Delhi District Court
Fur Kaur vs Vinod Kumar on 21 August, 2021
Bhupinder Singh v. Vinod Kumar
IN THE COURT OF HELLY FUR KAUR : CIVIL JUDGE - 08
(CENTRAL), ROOM NO.231, TIS HAZARI COURTS, DELHI
SUIT NO : 98054/16 (OLD NO.623/17)
In the matter of :
Bhupinder Singh (since deceased)
Through LRs
1. Smt. Surjeet Kaur
W/o Late Bhupinder Singh
R/o 308/11, Daya Basti,
Shahzada Bagh, Old Rohtak Road,
Delhi - 110 006.
2. Smt. Harjot Kaur
D/o Late Bhupinder Singh
W/o Sh. Baljeet Singh Punia,
R/o HS114, MS Block,
Hari Nagar, New Delhi - 110 064.
3. Sh. Arvinder Singh (since deceased)
Through LRs
(a) Paramjit Kaur Grewal
W/o Late Arvinder Singh
(b) Satpa Singh
S/o Late Bhupinder Singh
R/o 308/11, Daya Basti,
Shahzada Bagh, Old Rohtak Road,
Delhi.
Digitally
SUIT NO : 98054/16 (OLD NO.623/17) HELLY
signed by
HELLY Pg 1 of 63
FUR KAUR
FUR Date:
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Bhupinder Singh v. Vinod Kumar
4. Sh. Kanwaljeet Singh
S/o Late Bhupinder Singh
R/o 4100, The Woods, APT 207,
Sanjose LA California,
USA 95136.
5. Ms. Balvinder Kaur
D/o Late Bhupinder Singh
R/o 308/11, Daya Basti,
Shahzada Bagh, Old Rohtak Road,
Delhi. ...PLAINTIFFS
VERSUS
Vinod Kumar
S/o Late Amar Nath
R/o C25, Rose Apartments,
Sector14, Rohini,
Delhi - 110 085. ...DEFENDANT
Date of institution : 02.01.2007
Date of judgment : 21.08.2021
SUIT FOR DECLARATION WITH CONSEQUENTIAL RELIEF OF
PERMANENT INJUNCTION
JUDGMENT
1. Vide this judgment, I shall decide a suit for declaration with consequential relief of permanent injunction. BRIEF FACTS OF THE PLAINT (AMENDED PLAINT DATED 16.08.2012):
2. The brief facts of the plaint as alleged by the plaintiff which are Digitally SUIT NO : 98054/16 (OLD NO.623/17) HELLY signed by HELLY Pg 2 of 63 FUR KAUR FUR Date:
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necessary for the disposal of the suit are that the property bearing No.308/11, Daya Basti, Shahzada Bagh, Old Rohtak Road, Delhi (hereinafter be referred to as said property) was owned by one Sardar Lachhman Singh, S/o Late Karam Singh. Sh. Lachhman Singh was brotherinlaw of the plaintiff. Sh. Lachhman Singh purchased the said property in the year 1960. That since early 1950's the plaintiff and his elder brother Sh. Dilawar Singh was in occupation of the said property along with their other family members. In addition to the plaintiff, his elder brother and their family members, there were many other occupants also in the whole area purchased by Sh. Lachhman Singh.
The total area purchased by Sh. Lachhman Singh was 1279 sq. yards approximately. At the time when suit property was occupied by plaintiff and his elder brother Sh. Dilawar Singh, they were living jointly in the complete premises. However, in 1976, there was a separation of portions between them and consequently the front portion of the suit property was under occupation of Sh. Dilawar Singh and the rear portion came under occupation of plaintiff exclusively. The plaintiff on 14.07.1976 purchased the rear portion of the said Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 3 of 63 FUR Date:
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property which was in use and occupation of plaintiff from his brother inlaw Sh. Lachhman Singh for valuable consideration more specifically shown in red colour in the site plan Annexure A and (hereinafter be referred to as suit premises) and agreement to sell, receipt, general of power of attorney, Will were executed. Thereafter, the plaintiff continued to use and occupy the suit premises as owner without any interference from anybody including Sh. Lachhman Singh, his legal heirs or any body else and the suit premises remained in continuous, actual and physical possession of the plaintiff. Thereafter, upon execution of sale documents in favour of plaintiff as an absolute owner, plaintiff applied for an electricity meter connection in his name to be installed in the suit premises and accordingly the electricity meter was installed in the suit premises. The plaintiff has also been paying house tax of the suit premises to MCD for the last more than 20 years and several receipts were also issued in this regard dated 23.03.1989, 31.10.2004, 25.07.2005, 08.06.2006, 19.07.2007, 31.05.2008 and 08.05.2009 besides other receipts. The plaintiff during his lifetime, since the occupation of the Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 4 of 63 FUR Date:
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property i.e. prior and after execution of sale documents in his favour had been running and carrying out different business activities from the suit property and assessment orders dated 31.12.1962, 12.12.1963 and 14.12.1962 were issued by the Income Tax Officer A III District New Delhi with respect to Firm/business run by plaintiff. That after execution of sale documents in favour of plaintiff, Sh. Lachhman Singh had no right, title or interest in the suit premises. That to the utter shock of the plaintiff, the defendant filed an eviction petition under Section 14(1)(e) r/w Section 25 B of Delhi Rent Control Act claiming himself to be the owner of the suit premises in use and occupation of plaintiff. In the eviction petition, the defendant alleged himself to be the owner/ landlord of the property bearing No.308/11, Shahzad Bagh, Old Rohtak Road, Delhi, having purchased it from Sh. Lachhman Singh, S/o Sh. Karam Singh vide sale deed dated 21.11.1997 registered as document No.6322 in Addl. Book No.1, Vol. No.7651 at pages 59 to 165. The plaintiff is contesting the said eviction petition and has filed an application under Section 25 B(5) of Delhi Rent Control Act seeking leave to defend and relevant Digitally signed by HELLY HELLY FUR SUIT NO : 98054/16 (OLD NO.623/17) FUR KAUR Date:
Pg 5 of 63 KAUR 2021.08.21 16:42:54 +0530 Bhupinder Singh v. Vinod Kumar documents dated 14.07.1976 regarding sale/purchased have been filed along Receipt for an amount of Rs.10,000/ dated 14.07.1976 as complete sale consideration in full and final towards the suit premises disclosing therein that the suit premises had been purchased by the plaintiff from Sh. Lachhman Singh for valuable consideration and that the plaintiff is the owner and in possession of the suit premises. The said application for leave to defend was disposed of by the concerned Delhi Rent Control court vide order dated 09.10.2006 and has allowed the application of the plaintiff on the limited ground with regard to purpose of letting and availability of suitable alternative accommodation. It is the stand of the plaintiff that he is the owner since 14.07.1976 and in possession since 1950's of the suit premises shown in red colour in site plain. That till the filing of the eviction petition and subsequent thereto, the plaintiff had been using and enjoying the suit premises being owner in possession without any interference of any nature from any corner for a period of more than 30 years to the knowledge of everybody including Lachhman Singh as well as the defendant. Even otherwise, the plaintiff has become Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 6 of 63 FUR Date:
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owner of the suit premises by adverse possession. That the defendant claimed in the eviction petition that he had purchased the suit property vide sale deed on 21.111997 but even during the period from 21.11.1997 till the eviction petition was filed, there was no interference from the side of defendant also in any manner for the period of eight years to the exclusive use and occupation of the suit premises by the plaintiff. The defendant even after the execution of the alleged sale deed in the year 1997, has not taken any steps to transfer or mutate to suit property in his favour till date. That the sale deed dated 21.11.1997 with respect to suit premises already sold to the plaintiff by Sardar Lachhman Singh could not have been executed by Sardar Lachhman Singh as he had already sold the suit premises to the plaintiff and had also received full and final consideration of Rs.10,000/ way back on 14.07.1976. The possession also cold not be handed over to the defendant by Sardar Lachhman Singh as the possession remained throughout with the plaintiff. That even otherwise, Sardar Lachhman Singh was not a sound disposing mind during the period when the alleged sale deed dated 21.11.1997 was Digitally signed by HELLY HELLY SUIT NO : 98054/16 (OLD NO.623/17) FUR FUR KAUR Pg 7 of 63 Date:
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executed by him in favour of the defendant as he has suffered the brain stroke, paralytic stroke and various other ailments some time before the said period and he remained under the effects of those ailments for a long time. That the defendant otherwise is threatening the plaintiff to dispossess him from the suit premises without due process of law. The defendant is also threatening to sell the suit premises and/or to create third party interest in the suit premises.
That the sale deed dated 21.11.1997 executed by Sardar Lachhman Singh in favour of the defendant is nonest, illegal, void and is liable to be cancelled. Plaintiff seeks following reliefs:
(a) Pass a decree of declaration declaring that the plaintiff is the owner of the rear portion of the suit property bearing No.308/11, Daya Basti, Shahzada Bagh, Old Rohtak Road, Delhi.
(b) Pass a decree of declaration thereby declaring the sale deed dated 21.111997 registered as document No.6322 in Addl. Book No.1, Volume No.7651 at pages 59 to 65 in the office of Subregistrar as null and void and cancelled to the extent of the conveyance, right, interest and title with respect to the rear portion of the suit property bearing No.308/11, Daya Basti, Shahzada Bagh, Old Rohtak Road, Delhi in possession of the plaintiff.
(c) Pass a decree of permanent injunction in favour of the plaintiff and against the defendant for not interfering with the peaceful possession of the suit premises of the plaintiff and also to the effect that the defendant shall not sell or create any third party interest in Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 8 of 63 FUR Date:
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the suit premises.
(d) Award cost of the suit in favour of the plaintiff and against the defendant.
AMENDED WRITTEN STATEMENT OF DEFENDANT:
3. The defendant filed his written statement and has controverted the allegations leveled by the plaintiff to contest the suit. It is contended by the defendant that present suit has been filed as a counter blast to the eviction petition filed by the defendant against the plaintiff which is pending in the court of Sh. Sanjiv Kumar Aggarwal, Ld. Rent Controller, Delhi. The notice of the eviction petition under Section 14 (1)(e) read with Section 25B of The Delhi Rent Control Act was issued to the plaintiff. The limited leave was granted to the plaintiff in that petition for eviction and only on the ground of purpose of letting and the availability of suitable alternative accommodation, leave was granted, otherwise not on any other ground. That the plaintiff has filed this suit on the basis of false averment made in the plaint that the plaintiff had purchased the property from his brotherinlaw, Sh.
Lachhman Singh for valuable consideration and the documents in the Digitally signed by HELLY HELLY SUIT NO : 98054/16 (OLD NO.623/17) FUR FUR KAUR Date: Pg 9 of 63 KAUR 2021.08.21 16:43:24 +0530 Bhupinder Singh v. Vinod Kumar form of agreement to sell, receipt, general power of attorney and will were executed in his favour. The plaintiff never purchased the property from Sh. Lachhman Singh at any point of time and the said document are forged and fabricated documents. No amount of consideration was ever paid by the plaintiff to Sh. Lachhman Singh. Even the plaintiff could have filed this suit for specific performance of contract on the basis of alleged forged and fabricated document but no suit for declaration and injunction is maintainable. The suit of the plaintiff is hopelessly barred by time. Sale deed in favour of the defendant had been executed on 21.11.1997, particulars of which have been given above, present suit has been filed in 2006 after a lapse of 9 years from the execution of the sale deed in favour of defendant. The suit, therefore is not maintainable and is hopelessly barred by time and the same merits dismissal. That the suit has not been property valued for the purpose of court fee and jurisdiction. The plaintiff has mentioned in the valuation clause that the suit being valued at Rs.200/ when the plaintiff is required to pay advolerum court fee on the suit property. That the value of the property is more Digitally SUIT NO : 98054/16 (OLD NO.623/17) HELLY signed by HELLY Pg 10 of 63 FUR KAUR FUR Date:
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than Rs.20 Lakh. The suit, therefore, is not maintainable before this Hon'ble Court. That there is no cause of action to file the suit by the plaintiff against the defendant. The plaintiff has no right to file a separate suit for declaration and injunction. The suit is liable to be stayed under Section 10 of CPC in view of the pendency of the earlier petition for eviction filed by the defendant against the plaintiff which is pending in the court of Sh. Puneet Pahwa, Ld. Rent Controller, Delhi. That mere installation of electricity connection or payment of house tax or the assessment of house tax in the name of a person does not confer ownership on that person.
4. In reply to merits, it is stated that the property bearing No.308/11, Daya Basti, Shahzad Bagh, Old Rohtak Road, Delhi being owned by one Sardar Lachhman Singh, S/o Late Karam Singh and Sh. Lachhman Singh was the brotherinlaw of the plaintiff is not denied. In reply to para No.2 of the plaint, it is stated by the defendant that the said property having been purchased by Sh. Lachhman Singh in the year 1960 is a matter of record. The contents of para 3 of the plaint are denied being wrong. The premises were let out to the plaintiff by Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 11 of 63 FUR Date:
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the defendant. Para No.4 of the plaint is also denied being wrong. The allegation that in addition to the plaintiff and his elder brother and their family members, there were many other occupants also in the whole area purchased by Sh. Lachhman Singh is a false and baseless plea. In reply to para No.5 of the plaint, it is stated that the total area which was purchased by Sh. Lachhman Singh was measure 1279 sq. yards approximately is a matter of record. Para No.6 of the plaint is also denied being wrong. The allegation that when the suit property was occupied by the plaintiff and his brother, Sh. Dilawar Singh they were living jointly in the complete premises but thereafter, in 1976 there was a separation of portions between the plaintiff and his brother as a consequence thereof, the front portion of the suit property was occupied by the brother of the plaintiff, Sh. Dilawar Singh and the rear portion fell to the exclusive use and occupation of the plaintiff is a false and baseless plea. When plaintiff is not the owner of the suit property, there is no question of partition between the plaintiff and his brother. Para No.7 of the plaint is also denied as wrong. It is stated that plaintiff never purchased the suit Digitally signed by HELLY HELLY SUIT NO : 98054/16 (OLD NO.623/17) FUR FUR KAUR Date:
Pg 12 of 63 KAUR 2021.08.21 16:43:47 +0530 Bhupinder Singh v. Vinod Kumar property from Sh. Lachhman Singh at any point of time and the said documents are forged and fabricated documents. That the allegation that after the execution of the sale documents and on the plaintiff becoming the absolute owner of the suit premises, the plaintiff had applied for the electricity meter connection in his name to be installed at the suit premises and the electricity meter was installed in the name of the plaintiff at the suit premises and the documents regarding the installation of electricity meter in the name of the plaintiff as well as electricity bills issued by then DESU to the plaintiff are baseless allegation and not relevant for the decision of the case. That the allegation that the plaintiff as owner and in self occupation, had also been paying the house tax of the suit premises to MCD for the past more than 20 years and the house tax receipts in the name of the plaintiff dated 23.03.1989, 31.10.2004, 25.07.2005, 08.06.2006, 19.07.2007, 31.05.2008 and 08.05.2009 besides other receipts are baseless allegation and not relevant for the decision of the case. That the allegation that the plaintiff while in the occupation of the suit premises, before the execution of its sale documents in his favour and Digitally SUIT NO : 98054/16 (OLD NO.623/17) HELLY signed by HELLY Pg 13 of 63 FUR KAUR FUR Date:
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during his life time has also been running and carrying on his different business activities from the suit premises and copy of the assessment orders dated 31.12.1962, 12.12.1963 and 14.12.1962 issued by the Income Tax Officer, AIII, District New Delhi regarding the Firm/ business run by the plaintiff are baseless allegation and not relevant for the decision of the case. The allegation that after the execution of the aforesaid documents, Sh. Lachhman Singh was left with no right, title or interest in the suit premises sold to the plaintiff is a false and baseless plea. The defendant is the owner of the property and th defendant purchased the property from Sh. Lachhman Singh, S/o Sh.
Karam Singh vide the registered sale deed dated 21.11.1997 as mentioned above and the premises were let out to the present plaintiff for residential purposes only. The allegation that till the date of filing of the eviction petition and subsequent thereto, the plaintiff had been using and enjoying the said suit premises being owner in possession, without any interference of any nature from any corner for a period of more than 3 years is a false and baseless plea. The premises were let out to the plaintiff for residential purposes only and the plaintiff is Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 14 of 63 FUR Date:
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not the owner of the premises. The defendant is the owner of the premises and he purchased the property from Sh. Lachhman Singh. The allegation that the defendant claimed in the eviction petition that he had purchased the suit property vide sale deed on 21.11.1997 but even during the period commencing from 21.11.1997 till the eviction petition was filled, there was no interference from the side of the defendant also in any manner for the period of eight years to the exclusive use and occupation of the suit premises by the plaintiff is a false and baseless plea. The allegation that the defendant, even after the execution of the alleged sale deed in the year 1997, has not taken any steps to transfer or mutate to the suit property in his favour till date is a false and baseless plea. The allegation that the sale deed dated 21.11.1997 with respect to the suit premises already sold to the plaintiff and that Sardar Lachhman Singh as he had already sold the suit premises to the plaintiff and had also received the full and final consideration of Rs.10,000/ way back on 14.07.1976 is a false and baseless plea. The allegation that the possession also could not have been handed over to the defendant by Sardar Lachhman Singh as the Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 15 of 63 FUR Date:
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possession remained through out with the plaintiff is a false and baseless plea. The plaintiff never purchased the property from Sardar Lachhman Singh at any point of time. The allegation that the defendant otherwise is threatening the plaintiff to dispossess him from the suit premises without due process of law is wrong. No such threat was ever been extended by the defendant to the plaintiff. However, as already mentioned above, the defendant has filed the petition for eviction against the plaintiff on the ground of Section 14 (1)(e) r/w Section 25B of Delhi Rent Control Act which is pending in the court. The allegation that the sale deed dated 21.11.1997 executed by Sardar Lachhman Singh in favour of the defendant is nonest, illegal void and is liable to be canceled is a false and baseless plea. Finally, in the written statement defendant has completely denied the cause of action alleged by the plaintiff while reiterating his contentions in the former part of the written statement. Further, while concluding it has been averred that this Hon'ble Court has no jurisdiction to try and decide the matter as the value of the suit property is more than Rs.20 Lakh. Hence, it is prayed that the suit of the plaintiff is a false and Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY Pg 16 of 63 FUR KAUR FUR Date:
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frivolous and is not maintainable in the eyes of law and be ordered to be dismissed with costs.
REPLICATION:
5. Plaintiff filed replication to the written statement of the defendant denying the case of the defendant; reiterating and reaffirming the case as set up by the plaintiffs in the plaint. It is specifically denied that the suit is hopelessly barred by time as alleged. It is specifically denied that the suit is not maintainable and merits dismissal as alleged. It is submitted that the factum of alleged sale deed dated 21.11.1997 allegedly executed by Sardar Lachhman Singh in favour of the defendant had come to the knowledge of the plaintiff only when notice in the eviction petition was received by the plaintiff in the year 2005. It is submitted that the plaintiff has properly valued the relief sought in the present suit and accordingly fixed court fee has been paid. It is specifically denied that the plaintiff is required to pay advolerum court fee on the suit property as alleged. It is specifically denied that the suit is not maintainable and merits dismissal as alleged. It is submitted that the plaintiff is in actual and physical Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY Pg 17 of 63 FUR KAUR FUR Date:
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possession of the suit property. It is specifically denied that the question whether the plaintiff has purchased the property is already in issue before Rent Controller as alleged. It is further submitted that the proceedings in the eviction petition are regarding alleged bonafide requirement of suit property by the defendant, therefore, in the said eviction proceedings, no issue relating to ownership and title of the suit property can be said to be pending as the same is exclusively required to be decided by civil court separately. It is specifically denied that the defendant had purchased the property from Sh. Lachhman Singh vide sale deed dated 21.11.1997 or that the suit premises was let out to the plaintiff for residential purpose only muchless as alleged or otherwise. It is further submitted that it is a matter of record that the plaintiff was granted leave to defend in the eviction petition only on the ground of purpose of letting and availability of suitable alternative accommodation but thereafter, the said order was challenged before Hon'ble High Court of Delhi which has further allowed the plaintiff to raise the plea under Section 53A of Transfer of Property Act, claiming that the possession of the suit Digitally SUIT NO : 98054/16 (OLD NO.623/17) Pg 18 of 63 signed by HELLY HELLY FUR KAUR FUR Date:
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property has been handed over to the plaintiff by S. Lachhman Singh in part performance of the contract/ sale documents. Later on the said plea as allowed by Hon'ble High Court of Delhi had been inserted in the amended written statement. It is specifically denied that the premises was let out to the plaintiff for residential purposes only and the plaintiff is not the owner of the property as alleged. It is further specifically denied that the premises is required by the defendant for his own residence and the defendant is not in occupation of reasonably suitable residential accommodation muchless as alleged or otherwise. That para 16A of the plaint has not been replied by the defendant in the written statement and, therefore, the same is deemed to have been admitted under the law. In para 17 of the written statement, the averments made in para 16A of the plaint, has been replied but the averments made in para 17 of the plaint has not been replied or denied and therefore, the avermens made in para 17 of the plaint are deemed to be admitted as per law. Para No.17 of the written statement is totally denied beig wrong and incorrect and the para 16A of the plaint is reiterated and reaffirmed.
Digitally
signed by
SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY
FUR KAUR Pg 19 of 63
FUR Date:
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ISSUES:
6. From the pleadings of the parties, vide order dated 31.08.2009, following issues were framed for trial:
1. Whether the plaintiff is entitled to relief of declaration that plaintiff is the owner of rear portion of suit property bearing 308/11, Daya Basti, Shahzada Bagh, Old Rohtak Road, Delhi? OPP.
2. Whether the plaintiff is entitled to relief of declaration that the sale deed dated 21.11.1997 registered in SR office is null and void? OPP.
3. Whether the plaintiff is entitled to relief of permanent injunction restraining defendant from interfering in peaceful possession of suit premises and restraining defendant from creating third party interest in the suit premises? OPP.
4. Whether the suit of plaintiff is within limitation? OPP.
5. Whether the suit has been properly valued and proper court fee has been affixed? OPP.
6. Whether the suit is liable to be stayed under Section 10 CPC? OPD.
Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 20 of 63 FUR Date:
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7. Whether the suit has been filed as a counter blast to the eviction petition filed by defendant against plaintiff? OPD.
PLAINTIFF'S EVIDENCE:
7. In order to prove his case, following witnesses were examined by the plaintiff:
1. PW1 Sh. Bhupinder Singh is plaintiff himself whose examination in chief is by way of Ex.PW1/A. He relied on following documents:
1. Ex.PW1/1 site plan.
2. Ex.PW1/2 agreement to sell dated 14.07.1976.
3. Ex.PW1/3 General power of attorney dated 14.07.1976.
4. Ex.PW1/4 Receipt dated 14.07.1976.
5. Ex.PW1/5 Will dated 14.07.1976.
6. Ex.PW1/6 (colly.) receipts of DESU.
7. Ex.PW1/7 (colly.) electricity bills ranging from the year 1978 till 2009.
8. Ex.PW1/8 (colly.) house tax receipts issued by House Tax Department, MCD.
Digitally SUIT NO : 98054/16 (OLD NO.623/17) HELLY signed by HELLY Pg 21 of 63 FUR KAUR FUR Date:
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9. Ex.PW1/9 (colly.) assessment orders issued by Income Tax Officer.
Plaintiff was partly cross examined on 24.02.2012 and his further cross examination was deferred. However, plaintiff could not be further cross examined due to his demise. After the death of plaintiff/PW1 Bhupinder Singh, Ms. Balvinder Kaur was examined as PW1.
2. PW1 Ms. Balvinder Kaur, D/o of Late Bhupinder Singh tendered her evidence by way of affidavit Ex.PW1/A. She relied on following documents:
1. Ex.PW1/1 (OSR) agreement to sell dated 14.07.1976.
2. Ex.PW1/2 (OSR) General power of attorney dated 14.07.1976.
3. Ex.PW1/3 (OSR) Will dated 14.07.1976.
4. Ex.PW1/4 (OSR) Receipt dated 14.07.1976.
5. Ex.PW1/5 site plan.
6. Ex.PW1/6 (colly.) electricity bills and documents regarding installation of electricity meter by DESU.
7. Ex.PW1/7 (OSR) (colly.) (containing 7 pages) house tax Digitally SUIT NO : 98054/16 (OLD NO.623/17) HELLY signed by HELLY Pg 22 of 63 FUR KAUR FUR Date:
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receipts in the name of plaintiff.
8. Ex.PW1/8 (OSR) (colly.) containing 3 pages assessment orders and notice issued by Income Tax Officer regarding the Firm/business run by plaintiff.
PW1 Ms. Balvinder Kaur was duly cross examined and discharged.
3. PW2 Sh. Krishan, ASO, SP Zone, House Tax Department, Behind Sadar Thana brought the original file of property bearing No.308/11, Daya Basti, Shehzadabad, Old Rohtak Road, Delhi - 110035. He deposed that photocopy of the said file is already exhibited as Ex.PW2/1 which has already been mentioned in the statement of PW2 recorded by the Local Commissioner and also that the summoned record is not available in the original file brought by him. Accordingly, examination in chief was deferred. PW2 was recalled for further examination in chief on 07.12.2017. He brought the original assessment file of the property No.308/11, Daya Basti, Shahzad Bagh, Old Rohtak Road, Delhi - 110 035. Photocopy of the summoned record was placed on record him Digitally SUIT NO : 98054/16 (OLD NO.623/17) HELLY signed by HELLY Pg 23 of 63 FUR KAUR FUR Date:
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which was exhibited as Ex.PW2/1 (colly.) containing 34 pages (objected to). He did not bring the house tax receipt and further examination in chief was deferred.
PW2 was again recalled for further examination in chief on 01.03.2018. He brought the original record as summoned and certified copy of letter dated 31.01.2011 issued from NDMC - Karol Bagh Zone was exhibited as Ex.PW2/2 (OSR) (objected to). Certified copy of MCD House Tax Online receipt G8 No.360906 dated 08.06.2009 in the name of Sh. Bhupinder Singh was exhibited as Ex.PW2/3 (objected to). Certified copy of House Tax receipt No.537031 for the year 200708 in the name of Bhupinder Singh was exhibited as Ex.PW2/4 (OSR) (objected to).
4. PW3 Sh. Bhagirath, Record Keeper from Income Tax Department is again a summoned witness who deposed that the summoned record is very old record and has been weeded out after 10 years, as per the system.
5. PW4 Sh. Dharmendra Kumar, SO Accounts, Commercial SUIT NO : 98054/16 (OLD NO.623/17) Digitally signed by Pg 24 of 63 HELLY HELLY FUR KAUR FUR Date:
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Department, District Shakti Nagar, Nagia Park, TPDDL is also a summoned witness. He had brought the summoned record i.e. attested copy of the bill dated 01.06.2011 to 25.03.2018 in the name of Bhupinder Singh Grewal CA No.60001524929 in respect to K. No.35300557568 in the premises bearing No.308/11, landmark Shahzada Bagh, New Delhi - 110 035, same was exhibited as Ex.PW4/1 (colly.) (total 66 bills) (objected to by the counsel for defendant as to the mode of proof and filling of these documents at this stage). He had also brought certificate under Section 65B of Evidence Act with respect to the aforesaid bills which are computer generated. Same was exhibited as Ex.PW4/2. (objected to by the counsel for defendant as to the mode of proof and filling of these documents at this stage). He also brought attested copy of complete summary of the bills of the K.No.35300557568 from the period 20.03.2003 till 20.11.2017. Same was exhibited as Ex.PW4/3 (colly.) (total 15 pages) (objected to by the counsel for defendant as to the mode of proof and filling of these documents at this stage). He also Digitally SUIT NO : 98054/16 (OLD NO.623/17) HELLY signed by HELLY FUR Pg 25 of 63 KAUR FUR Date:
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brought the attested copy of the complete file of the K.No. 35300557568 in the name of Sh. Bhupinder Singh which was exhibited as Ex.PW4/4 (colly.) (total 17 pages) (objected to by the counsel for defendant as to the mode of proof and filling of these documents at this stage).
6. PW5 Sh. Deepak Jain is again a summoned witness who is handwriting and finger print expert. He exhibited his original report consisting of 15 photographs and five documents as Ex.PW5/1 (colly.).
PW5 was duly cross examined and discharged. DEFENDANT'S EVIDENCE:
8. On the other hand, defendant to prove his version examined following witnesses:
1. DW1 Sh. Praveen Kumar Rana, UDC from the office of Sub RegistrarI, Kashmiri Gate is a summoned witness. He brought the original sale deed dated 21.11.1997 executed by Sardar Lachhman Singh in favour of Sh. Vinod Kumar registered vide registration No.6322, additional book no.1, volume No.7651 on Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 26 of 63 FUR Date:
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pages 59 to 65 dated 21.11.1997. The certified copy was seen and compared by him and he deposed that same is correct copy of the original brought by him which was exhibited as Ex.DW1/1. He further deposed that certified copy Ex.DW1/1 had been issued by his department.
2. DW2 is defendant whose examination in chief was by way of two affidavits which were exhibited as Ex.DW1/A and Ex.DW1/B. He relied on document already exhibited as Ex.DW1/1 which is certified copy of sale deed dated 21.11.1997. He further relied upon the certified copy of the statement of Sh. Sukhpal Singh recorded in 457/14 (Old No.E531/09), the original of the same has been brought by Sh. Sandeep Rana, Asstt. Ahlmad of the court of Sh. Puneet Pahwa, Ld. ARC, Delhi.
3. DW3 Sh. Balwan Singh, Handwriting Expert, tendered his evidence by way of affidavit Ex.DW3/A. He relied on following documents:
1. Ex.DW3/1 (OSR) photocopy of Diploma Certificate.
2. Ex.DW3/2 (colly.) enlarged photographs of admitted signature Digitally signed by HELLY HELLY SUIT NO : 98054/16 (OLD NO.623/17) FUR FUR KAUR Date:
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3. Ex.DW3/3 enlarged photographs of disputed signatures of Sh.
Lachhman Singh from Q1 to Q7.
4. Ex.DW3/4 are seven transparencies.
5. Ex.DW3/5 detailed report.
6. Ex.DW3/6 certificate under Section 65B of Indian Evidence Act.
7. Ex.DW3/7 compact disk containing photographs taken by him of A1 to A8 and Q1 to Q7.
He was duly cross examined and discharged.
9. I have heard the arguments addressed by both sides. Written arguments were also filed by plaintiff as well as defendant. The defendant has relied upon certain citations i.e. AIR 1967 SC 742 AIR 2017 Raj. 167 2014 DRJ 140 1981 LAW SUIT (Del.) 154, Rajesh v. M/s. Pienne, Kedar Nath Kohli v. Baldev Singh and 2017 LAW SUIT (Del.) 1509. By way of these citations defendant has emphasized that registered sale deed is necessary for the purpose of ownership.
10. Issuewise findings are as follows:
Digitally signed by HELLY HELLY FUR KAUR SUIT NO : 98054/16 (OLD NO.623/17) FUR Date: Pg 28 of 63 KAUR 2021.08.21 16:46:11 +0530 Bhupinder Singh v. Vinod Kumar
11. Issues No.4, 5 & 6 have already been decided as preliminary issues in favour of plaintiff vide order dated 24.02.2010. ISSUE NO.1 Whether the plaintiff is entitled to relief of declaration that plaintiff is the owner of rear portion of the suit property bearing number 308/11, Daya Basti, Shahzada Bagh, Old Rohtak Road, Delhi?
12. As per the plaint, the case of the plaintiff for the purposes of this issue is found to be two fold.
ON THE BASIS OF DOCUMENTS
13. Firstly, it has been averred that on 14.07.1976, plaintiff purchased rear portion of the suit property of which he was already in use and occupation, from his brotherinlaw Sh. Lachhman Singh for valuable consideration by way of execution of General Power of Attorney, Agreement to sell, Receipt, Will etc (these documents were exhibited initially during examination of PW1 Bhupinder Singh and were objected to on mode of proof by the defendant. However, it transpires that plaintiff was allowed to place on record the certified copies instead of originals vide orders dated 24.02.2012 and 07.10.2013. More so, these documents i.e. General Power of Attorney, Agreement to sell, Receipt and Will (Ex.PW SUIT NO : 98054/16 (OLD NO.623/17) Digitally Pg 29 of 63 signed by HELLY HELLY FUR KAUR FUR Date:
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1/1 to Ex.PW1/4) were again exhibited during examination of PW1 Balvinder Kaur and originals were seen and return. Accordingly, the objection on mode of proof, seems to be redundant.) Accordingly, at the very anvil, this calls for a legal discussion as to validity and operation of these documents. In Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana & Anr. 183 (2011) DLT 1 (SC), it was held:
"We reiterate that immovable property can be legally and lawfully transferred/ conveyed only by a registered deed of conveyance.
Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property."
14. In clear terms, it has been ruled by Hon'ble Supreme court that documents, other than a proper registered conveyance deed executed as per law, do not create any interest in any immovable property. It has also been directed that courts shall not treat Digitally signed by HELLY HELLY SUIT NO : 98054/16 (OLD NO.623/17) FUR FUR KAUR Date:
Pg 30 of 63 KAUR 2021.08.21 16:46:27 +0530 Bhupinder Singh v. Vinod Kumar SA/GPA/WILL transfers as concluded transfers. In the present set of facts, at the cost of repetition, it is stated that plaintiff has relied upon GPA, Agreement to sell, Affidavit, Receipt, Possession letter and Will.
It is also pertinent to note that none of them is registered. Therefore, plain reading of the excerpt from the judgment referred above conveys that plaintiff cannot claim title of ownership on the basis of these documents.
15. However, question that might bother here is whether the judgment in Suraj Lamp (supra) applies to such documents executed prior to 2011 i.e., passing of the judgment or not. Certain paras of the judgment are reproduced for this purpose:
Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that Digitally SUIT NO : 98054/16 (OLD NO.623/17) signed by Pg 31 of 63 HELLY HELLY FUR KAUR FUR Date:
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SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance.
It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.
18. We have merely drawn attention to and reiterated the wellsettled legal position that SA/GPA/WILL transactions are not `transfers' or Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 32 of 63 FUR Date:
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`sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale.
Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said `SA/GPA/ WILL transactions' may also be used to obtain specific performance or to defend possession under section 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to `SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision.
We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister SUIT NO : 98054/16 (OLD NO.623/17) Digitally signed by Pg 33 of 63 HELLY HELLY FUR KAUR FUR Date:
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or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding `SA/GPA/WILL transactions' are not intended to apply to such bonafide/ genuine transactions."
16. Certain portions of the above excerpt have been underlined to answer the selfraised question. It is very evident from these portions that Hon'ble Court only reiterated settled law and expressly carved out exceptions in which cases the GPA sale documents would not be affected and would continue to confer certain rights in contrast to others. The exceptions derived are:
Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 34 of 63 FUR Date:
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1. Regularization of leases/allotment by DDA.
2. If documents have already been acted upon by DDA or municipal authorities to effect mutation.
3. Genuine transactions involving sale agreements and power of attorneys which are also regulated by State laws.
17. As far as exceptions are concerned, plaintiff has brought on record certain documents pertaining to house tax Ex.PW2/3 and Ex.PW2/4 (OSR). The court is mindful of the fact that mere house tax receipts are not proof of mutation or ownership. It has been further corroborated by one of the official witnesses of the plaintiff himself i.e., PW2 who stated that whosoever comes to the department for payment of House tax, the department issues the receipt in his/her own name. Besides this, sifting of evidence brought in by plaintiff shows a different picture. Ex.PW2/1 which is a photocopy of original assessment file of the suit property was placed on record by PW2 ASO Department Property Tax, Sadar Paharganj Zone. Though the witness had also brought the original of the same, the judicial record does not reveal comparison of both. Still, I shall consider the Digitally SUIT NO : 98054/16 (OLD NO.623/17) signed by Pg 35 of 63 HELLY HELLY FUR KAUR FUR Date:
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photocopy as it is of significance. The document includes notices by the MCD to M/s Hind Engg works (Proprietor Lachhman Singh) in year 1961 and 1968 for objections on amendment of assessment which even mention M/s Hind Engg Works as assessee and occupier. It is worthwhile to note that even in 1991 a similar notice was issued to the same assessee by the department. Further, in 1994, the tax amount was amended a Notice on Page No.27 was issued which discloses M/s Hind Engg Works as the person primarily liable to property tax. Therefore, there is no cogent proof of mutation in favour of the plaintiff in the records rather the documents placed by plaintiffs lead to adverse inference. Nor there is anything on record related to any action by DDA on the basis of these documents.
18. Hence, it can be safely said that plaintiff's case is not covered by the first two exceptions mentioned above.
19. For the third exception, it is deemed fit to advert to relevant extracts from the judgment referred above throwing light on nature of each document executed in a GPA sale. Concerning the Power of Attorney and Agreement to sell, it was categorically held:
Digitally signed by HELLY HELLY FUR SUIT NO : 98054/16 (OLD NO.623/17) FUR KAUR Date:
Pg 36 of 63 KAUR 2021.08.21 16:47:11 +0530 Bhupinder Singh v. Vinod Kumar "A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the granter authorizes the grantee to do the acts specified therein, on behalf of granter, which when executed will be binding on the granter as if done by him...". Further that "It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee."
"Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter."
Digitally signed by HELLY HELLY SUIT NO : 98054/16 (OLD NO.623/17) FUR FUR KAUR Pg 37 of 63 Date:
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20. Reading of the above paras of the judgment clears the air that a power of attorney, even if irrevocable or, an agreement to sell cannot confer title on any person. At most, there can be a suit for specific performance on the basis of agreement to sell and also protection of possession under Section 53A of TPA,1882. An attorney holder can execute sale deed on behalf of principal but is not himself the owner on the strength of the power of attorney. Needless to say that the present suit is not the one of specific performance against the executant. In fact, it has come on record in testimony of PW1 Balvinder Kaur that no suit of specific performance was filed by her father or any of the LRs on the basis of these documents.
21. It would also be apposite to note the regulations in force in National Capital Territory of Delhi. After judgment in Suraj Lamp (supra), in 2012, a circular dated 27.04.2012 was issued by Govt. of NCT of Delhi which directed Subregistrars to not to register any conveyance relating immovable property on the basis of GPA, a Will, and agreement to sell. However, the same was set aside by Hon'ble High Court of Delhi in Pace Developers and Promoters Pvt Ltd. V. Govt. of Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY FUR HELLY FUR KAUR Pg 38 of 63 Date:
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NCT through its secretary W.P. (C) 4585/2012 while quoting Para 27 of the Judgment passed in Suraj Lamp (supra) which relates to the exceptions as stated above. Pursuant to the order of Hon'ble High Court of Delhi, another Circular F.No.1(92)/Regn.Br./Div.com/ HQ/2013/815 dated 22.07.2013 was issued which is still in force. Operative part of the same read as:
With reference to the judgment of the Hon'ble Supreme Court of India in SLP (C) No.13917 of 2009 titled Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana & Anr. and subsequent order dated 30.04.2013 of the Hon'ble Delhi High Court in the matter of Pace Developers and Promoters Pvt. Ltd. v. Govt. of NCT, WPC 4585/2012, and, in suppression of all earlier orders in the context, it is clarified as under:
1. There is nothing in the existing provisions of the law that prevents a registered property owner holding registered and valid deed of transfer like sale deed, gift deed, partition deed, relinquishment/release deed etc. from executing general power of attorney/special power of attorney in favour of their spouse, son, daughter, brother, sister or any other relative or person of his trust to manage his property or empowering him/them to execute any further deed of transfer including conveyance, sale, gift deed etc. on behalf of the registered owner.
2. However, immovable property can be legally and lawfully transferred only by a registered sale deed like sale, gift conveyance etc. Transaction i.e. execution of general power of attorney/special power of attorney/WILL etc., in respect of immovable property, do not convey any title, and, thus, are not legally recognized valid modes of transfer of immovable property as per the existing provisions of the law.
Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 39 of 63 FUR Date:
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3. A lease can be validly transferred only under a registered Assignment of Lease.
22. It can be deduced that the position remained the same that such documents cannot themselves convey or transfer ownership however, a power of attorney can be validly executed to genuinely empower another to execute sale agreements on behalf of principal or an agreement to sell can be executed as a precursor to a complete sale deed.
23. At this juncture, another dimension may also be considered. In Hardip Kaur v. Kailash 193(2012) DELHI LAW TIMES 16, Hon'ble High Court of Delhi had imparted higher pedestal to an Agreement to sell in case the same has been executed along with General Power of Attorney and other connected documents accompanied with payment of consideration. In the said judgment, it was held:
The agreement to sell of itself may not create any interest in the property under Section 54 of the Transfer of Property Act, 1882 but the agreement along with the payment of the entire sale consideration, handing over of the Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 40 of 63 FUR Date:
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possession, execution of the receipt, affidavit, will, indemnity bond and irrevocable General Power of Attorney create "an interest in the property"
within the meaning of Section 202 of the Contract Act.
24. It is notable that Section 202 of the Indian Contract Act, 1872 bars termination of agency to the prejudice of agent in case an interest has been created in favour of the agent unless there is an express contract to the contrary. However, in the above referred judgment, it was also held:
The purchaser would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the plaintiff. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof.
25. This judgment also does not deviate from the settled position of law qua requisite documents for ownership and merely refers to better Digitally signed by HELLY HELLY FUR KAUR SUIT NO : 98054/16 (OLD NO.623/17) FUR Date: Pg 41 of 63 KAUR 2021.08.21 16:47:49 +0530 Bhupinder Singh v. Vinod Kumar rights and entitlement to the possession in certain cases.
26. By and large, by now it is intelligible that the documents relied upon by the plaintiff have per se no legal force for the purpose of ownership. It would not be out of place to mention that a court is bound by settled principles of law and also to apply any law in the backdrop of its object and purpose. The ill effects of the GPA sales have been categorically laid down in the beacon judgment of Suraj Lamp (supra). The courts are no more oblivious to the fact that such practices intend to evade taxes, stamp duty and registration fee thereby causing revenue loss to the state. Moreover, these transactions encourage circulation of black money and corruption. It would be travesty of justice to let someone take benefit of something which is against the law and causes loss to the state. A person cannot be allowed to mislead a court of law and claim ownership rights in the garb of incomplete transactions.
27. Having said this, what also crosses my mind is Section 23 of Indian Contract Act, 1872, according to which an agreement is void, if it would defeat the provisions of law. GPA sales might not strictly fall Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 42 of 63 FUR Date:
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under this category however when the object of the agreement is to obviate application of any legislation, certainly it cannot be a valid agreement which can be enforced as it is by a court of law.
28. Hence, the case of the plaintiff in the pleadings itself fails purely on the parameters of law and, justice in larger sense. Nonetheless, I may also point out the factual and evidentiary aspect in brief. It is worth noting that plaintiff has failed to examine any of the attesting witness to the documents. Further, in testimony of PW1 Bhupinder Singh, incoherence is noted regarding fact of consideration. It has been testified that money was arranged from bank however the witness changed the stand immediately. Notably, the witnesses could not stand the test of cross examination on the question of source of income for the purpose of consideration. PW Bhupinder Singh had referred to M/s. Laxmi Stone Crushing as his only business whereas PW Balvinder Kaur (daughter) referred to Sarbloh Laxmi Metals and both of them stated that no document pertaining to income tax return of relevant period has been brought on record. Besides, there are also contradictions about the sequence of execution and notarization.
Digitally signed by HELLY HELLY SUIT NO : 98054/16 (OLD NO.623/17) FUR FUR KAUR Date:
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29. As none of the documents relied upon by the plaintiff is registered and they have been disputed by the defendant in the written statement, therefore execution had to be proved specifically which the plaintiff has failed to do so. The court is mindful of Section 85 of Indian Evidence Act, which raises a presumption regarding execution of a power of attorney. However, it is in the fitness of circumstances to take note of essentials of Section 85 as held in Electric Construction & Equipment Company Ltd. V. Jagjit Electric works. It was held that twin requirement for application under Section 85 are: First, Power of attorney must be executed before a Notary Public and secondly, it must be authenticated by a Notary Public. Further it was held that the words are "executed before, and authenticated by" therefore both these conditions must be satisfied. In Citibank N.A. vs Juggilal Kamlapat Jute Mills Co AIR 1982 Delhi 487, it was observed that the authentication is not merely attestation but something more and that according to Law Lexicon by T. P. Mukherjee and K. K. Singh, authentication connotes an attestation made by an authorized officer by which he certifies that a record is in due form of law. In the present case, notably in the Digitally SUIT NO : 98054/16 (OLD NO.623/17) HELLY signed by HELLY Pg 44 of 63 FUR KAUR FUR Date:
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cross examination, PW1/ Plaintiff had deposed that he did not remember exact place where he met Sh. Lachhman and the witnesses and also that the documents were already signed when he reached. Further, at one place it was deposed that he himself got the documents attested from Notary and at another place it was mentioned that Sh. Lachhman had got the documents attested on the same day. In fact, it was also stated that notarization of documents Ex.PW1/2 to Ex.PW1/5 had already been done before his arrival. Apart from this, the seal and signatures of the notary are not clearly visible on Ex.PW1/2. Accordingly, in these circumstances raising a presumption under Section 85 of Indian Evidence Act would not be the right legal approach. In addition, what is also noticeable is the set of documents brought by PW4. During arguments, Ld counsel of the defendant brought to the notice of this court, the copy of complete file running into 17 pages brought by this witness. The last page of the same is apparently a rent receipt relating the suit property. Though the same is in Urdu, what is discernible is the name of the plaintiff and the period i.e., 01.10.77 to 31.10.77. Surprisingly, Ld. Counsel for Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 45 of 63 FUR Date:
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plaintiff did not attempt to controvert on this aspect during arguments. If not strictly legal, at least a logical conclusion can be drawn that this receipt was relied upon by the plaintiff to obtain electricity connection in the year 1977 which is the very succeeding year in which the plaintiff claims to have purchased the property. Apart from this, expert witness PW5 also could not inspire the confidence of the Court. During cross examination, Defendant side emphasized on the nature of the documents based upon which the expert prepared his report. It was stated by the witness in the cross as well as in his report that he compared the signatures on certified sale deed No.6322 dated 21.11.1997 with the original GPA, Will, Agreement to sell, original receipt dated 14.07.1976. However, it is noticeable that the report of the expert is dated 04.12.2017 whereas the certified copy of the sale deed was brought on record by the defendant with permission of court in 2019. The witness stated that due to appearance of stamps and seal of office of District and Sessions Judge on the copy of the sale deed, it seemed to him as a certified copy. Still, this would not be of help to the plaintiff as at the same time the witness also stated that he Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 46 of 63 FUR Date:
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never inspected court file for documents of the Plaintiff. Indeed, as per record, the originals of the documents of the plaintiff were released against certified during the trial but the same are on record presently though not clear as to when the same have been placed on record again. Therefore, it is not clear that where were the originals when the expert prepared his report.
30. Despite the above observations, I shall refer to another judgment of Hon'ble High Court to rule out any scope of injustice to the case of the plaintiff. In Ramesh Chand v. Suresh Chand, apart from what has been laid down in Hardip Kaur v. Kailash, another aspect was brought in by Hon'ble Delhi High Court though not digressing from the settled law. It was noted that as the testator/executant of documents had passed away, 'Will' which was part of the documents, came into operation which was capable of passing title de hors other documents.
31. In the present case, the executant/testator Sh. Lachhman has admittedly already died and Will was also a part of the documents relied upon by the plaintiff. Therefore, this aspect has to be examined. As per section 68 of Indian Evidence Act, 1872 and 63 of Indian Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 47 of 63 FUR Date:
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Succession Act, 1925, Will can be proved only by calling at least one attesting witness irrespective of registration (though in the present case it is not even registered). Sardar Balvant Singh and Sh. Partap Singh Chauhan are apparently the attesting witnesses shown on the Will Ex.PW1/3 (OSR) and none of them has been called as a witness. It is significant to note that PW1 Balvinder Kaur had stated in her testimony that Sardar Balvant Singh lives in Vishnu Garden and that she has no knowledge if Sh. Partap Singh Chauhan was alive meaning thereby that at least one witness was alive. Therefore, the Will has not been proved.
32. It would also be imprudent to ignore the fact that even the erstwhile ownership of Sh. Lachhman is not beyond cloud of doubt. PW 1/plaintiff Bhupinder Singh stated in crossexamination that he did not know on the basis of what kind of documents, Sh. Lachhman purchased the suit property and also that the documents of ownership were not handed over to the Plaintiff. More importantly, the documents brought on record by calling PW2 include Ex.PW2/1 (running into 34 pages) which is a photocopy of the assessment file of Digitally signed by HELLY HELLY SUIT NO : 98054/16 (OLD NO.623/17) FUR FUR KAUR Date:
Pg 48 of 63 KAUR 2021.08.21 16:48:36 +0530 Bhupinder Singh v. Vinod Kumar the suit property. It becomes indispensable to note that in 1961 and 1968, notices in name of the assessee and owner M/s. Hind Engg works (proprietor Lachhman Singh) have been issued by the MCD for objections on amendment in assessment rates. However, a form on Page 17 and 18 dated 01/04/70 shows name of the owner as Harbhajan Singh and occupier/tenant column shows Bhupinder Singh and Dilawar Singh. Page No.16 is notably a letter dated 09.03.1971 stating that previously Dilawar Singh was a tenant and now the property has been purchased by Harbhajan Singh father of Dilawar Singh which is occupied by Dilawar Singh and Harbhajan Singh. Also, an objection application in Hindi on Page 21 of this set of documents seems to have been filed by the plaintiff for Harbhajan Singh to MCD in the year 1971. Pursuant to that, there are assessment records in name of Sh. Harbhajan Singh. But it is quite strange to note that there is a notice of amendment of assessment list order under by MCD dated pertaining July 1994 which once again shows M/s Hind Engg works as the person primarily liable to pay property Tax. Therefore, the ownership of Sh. Lachhman is substantially under doubt. It is a Digitally signed by HELLY HELLY SUIT NO : 98054/16 (OLD NO.623/17) FUR FUR KAUR Date: Pg 49 of 63 KAUR 2021.08.21 16:48:44 +0530 Bhupinder Singh v. Vinod Kumar settled principle of law that a person cannot pass a title better than he himself has in the property. It is not being said that Sh. Lachhman was not the owner however the possibility cannot be ruled out.
33. Therefore, this aspect also does not come to the rescue of the plaintiff.
34. Accordingly, in the considered opinion of this court the plaintiff is not entitled to declaration of ownership on the basis of the documents relied upon for the abovementioned reasons. ADVERSE POSSESSION
35. Second dimension of plaintiff's case is that he has become owner on the basis of adverse possession. Before delving into the veracity of this claim, it is deemed fit to take note of the law that highlights the requisites of adverse possession.
36. In Krishnamurthy S. Setlur Dead By LRs vs O. V. Narasimha Setty & Ors on 23 February, 2007, it was held:
Section 27 of the Limitation Act, 1963 operates to extinguish the right to property of a person who does not sue for its possession within the time allowed by law. The right extinguished Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 50 of 63 FUR Date:
2021.08.21 KAUR 16:48:51 +0530 Bhupinder Singh v. Vinod Kumar is the right which the lawful owner has and against whom a claim for adverse possession is made, therefore, the plaintiff who makes a claim for adverse possession has to plead and prove the date on and from which he claims to be in exclusive, continuous and undisturbed possession. The question whether possession is adverse or not is often one of simple fact but it may also be a conclusion of law or a mixed question of law and fact. The facts found must be accepted, but the conclusion drawn from them, namely, ouster or adverse possession is a question of law and has to be considered by the court.
37. In Ravinder Kaur Grewal vs Manjit Kaur on 7 August, 2019, while relying upon number of previous judgments, Hon'ble Supreme court noted:
"Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the Digitally SUIT NO : 98054/16 (OLD NO.623/17) Pg 51 of 63 signed by HELLY HELLY FUR KAUR FUR Date:
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rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.
Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show
(a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
38. In the factual matrix of the present case, the plaintiff states to have become owner by way of GPA sale in the year 1976. Sh. Lachhman Singh was allegedly the owner prior to 1976 as per the plaint and there is no claim of hostility against Sh. Lachhman. Therefore, there was no adverse possession against the alleged real owner Sh. Lachhman rather his title had been acknowledged by execution of documents in favour of plaintiff. Moreover, Sh. Lachhman (since Digitally SUIT NO : 98054/16 (OLD NO.623/17) HELLY signed by HELLY Pg 52 of 63 FUR KAUR FUR Date:
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deceased) or his LRs were never made a party to the present. Hence, claim of adverse possession shall not be examined against him. As far as the present defendant is concerned, the averment of the plaintiff is that Sh. Lachhman had fraudulently sold the suit property to the defendant by way of a sale deed on 21.11.1997 which he could not do so legally as the same was already sold to the plaintiff. Indeed, in the crossexamination, DW2/Defendant has admitted that plaintiff was in possession of the property when the defendant purchased it in 1997 and also that he never got physical possession of the property. However, it is specifically averred in the plaint that to the utter shock of the plaintiff, the defendant filed an eviction petition under Section 14(1) (e) read with Section 25B of the Delhi Rent Control Act claiming himself to be the owner of the suit premises in use and occupation of the plaintiff. Perusal of record reveals that the petition was filed in the year 2005. On meticulous perusal of the plaint and replication, it is clear that prior to 2005, plaintiff had no knowledge about the alleged sale deed in favour of the defendant meaning thereby that, to his mind, he was the owner on the basis of the GPA Digitally signed by HELLY HELLY SUIT NO : 98054/16 (OLD NO.623/17) FUR FUR KAUR Pg 53 of 63 Date:
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Sale from 1976 till 2005, therefore no question of hostility or adverse possession could arise till 2005 at least. Even otherwise, the claim against defendant could commence only from 1997 and period between 1997 and 2005 does not exceed 12 years when the defendant took legal recourse against the plaintiff in the manner he deemed fit. Consequently, section 27 of Limitation Act 1963 is not applicable against the present defendant. The defendant even if taken as rightful owner for the purpose of adverse possession, cannot be said to have slept over his rights for whole of the statutory period. Accordingly, in the considered opinion of this court, the plaintiff has not been able to establish his case of adverse possession on the scale of the settled principles of law.
39. Hence, this issue is decided against the plaintiff and in favour of the defendant.
ISSUE NO.2 Whether the plaintiff is entitled to relief of declaration that the sale deed dated 21.11.1997 registered in SR office as null and void? OPP.
40. It would be banal to say that pleadings are the fulcrum of any suit.
Digitally
signed by
HELLY HELLY
SUIT NO : 98054/16 (OLD NO.623/17) FUR
FUR KAUR Pg 54 of 63
Date:
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Keeping this principle in mind, plaint is considered paramount for looking at the case set up by the plaintiff. In the plaint, it is averred that the alleged sale deed was executed by Sh. Lachhman despite having sold the suit property to the plaintiff in the year 1976. Therefore, the factum of execution of the sale deed is not disputed in the plaint though the same is challenged on the ground of non enforceability in the eyes of law. It is also fortified by the testimony of PW1 Balvinder Kaur during cross examination wherein she admitted that sardar Laxman singh executed the registered sale deed in favour of the defendant. At the same time, another ground of challenge is that Sh. Lachhman Singh was not of a sound disposing mind during the period when the alleged sale deed dated 21.11.1997 was executed as he had suffered brain stroke, paralytic stroke and various other ailments.
41. As far as first plea is concerned, the same has been dealt with under Issue No.1. Since the plaintiff has not been able to establish his ownership rights, the sale deed cannot be declared null and void on this ground. However, for a moment, irrevocable general power of Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 55 of 63 FUR Date:
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attorney in favour of plaintiff may be considered which could bar Sh. Lachhman (principal) from executing a sale deed on his own behalf. Even so, it would not come to the rescue of the plaintiff as the very execution of GPA, Agreement to sell etc has not been proved as noted under the previous issue.
42. It can also be not lost sight of that the alleged sale deed is a registered sale deed. It is a well settled law that there is a presumption that a registered document is validly executed. The presumption has to be rebutted by the person challenging it. Though, as already said, the execution has not been disputed nor there is a plea of fabrication, plaintiff had cross examined DW2/defendant on these lines. The witness was put a question regarding absence of his signatures on the sale deed and it was suggested that the sale deed is a sham, bogus, forged and fabricated document. However, the suggestions are not in the context of the pleadings of the plaintiff. Even otherwise, plaintiff examined an expert witness PW.. to establish that the signatures of the vendor on the sale deed are same as of the executant on the documents relied upon by the plaintiff Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 56 of 63 FUR Date:
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thereby admitting the signatures of Sh. Lachhman on the alleged sale deed. To the understanding of this court, mere absence of signatures of the purchaser cannot be the reason to declare a sale deed null and void. However, this observation shall in no way extend any authentication or validity to the sale deed otherwise as it is not the case where the defendant sought any declaration on the sale deed in his favour.
43. The second ground is the doubtful mental condition of Sh. Lachhman i.e., the vendor, during the period when sale deed was executed. At the outset, it is to be mentioned that plaintiff has not brought anything on record in support of the same. To the contrary, defendant brought on record the statement of Sh. Sukhpal Singh, S/o Sh. Lachhman Singh (statement was allowed to be brought on record vide order dated 13.02.2019) recorded in the other proceeding before the rent controller. It is mentioned in the statement that though his father had suffered a paralytic attack, his right arm was perfect. He also denied suggestion that his father was not in proper sense during the period when sale deed was executed. Therefore, onus was upon the plaintiff Digitally SUIT NO : 98054/16 (OLD NO.623/17) HELLY signed by HELLY Pg 57 of 63 FUR KAUR FUR Date:
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herein to prove his claim. Besides this, an important consideration is the provision under which the plaintiff is seeking the relief of declaration of sale deed as null and void. It goes without saying that plaintiff is not claiming under Sh. Lachhman singh as an LR or an assignee rather he is trying to set up his own title. Therefore, the declaration has been sought under Section 34 of Specific Relief Act, 1963 and not a cancellation Section 31 of Specific Relief Act. It has been categorically held in Deccan Paper Mills Co. Ltd. V. Regency Mahavir Properties that only a party to agreement or a person claiming through him can seek relief under section 31 of the Act. Meaning thereby, the plaintiff, being a stranger to contract, is not entitled to sue on the ground that the contract is voidable on the ground of undue influence or any other like ground. In fact, concept of privity of contract also kicks in here. Now, as far as Section 34 of the Act is concerned, what is quintessential is an existing legal right in the property and denial by the another. The provision nowhere authorizes a stranger to challenge a document executed by someone in favour of another on the ground that it was executed under some influence or Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 58 of 63 FUR Date:
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in unfit mental state. As already seen in Issue No.1 , plaintiff has not been able to prove his legal right. Therefore, this plea is also unfounded in terms of law.
44. It is a trite law that plaintiff has to stand on his own legs and cannot take advantage of weakness of defendant's case.
45. Hence, this issue is decided against the plaintiff and in favour of the defendant.
ISSUE NO.3 Whether the plaintiff is entitled to relief of permanent injunction restraining defendant from interfering in peaceful possession of suit premises and restraining defendant from creating third party interest in the suit premises? OPP.
46. Being dependent on question of title, latter part of this issue is directly related to the Issue no.1. Incontrovertibly, relief of injunction requires proof of legal obligation/right in favour of the plaintiff and its breach or apprehension of breach by the defendant. Since the plaintiff has not been able to prove his claim of ownership, he cannot be granted an equitable relief of injunction to restrain the defendant from creating third party interest in the suit property.
47. As far as injunction against interference in peaceful possession is Digitally SUIT NO : 98054/16 (OLD NO.623/17) HELLY signed by HELLY Pg 59 of 63 FUR KAUR FUR Date:
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concerned, possessory title has to be determined. Since the case of the plaintiff stands upon documents which include Agreement to sell, plaintiff can prima facie be said to have benefit of Section 53A of Transfer of Property Act. As the documents pertain to year 1976 (prior to 2001), mandatory requirement of registration does not apply on the present case. However, execution of the very agreement to sell has not been proved. In fact, the factum of consideration also seems to be under doubt as seen from the testimony of the plaintiff during cross examination. Even otherwise, the present suit is not against the alleged vendor, rather it is against the alleged subsequent purchaser. To maintain the plea of Section 53A against subsequent purchaser, it must be proved that he had notice of the agreement or the part performance. Though plaintiff has established that defendant had knowledge of the possession but it could not be established that he was aware of the agreement. Rather, it is the case of the defendant that plaintiff was his tenant as well as of the previous owner. At the cost of repetition, it is being stated that during arguments, Ld counsel of the defendant brought to the notice of this court, the copy of Digitally signed by HELLY HELLY FUR KAUR SUIT NO : 98054/16 (OLD NO.623/17) FUR Date: Pg 60 of 63 KAUR 2021.08.21 16:54:06 +0530 Bhupinder Singh v. Vinod Kumar complete file running into 17 pages brought by PW4 SO Accounts (commercial department) District Shakti Nagar, TPDDL. The last page of the same is apparently a rent receipt relating the suit property. Though the same is in Urdu, what is discernible is the name of the plaintiff and the period i.e., 1.10.77 to 31.10.77. Surprisingly, Ld. Counsel for plaintiff did not attempt to controvert on this aspect during arguments. If not strictly legal, at least a logical conclusion can be drawn that this receipt was relied upon by the plaintiff to obtain electricity connection in the year 1977 which is the very succeeding year in which the plaintiff claims to have purchased the property.
48. In view of the discussed facts, undoubtedly, the defendants cannot be restrained from dispossessing the plaintiffs in perpetuity. At the same time, it is also a settled law that no one can take law into his own hands. In fact, even the settled trespasser has a right to protect his possession. While saying this, I am strengthened by the ruling of Hon'ble Supreme court in Rame Gowda (D) By Lrs vs M. Varadappa Naidu (D) By Lrs. & Anr. Therefore, plaintiff can be given protection against dispossession without due process of law. Significant to note, Digitally signed by SUIT NO : 98054/16 (OLD NO.623/17) HELLY HELLY FUR KAUR Pg 61 of 63 FUR Date:
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it is an admitted position that the defendant had filed an eviction petition against the plaintiff which was allowed and is under challenge in Ld. Appellate Court. Therefore, the relief in effect might be redundant. Nevertheless, the defendants, their agents, assignees, representatives etc. are restrained from dispossessing the plaintiff without due process of law.
49. Hence, this issue is decided partly in favour of plaintiff and partly in favour of defendant.
ISSUE NO.7 Whether the suit has been filed as a counter blast to the eviction petition filed by defendant against plaintiff? OPD.
50. Defendant has not led any evidence in support of this claim. Since nothing has been brought on record to prove this fact, the defendant has failed to discharge the burden.
51. Hence, this issue is decided against the defendant and in favour of the plaintiff.
RELIEF
52. In view of the discussion hereinabove, the suit of the plaintiff is partly Digitally signed by HELLY HELLY FUR KAUR SUIT NO : 98054/16 (OLD NO.623/17) FUR Date: Pg 62 of 63 KAUR 2021.08.21 16:54:23 +0530 Bhupinder Singh v. Vinod Kumar decreed and the defendants, their agents, assignees, representatives etc. are hereby restrained from dispossessing the plaintiff from the suit property i.e. rear portion of property bearing No.308/11, Daya Basti, Shahzada Bagh, Old Rohtak Road, Delhi, more specifically shown in red colour in the site plan, without due process of law.
53. Decree sheet be prepared accordingly. No order as to costs.
Digitally
54. File be consigned to Record Room. HELLY signed by HELLY FUR KAUR FUR Date:
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Announced in the open court (HELLY FUR KAUR)
through video conferencing Civil Judge - 08 (Central)/Delhi
on 21.08.2021
SUIT NO : 98054/16 (OLD NO.623/17) Pg 63 of 63