied by defendant no.1, and the defendant no.1 and defendant no.2 have not issued any notice to terminate or cancel the agreement to sell dated 28.08.2010 and its subsequent time extension deed. Apart from the said facts, it is admitted fact in written statements filed by defendant no.1 to defendant no.4 that the agreement to sell was executed between the plaintiff and defendant no.1 which was witnessed by defendant no.2. The said agreement to sell was not declared null and void by court or any party till date. Neither the defendant no.1 nor defendant no.2 had appeared before the court and entered into witness box to deny the execution or termination of the agreement to sell during the entire proceedings, therefore the said agreement to sell is valid and legal enforceable one. 31 The documents Ex.PW1/4 (Colly.) and Ex.PW1/6 (Colly.) CS 1917/2016 17 noted that the same were signed by the executants respectively on each page and Ex.PW1/6(Colly) contained the mode of payment wherein the alleged amount of sale deed consideration as per circle rate Rs.61,00,000/- had been shown paid and the said fact was not denied and disputed by the defendant no.1 except in written statement since he did not opt to appear before the Court after repeatedly opportunities during trial, although the plaintiff has been cross examined on the said point by Ld. Counsel for defendants no.1, 3 and 4 wherein the plaintiff (PW1) stated that the total agreed consideration of Rs.1,43,22,000/- (Rupees One Crore Forty Three Lacs and Twenty Two Thousand Only) of the suit property. It was also deposed by the PW-1 in his cross examination that Rs.46 lacs were to be paid through the cheques at the time of registration to son of the vendor who would execute the sale deed on 07.02.2011. Apart from above amount the defendant no.1 has averred in his written statement that the agreed consideration of Rs.1,43,22,000/- (Rupees One Crore Forty Three Lacs and Twenty Two Thousand Only) as per agreement to sell dated 28.08.2010. Thus the consideration for the sale of the disputed property was Rs.1,43,22,000/- (Rupees One Crore Forty Three Lacs and Twenty Two Thousand Only)is admitted fact. The pleadings and evidence do not dispute the fact of payment Rs.15 lacs to the defendant no.1 by plaintiff (PW-1) even in this regard the testimony of D3W2 is worth to mention that "I have knowledge that Mr. Raj Jain has paid Rs.15,00,000/-
(Rupees Fifteen Lacs Only) to Sh. Subhash Chand towards earnest money, pursuant to agreement to sell dated 28.08.2010"
again it is admitted fact that plaintiff had paid Rs.15 lacs to the defendant no.1 / seller. Further it was deposed by the PW-1 that CS 1917/2016 18 he had paid Rs.82,22,000/- (Rupees Eighty Two Lacs and Twenty Two Thousand Only) of agreed sale consideration to the defendant no.1 at residence of defendant no.1 and said fact was also corroborated by the PW-2 in his deposition before the court. The payment of said amount can only be refuted or denied by the receiver himself or other eye witness, since the defendant no.1 has not appeared before the court to deny the making of said payment. It is not a case of defendant no.3 and 4 that they had witnessed the sale negotiation and agreement to sell entered by the plaintiff and defendant no.1. It is also supported by ITR of PW1 (Ex.PW1/7). This fact of payment of part agreed i.e. Rs.82,22,000/- (Rupees Eighty Two Lacs and Twenty Two Thousand Only) was proved in favour of plaintiff. 32 Onus to prove issue no.1 i.e. as to whether the plaintiff has paid a sum of Rs.67 Lacs to defendant no.1 in cash, after execution of the agreement to sale dated 28.08.2010 and before 07.02.2011, was upon the plaintiff and the same was not disputed by either parties of suit in course of proceeding. The plaintiff had admitted in his cross examination that he had to pay the balance amount of Rs.1,28,22,000/- (Rupees One Crore Forty Three Lacs and Twenty Two Thousand Only) at the time of registration of the sale deed before the Sub-Registrar. He further stated in his cross-examination that he had brought the cheques of Rs.46 lacs to be paid before the Sub-Registrar since on a day before the date of execution of the registry, defendant has taken a sum of Rs.82,22,000/- at his residence as the sale deed was to be registered at circle rate, which comes to approximately Rs.61 lacs. It is pertinent to mention that the amount of Rs.61 lacs was in question in sale deed and it is nowhere mentioned the amount CS 1917/2016 19 as Rs.67 lacs in either in plaint and written statement of defendants no.1, 3 and 4 which was to be paid by plaintiff. Although the plaintiff had paid a sum of Rs.82,22,000/- to the defendant no.1 in a cash a day before execution of the registry. Apart from the said amount he had also paid Rs.15 lacs as token money to the defendant no.1 at the time of agreement to sell. 33 Per contra the defendants have not lead any documentary evidence or other evidence to rebut the payment of consideration to defendant no. 1 for sale of suit property.
34 Having carefully perused the documentary and oral evidence lead by either of the parties this court of view that the plaintiff has been duly discharged his burden to prove the fact that he had made the payment of sum to the plaintiff, the issue no.1 is decided in favour of plaintiff and against the defendant no. 1, 3 and 4.
35 Therefore, in conclusion, the plaintiff has clearly proved his case on the test of preponderance of probabilities whereas the defendants have miserably failed to rebut the claim of the plaintiff or to prove their own defence.
ISSUE NO.2 "2.Whether the plaintiff was always ready and willing to perform its part of the contract ? (OPP)".
36 In view of the above issue framed, the burden of proof was lie on the plaintiff and the same was not disputed by either parties of suit in course of proceeding. The plaintiff has led evidence of his deposition before court in his examination-in-chief and he exhibited his Income Tax Return for financial year 2011-2012, Ex.PW1/7, Income Tax Return for financial year 2010-2011 and Bank statement, Ex.PW1/8 (Colly.), Statement of account/ CS 1917/2016 20 photocopy of passbook, Ex.PW1/8A in order to show his financial capacity as well his readiness and willingness can be inferred from the cheque number mentioned in the sale deed. The argument of defendants is that the plaintiff had not offered the payment of remaining sale price through assured mode like demand draft or pay order is not tenable since the agreement to sell as concluded between the plaintiff and defendant no.1 is silent in this regard. In view the same, the payment made through the cheques which is permitted mode of payment under the law cannot be termed faulted in absence of express exclusion of the same. Apart from the above proved facts, it is matter of record that plaintiff has deposited an FD in name of court of the sum Rs.1,28,00,000/- (Rupees One Crore Forty Three Lacs and Twenty Two Thousand Only), it shows the readiness and willingness of the plaintiff to perform his part of contract. Furthermore, the plaintiff has performed his part of contract and defendant no.1 had also performed his part of the contract in pursuance of agreement to sell and its extension of various dates as concluded between the plaintiff and defendant no.1 by signing the sale deed and procuring token for registry. The only thing remained to be done was to reduce the contents of sale deed in registration book lying at Sub-Registrar Office and assign the registration to the sale deed.
37 Per contra the defendants have not lead any documentary evidence or other evidence to rebut the payment of consideration to defendant no.1 for sale of suit property. Further, the defendant no.3 and 4 have no privity in the agreement to sell as concluded on 28.08.2010 and sale deed executed and they are completely stranger to them, therefor they can not question the validity of CS 1917/2016 21 said agreement to sell and sale deed.
38 Having carefully perused the documentary and oral evidence lead by either of the parties this court of view that the plaintiff has been duly discharged his burden to prove the fact that he had made the payment of sum to the plaintiff, the issue no.1 is decided in favour of plaintiff and against the defendant no. 1, 3 and 4. Therefore, in conclusion, the plaintiff has clearly proved his case on the test of preponderance of probabilities whereas the defendants have miserably failed to rebut the claim of the plaintiff or to prove their own defence. Accordingly, it is held that the plaintiff has been duly able to establish his rights and interest qua the suit property bearing municipal no.95/1, G.T. Road, Shahdara, Delhi- 110032, forming part of Khasra No.1940/95/2 in the areas of village Chandrawali, admeasuring approx. 434 Sq. Yds.
ISSUE NO.3 "Whether the suit is properly valued for the purpose of court fees ? (OPP)".
39 Having carefully perused the documentary and oral evidence led by either of the parties this court of view that the plaintiff has been duly able to establish his rights and interest qua the suit property and the plaintiff has properly valued the suit and the proper court fees has been paid by the plaintiff against the relief claimed. Hence, the issue no. 4 is also decided in the favour of the plaintiff and against the defendants. ISSUE NO.4 "4. Whether the suit is not maintainable in the present form ? (OPD)"
CS 1917/2016 2240 In view of the above issue framed, the burden of proof was lie on the defendants and the same was not disputed by either parties of suit contesting in course of proceeding. The defendant no.1 is titleholder of the suit property and defendant no.3 and 4 are stated to be subsequent purchaser of the suit property. The issue that the present suit is maintainable or not in present form?, the plaintiff has prayed for the possession of the suit property and mandatory injunction against defendant no.1 and 2 thereby directed them to get the sale dated 07.02.2011 executed in favour of the plaintiff and direct the defendant no.5 to register the sale deed. The plaintiff further prayed to pass a decree of permanent injunction against defendant no.1 to defendant 4 thereby directing them not to create any third-party interest in the suit property and directing defendant no.5 to release the sale deed executed and registered on 01.03.2011 and the plaintiff also further prayed to pass a decree for declaration that the sale deed dated 01.03.2011 executed by the defendant no.1 and defendant no.2 in favour of the defendant no.4 is Null and void, non-east and non-enforceable in the eyes of the law and any other order in the interest of law.
41 The defendant no.1 had only filed written statement, he never appeared before the court and no evidence has been led on his behalf either oral or in documentary form. In other words, this court can say that defendant no.1 was not interested to contested the present suit in any manner. Defendant no.3 and defendant no.4 are in interested to contest the suit since they are stated in possession of suit property and they had also pleaded the purchasing of the suit property on 01.03.2011 through sale deed. The sale deed is also admitted by defendant no.1 in his written CS 1917/2016 23 statement which has been opposed by Plaintiff in his rejoinder. Interestingly the alleged sale deed between Subhash Chand and Honey Chhibber dated 01.03.2011, Ex.DW4/1 and report of Sub- Registrar Ex.DW4/2 is unregistered. The said unregistered sale deed is being relied by the defendant no.3 and 4 to protect their possession of the suit property. The defendant no.3 and 4 have not made any efforts to get it to be registered and they had not chosen any legal recourse to get it registry of the sale deed independently from the present suit. It is pertinent to mention that defendant no.1 was not interested to get it registered in the name of defendant no.4 that is why he never turned up before Sub- Register as well as this Court to contest the suit. Moreover the defendant no.3 and 4 have not produced any independent witness to prove the sale transaction dated 01.03.2011. This unregistered sale deed has not created any right and title of defendant no.3 and 4 in suit property.
42 Issue of maintainability of suit in present form should be considered independently on the merit of the case. The following are the payers of the suit (1) to pass a decree for possession of the suit property; (2) to pass a decree for mandatory injunction directing the defendant no.1 to get the sale deed dated 07.02.2011 executed in favour of plaintiff, registered with the Sub-Registrar IV-A, Nand Nagri, Delhi and also to direct the defendant No.5 to register the same; (3) to pass a decree of permanent injunction against the defendant no.1 to 4 thereby directing them not to create any third party interest in the suit property in any manner whatsoever and also against the defendant no.5 not to release the Sale Deed executed and registered on 01.03.2011, declaration of the sale deed dated 01.03.2011 executed by the defendant no.1 & CS 1917/2016 24 defendant no.2 in favour of defendant no.4 is null and void, non- est and non enforceable in the eyes of law and (5) pass such other and further order as the court deems fit and proper in the facts and circumstances of the case in the interest of justice. The said payers of the plaintiff are objected and opposed by the defendant no.1, 3 and 4 in their written statement and additionally the defendant no.3 and 4 also argued against these payers in their written arguments filed that the present suit is not a suit for specific performance of the contract rather a suit for decree for mandatory injunction, further the suit is based on the unregistered agreement to sell of immovable property, the suit is filed in name of Shri Jain Raj & sons (HUF) whereas the name of Karta of said HUF was mentioned only in memo of parties not in pleading and verification. The said agreement to sell was not executed in name of Karta of HUF but in name of Raj Jain in his own name. Further defendant no.3 and 4 disputed the payment of consideration amount of sale deed dated 07.02.2011 and claimed the suit property as bonafide purchaser from defendant no.1. 43 Having carefully perused all the evidence and pleadings as proved before the court, the court is required to appreciate nature of remedy of specific performance. Halsbury defines.-
"Specific performance" as an equitable relief given by the court in cases of breach of contract in the forms of a judgment that the defendant do actually perform the contract according to its terms and stipulation.
That a contract; according to the Indian Contract Act, is an agreement enforceable by law. From every contract there immediately and directly results an obligation on each of the CS 1917/2016 25 contracting part towards the other to perform such of the terms of the contract as he has undertaken to perform. In the present matter the defendant no.1 has performed his contractual obligation fully by way of putting signature on sale deed dated 07.02.2011 what left to do on the part of defendant no.1 was to appear before the Sub-Registrar for verification of authenticity of the sale deed. It necessitates the perusal of section 55 of Transfer of Property Act 1882, the relevant part is extracted as under:-
"Rights and liabilities of buyer and seller. In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold:
(1) The seller is bound-......
(d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place:
(f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits;........
(3) Where the whole of the purchase-money has been paid to the seller, he is also bound to deliver to the buyer all documents of title relating to the property which are in the seller's possession or power:"
44 It is not a contractual obligation which had to be performed by the plaintiff rather it is a statutory duty of the seller to execute a proper conveyance of the property when the buyer CS 1917/2016 26 had made or tendered the payment of consideration of sale prices. At this juncture, it is obligatory to understand the meaning of the mandatory injunction as defined in section 39 of Specific Relief Act 1963 as under :-
"Mandatory injunctions.--When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts."
The relief of the mandatory injunction is an order requiring the defendant to do some purpose of putting an end to a wrongful state of thing created by him, or otherwise in fulfilment of his legal obligation.
45 In the matter of Maria Margarida Sequeria Fernandes and Ors. v. Erasmo Jackde Sequeria (Dead) (supra), the Hon'ble Supreme Court has reiterated the principle of law with regard to the suit for mandatory injunction. Paragraph 80 of the report states as under:-
Suit for Mandatory Injunction "80. It is a settled principle of law that no one can take law in his own hands. Even a trespasser in settled possession cannot be dispossessed without recourse of law. It must be the endeavour of the Court that if a suit for mandatory injunction is filed, then it is its bounden duty and obligation to critically examine the pleadings and documents and pass an order of injunction while taking CS 1917/2016 27 pragmatic realities including prevalent market rent of similar premises in similar localities in consideration. The Court's primary concern has to be to do substantial justice. Even if the Court in an extraordinary case decides to grant ex-parte ad interim injunction in favour of the plaintiff who does not have a clear title, then at least the plaintiff be directed to give an undertaking that in case the suit is ultimately dismissed, then he would be required to pay market rent of the property from the date when an ad-interim injunction was obtained by him. It is the duty and the obligation of the Court to at least dispose off application of grant of injunction as expeditiously as possible. It is the demand of equity and justice."
46 In the matter of Smt. Mandavi Devi Chandrakar @ Dhela Bai vs Tarendra Kumar And Another (supra), the Hon'ble Chhatishgarh High Court held that "Mandatory injunction is an injunction in a positive form, requiring a person or party to a suit to do a particular thing. It provides a remedy where it is not possible to restore the status quo, unless the wrongdoer is made to undo the wrong, which he has committed. It is granted when to prevent a breach of obligation, it is necessary to compel the performance of certain acts." Therefore the court has to look the meaning of word 'obligation' in the context of Specific Relief Act 1963. Section 2 (a) of Specific Relief Act 1963 defines as that "obligation" includes every duty enforceable by law. In the case at hand the law has casted a duty upon the seller to execute CS 1917/2016 28 conveyance when he received the part payment of the agreed sale price. This duty is an obligation in term of section 2 (a) of Specific Relief Act 1963 in favour of the plaintiff. It is mandatory injunction which can be granted to prevent a breach of obligation, and thereby compel the performance of certain acts. In decision of Hon'ble Delhi High Court in Vijay Srivastava Vs. Mirahul Enterprises And Ors. (supra), the Court had issued mandatory injunction directing the the defendants to hand over the flat booked by the plaintiff without any delay since the plaintiff had paid more than 95% of the value for the purchase of the residential flat and defendant was extracting the amount beyond the agreed terms. In above case the Hon'ble Delhi High Court had issued mandatory injunction on interlocutory application. Whereas the case at hand, the relief of mandatory injunction is sought on the merit. In my considered opinion on settled provision of law the plaintiff is entitled for the relief of mandatory injunction directing the defendant no.1 and defendant no.5 to complete the registration of sale deed since the obligation of legal duty of seller as provided in section 55 (1) (d)(f), section 55 (3) of TP Act read with section 2(a) is existed in favour of plaintiff. The plaintiff has paid (8222000/- + 1500000/-) Rs.9722000/- out of agreed sale consideration to the defendant no.1 in cash and cheque. The plaintiff has admitted that he has to pay remaining amount of Rs.46,00,000/-. The plaintiff has deposited a FD in name of court of the sum Rs.1,28,00,000/-. The plaintiff has merit in his case against the defendant no.1. Remaining sum can be drawn from the FD amount. In my view the court must come to the aid of the plaintiff and if no decree in the form of mandatory injunction is issued, the court would be CS 1917/2016 29 failing in its duty of doing justice between the parties. It is obligation of the defendant no.1 to complete registration process and can be rightly sought only in the form of decree of mandatory injunction so rightly claimed in prayer (b) in plaint. 47 The objection of the defendant no.3 and 4 with regard to maintainability of the suit is misplaced from the material borne out from the record, since defendant no.3 and defendant no.4 have no locus to object and has no right to retain the possession of the suit property, since sale deed dated 01.03.2011 Ex.D4W1/1 is unregistered in her favour, as stated in the covering letter issued by the sub register Ex.D4W1/2. The defendant no.4 has not filed either the counterclaim or a suit for direction for registration of the sale deed dated 01.03.2011 thus it is unauthorised possession of the suit property. Defendant no.3 and defendant no.4 are not entitled to protect the possession of suit property. Defendant no.4 has failed to prove any sale deed in her favour through the seller and adducing any documentary and oral evidences as well as her bonafide to be a bonafide purchaser as defendant no.3 and defendant no.4 were well aware about the agreement to sell and Sale Deed signed between plaintiff and defendant no.1. It is also corroborated from the Ex.PW-1/14 of complaint dated 07.02.2011 filed by defendant no.2 before SHO that Sh. Vishal Chhibber intervened the registration process of the suit property in favour of plaintiff on fateful which resulted into the present litigation. It can be inferred from the content of Ex.PW-1/14 that defendant no.2 had signed the Sale Deed in favour of plaintiff voluntarily and willfully in order to convey the title of suit property having knowledge of sale consideration mentioned in Sale Deed dated 07.02.2011 and said fact was CS 1917/2016 30 rebutted by defendant no.1 who is ultimate seller and title holder of the suit property. This factual finding goes in favour of plaintiff against defendant no.1, 3 and 4 and further entitle the plaintiff for decree of possession of suit property which he purchased the suit property from defendant no.1. Needless to state that the defendant has no right to retain the possession and enjoy the suit property rather defendant no.3 and 4 are directed to vacate the suit property and peacefully hand the possession of suit property to plaintiff.
48 Having carefully perused the documentary and oral evidence led by either of the parties this court of view that the plaintiff has been duly able to establish his rights and interest qua the suit property.
49 Therefore, in conclusion, the plaintiff has clearly proved his case on the test of preponderance of probabilities whereas the defendants have miserably failed to rebut the claim of the plaintiff or to prove their own defence. The issue no.4 is also decided in favour of the plaintiff against the defendants no.1, 3 and 4. As such, the present suit seeking decree for possession of the suit property the built-up area bearing Municipal No.95/1, G.T. Road, Shahdara, Delhi- 110032, forming part of Khasra no. 1940/95/2 in the area of village Chandrawali, admeasuring approx. 434 sq. Yds and decree of mandatory injunction in terms of prayer (a) and (b) maintainable and in fact, is the only relief available to plaintiff.
50 Additionally ld. Counsel for the defendant no.3 and 4 has relied upon the decisions of Hon'ble Supreme Court and High Courts :- (a) Balram Singh Vs. Kelo Devi (supra), (b) Lourdu Mari David and Others Vs. Louis Chinnaya Arogiaswamy and CS 1917/2016 31 Others (supra), (c) Jasmer Singh and Ors. Vs. Kanwaljit Singh and another AIR 1991 P&H 194 and (d) Rajendar Kumar Vs. Mahendra Kumar Mittal and others AIR 1992 All 35. The relied decisions are not much assistance to the defendant no.3 and defendant no.4 for the stated hereinafter that in case title Balram Singh Vs. Kelo Devi (supra), the Hon'ble Supreme Court held that:
"6. Having conscious of the fact that the plaintiff might not succeed in getting the relief of specific performance of such agreement to sell as the same was unregistered, the plaintiff filed a suit simplicitor for permanent injunction only. It may be true that in a given case, an unregistered document can be used and/or considered for collateral purpose. However, at the same time, the plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for substantive relief, namely, in the present case the relief for specific performance. Therefore, the plaintiff cannot get the relief even for permanent injunction on the basis of such an unregistered document/agreement to sell, more particularly when the defendant specifically filed the counter-claim for getting back the possession which was allowed by the learned trial Court. The plaintiff cleverly prayed for a relief of permanent injunction only and did not seek for the substantive relief of specific performance of the agreement to sell as the agreement to sell was an unregistered document and therefore on such unregistered document/agreement to sell, no decree for specific performance could have been passed. The plaintiff cannot CS 1917/2016 32 get the relief by clever drafting."
51 The careful reading of this show that the facts of the case are not identical and similar in any way and it is distinguished from the factual matrix of the present matter since the matter at hand the suit is not for permanent injunction to protect possession of plaintiff in possession of suit property. Further the plaintiff has not sought specific performance of an unregistered agreement to sell, however he prayed for relief of mandatory injunction directing the defendant no.1 and defendant no.5 to get sale deed dated 07.02.2011 registered and that sale deed too executed by the defendant no.2 on behalf of defendant no.1 and it was not contested by the defendant no.1 who is title holder of the suit property, moreover as per evidence on the record no counter claim and suit were filed by defendant no.3 and defendant no.4 against defendant no.1 and plaintiff except defending the present suit on basis of unregistered sale deed dated 01.03.2011 Ex.D4W1/1 while the ratio of Balram Singh Vs. Kelo Devi (supra) itself lays down law against the defendant no.3 and defendant no.4 defence.
52 Further, in the case titled as Lourdu Mari David and Others Vs. Louis Chinnaya Arogiaswamy and Others (supra), the Hon'ble Supreme Court held that:
"it is settled law that the party who seeks to avail of the equitable to jurisdiction of the Court and specific performance being equitable relief must come to the Court with the clean hands. In other words the party who makes false allegation does not come with the clean hands and is not entitled to the equitable relief."
53 Again it is distinguished from the facts of the present case CS 1917/2016 33 wherein no relief of specific performance was sought by plaintiff. On other hand, the defendants no.1, 3 and 4 had executed a sale deed dated 01.03.2011 Ex.D4W1/1 being aware about the execution of sale deed dated 07.02.2011 between defendant no.1 and plaintiff as well as part payment of sale consideration by plaintiff.
54 Further, in the case titled the Jasmer Singh and Ors. Vs. Kanwaljit Singh and another (supra), the Hon'ble Punjab and Haryana High Court held that in a suit for permanent injunction, the court declined the relief sought for restraining vendor from alienation of suit property and the plaintiff has efficacious remedy by way of suit for specific performance. Again this ratio is also not applicable to the present suit. Since the present suit is mainly for the relief of the mandatory injunction whereby the defendant no.1 is required to perform his obligation to get the executed sale deed registered for which registration original token No.68 Ex.PW1/9 was also issued and to prevent breach of this obligation of seller who received material portion of the sale consideration. The decision of Hon'ble Allahabad High Court in case title Rajendar Kumar Vs. Mahendra Kumar Mittal and others (supra) is laid down more or less similar ratio of law which has been laid down in above decision of Hon'ble Punjab and Haryana High Court. For sake repetition, this ratio has no application to particular factual situation wherein the prayers of the suit are being contested by defendant no.3 and defendant no.4 who failed to prove any title to the suit property before this Court and the person who admittedly holder of the title was not interested to plaintiff's suit as framed.
RELIEF (ISSUE NO.5) CS 1917/2016 34 55 In view of the above discussions, the suit of the plaintiff is decreed in his favour and against the defendants in the following manner:-
(i) A decree of possession of Built up property bearing municipal no. 95/1, G.T. Road, Shahdara, Delhi-
110032, forming part of Khasra No. 1940/95/2 in the areas of village Chandrawali, admeasuring approx. 434 Sq. Yds. is passed in favour of the plaintiff and against the defendants.
(ii) A decree of mandatory injunction passed in favour of the plaintiff thereby defendant no.1 and 2 directed to get the sale deed dated 07.02.2011 registered with Sub Registrar IV-A, Nand Nagri, Delhi-110093 and further defendant no.5 i.e. Sub Registrar IV-A is directed to register the same. The plaintiff has to pay remaining amount of Rs.46,00,000/- to the defendant no.1. He has deposited a FD in name of this court for a sum of Rs.1,28,00,000/-. The plaintiff has merit in his case against the defendant no1. Remaining amount can be drawn from the said FD amount.
(iii) A decree of permanent injunction passed in favour of the plaintiff and against the defendant no.1 to 4 thereby defendant no. 1 to 4 are directed not to create any third party interest in the suit property in any manner whatsoever and also defendant no.5 directed not to release the Sale Deed executed and CS 1917/2016 35 registered on 01.03.2011.
(iv) A decree of declaration thereby declaring the sale deed dated 01.03.2011 executed by the defendant no.1 & 2 in favour of defendant no.4 which is not registered hence does not create any right in the favour of the defendant no.4 in regard to the suit property therefore the unregistered sale deed dated 01.03.2011 as null and void in favour of the plaintiff and against the defendants.
56 Parties shall bear their own costs. Decree-sheet be prepared accordingly.
57 File be consigned to record room only after due compliance, necessary action, as per Rules.
(Typed to the dictation directly, corrected and announced in open court on 30.03.2024).
(RAMESH KUMAR-II) ADDL. DISTRICT JUDGE-01 SHAHDARA DISTRICT KARKARDOOMA COURTS DELHI CS 1917/2016 36