Delhi District Court
Jai Chand Gaur vs Shri Sukhdev Singh S/O Shri Dewan Singh on 24 December, 2009
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IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL DISTRICT JUDGE -01 (WEST); DELHI
CS No.60/09 (old Suit no.1650/87)
Date of Institution: 09.09.2009
Arguments concluded on:23.12.2009.
Date of decision: 24.12.09
In the matter of:
Jai Chand Gaur
S/o Shri Ganpat Ram
R/o H.No.B-3, Mahavir Enclave,
Palam Dabri, Main Rod,
New Delhi-110045. .........Plaintiff
Versus
1. Shri Sukhdev Singh s/o Shri Dewan Singh,
2. Shri Surjan Singh s/o Jagat Singh,
3. Shri Dewan Singh s/o Jagat Singh, ( Since deceased
All residents of 2055, Gali No.161, Tri Nagar,Delhi-55.
4. Samey Singh
R/o Village & Pot Office, Palam, New Delhi. ....Defendants.
Suit for Specific Performance And/Or Damages and Injunction and
Declaration
JUDGMENT
On 1.8.1987, present suit came to be instituted before Hon'ble High 2 Court of Delhi having regard to valuation of the suit for the purposes of court fee and jurisdiction, which has been assessed at Rs.3,74,780/- in all.
Initially, the suit was filed against Sukhdev Singh s/o Dewan Singh, and Surjan Singh & Dewan Singh sons of Jaggar Singh. During pendency of the suit, name of defendant No.3 Dewan Singh came to be deleted, he having died.
Samay Singh was arrayed as defendant No.4 on an application filed by the plaintiff under Order 1 rule 10 CPC. At that time, amendment plaint was allowed to be filed.
Plaintiff filed suit for decree of specific performance, damages and permanent injunction in the manner as under:-
"(A) Decree the suit of the plaintiff against the defendants for specific performance and direct the defendant to execute the Sale deed in respect of the disputed land measuring 590 sq. yds(in two pieces jointly i.e. 300 sq. yds and 290 sq. yds) being part of khasra No.82/23 in the area of village Palam abadi known as Mahabir Enclafve, Palam Dabri, Main Road, New Delhli-45(herein referred to as the dispute land) after obtaining the necessary permission from the competent authorities if so required.
(B) If the defendants fail to execute the Sale deed and to obtain the necessary permission then to get the sale deed 3 executed by an officer appointed by this Hon'ble Court who will also obtain the necessary permissions from the appropriate competent authorities.
(C) If, and only if this Hon'ble Court comes to the conclusion that specific performance cannot be decreed then in the alternative to specific performance the plaintiff be granted a decree for damages to the tune of Rs.3,74,650/-.
(D) Grant injunction against the defendants restraining them from selling, transferring, alienating (except to the plaintiff) or in any manner encumbering the disputed land. (F) Grant costs of the suit."
As per averments made in the plaint, Sukhdev Singh and Surjan Singh, defendants initially arrayed as defendant No.1 & 2, through their General attorney Dewan Singh ( initially arrayed as defendant No.3 ) agreed to sell to him(plaintiff) the land in dispute measuring 590 sq. yds, forming part of khasra No.82/83 situated in the area of village Palam known as Mahadev Enclave, Palam, Dabri Main Road, New Delhi, vide agreement to sell dt.11.11.85, against total consideration of Rs.3,74,650/-.
Out of the total sale consideration, plaintiff is alleged to have paid to defendant No.1 & 2, sum of Rs.1,25,000/- on 11.11.85 against receipt executed by defendant No.3 on their behalf.
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As regards possession of the land in dispute, case of plaintiff is that it was to be delivered to the plaintiff at the time of registration of the sale deed. As agreed, no objection certificate was to be obtained from concerned Tehsildar. Clearance certificate was also to be obtained from Income tax authorities. Defendant No.1 & 2 undertook to obtain requisite permission from the competent authorities by 15.9.1986.
It was further agreed that in case defendants failed to obtain permission, the plaintiff was at liberty to get necessary permission from the concerned authorities, but at the expenses of the defendants. In this regard, defendants were to sign requisite forms on or before 15.9.1987.
Case of the plaintiff is that because of considerable increase in the price, the defendants became dishonest. They started avoiding completion of sale transaction. Despite repeated requests by him, they even did not obtain requisite permission or sign requisite forms for the purposes of necessary permission from the competent authorities. Ultimately, legal notice dt. 23.7.1987 was sent to the defendants, in addition to telegrahic notice, calling upon them to sign the necessary papers so that plaintiff could obtain necessary permission. Thereafter on 27.7.1987, plaintiff contacted the defendants, but they out- rightly refused to sign the papers. Hence, this suit for specific performance and in the alternative for 5 damages, as indicated above.
As regards decree of permanent injunction, plaintiff has alleged that the defendants were making attempts to transfer the land in dispute.
Defendant No.4 Samey Singh came to be arrayed on the averments of the plaintiff that defendants No.1 to 3 had threatened on 16.8.1986 to execute sale deed in his favour(defendant No.4) and also to various other persons. By way of amended plaint, plaintiff Claimed following reliefs:
"(A) Decree the suit of the plaintiff against the defendants for specific performance and direct the defendants no.1 to 3 to execute the Sale deed in respect of the disputed land measuring 590 sq. yds(in two pieces jointly i.e. 300 sq. yds and 290 sq. yds) being part of khasra No.82/83 in the area of village Palam abadi known as Mahabir Enclave, Palam Dabri, Main Road, New Delhli-45(herein referred to as the disputed land) after obtaining the necessary permission from the competent authorities if so required. (B) If the defendants 1 to 3 fail to execute the Sale deed and to obtain the necessary permission then to get the sale deed executed by an officer appointed by this Hon'ble Court who will also obtain the necessary permissions from the appropriate competent authorities.
(C) If, and only if this Hon'ble Court comes to the conclusion that specific performance cannot be decreed 6 then in the alternative to specific performance the plaintiff be granted a decree for damages to the tune of Rs.3,74,650/- or such other greater sum as may be found due.
(D) Grant injunction against the defendants restraining them from selling, transferring, alienating (except to the plaintiff) or in any manner encumbering the disputed land. (E) Grant a Declaration that the so-called documents dt.16.08.1986 executed in favour of the defendant no.4 by the defendants 1 to 3 are illegal, void, manipulated, inoperative and unenforceable and are subject to the rights created in favour of the plaintiff under the documents dt.
11.11.85 being the Agreement to Sell etc., executed in his favour which documents will have precedence over the alleged documents in favour Samey Singh or anyone else. It be further declared that the plaintiff is entitled to possession of the disputed land from the defendants or anyone else.
(F) Grant costs of the suit."
2. Version of defendants No.1 to 3 In their joint written statement, defendants No.1 to 3 namely Sukhdev Singh, Sarjan Singh and Diwan Singh admitted to have entered into agreement to sell dt. 11.11.1985 with the plaintiff for the aforesaid sale 7 consideration. They also admitted having received Rs.1,25,000/- out of total sale consideration. They further admitted to have agreed to deliver possession of the land in dispute to the plaintiff at the time of registration of sale deed.
Defendants admitted to have agreed to have obtain necessary permission from competent authorities and in case of their failure to have agreed to sign requisite forms so as to enable the plaintiff to obtain necessary permission at their expenses.
Plea put forth by the defendants is that they asked the plaintiff for money, but he did not pay the same. They have denied to have refused to complete the sale transaction. According to them, they have always being willing to complete the sale transaction. Defendants further admitted receipt of legal notice from the plaintiff.
According to the defendants, when the plaintiff did not pay the balance amount, they sold the plot to Samey Singh(defendant No.4) vide document dt.16.8.1986 and also delivered possession of the land. As further pleaded by these defendants, they had informed Samey Silngh(defendant No.4) about the agreement to sell entered into with the plaintiff.
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3. Version of defendant No.4 Defendant No.4 has admitted factum of ownership of defendant No.1 & 2 in respect of the land in dispute, but further pleaded that it is a built up property.
As regards agreement to sell dt. 11.11.85, answering defendant has alleged that the same is false and fabricated document prepared in the plaintiff in collusion with defendant No.1 to 3. He has also denied factum of any payment by the plaintiff to defendants no.1 to 3 and that possession of the land in dispute was to be delivered to the plaintiff.
As regards his having purchased the land in dispute, the answering defendant pleaded that on 18.7.1986, defendant no.1 & 2 entered into an agreement to sell him their plots measuring 300 sq. yds and 290 sq. yds, both adjoining; that Surjan Singh agreed to sell his plot for Rs.95000/- whereas Sukhdev Singh agreed to sell the plot of Rs.1,10,000/-; that they received the sale consideration before the Sub Registrar and executed receipts in respect thereof on 18.7.1986. Both of them also delivered actual physical possession of the plots to him (answering defendant). 9
Case of the answering defendant is that factum of delivery of possession and sale transaction was within the knowledge of the plaintiff w.e.f. 18.7.1986.
As regards construction over the said plots, case of the answering defendant is that immediately on taking possession thereof, he started bringing building material and conducting other exercise like levelling of the land, clearing and developing thereof, but the plaintiff never raised any finger against any such exercise.
Case of answering defendant further is that the plaintiff filed this collusive suit for specific performance on or about 10.8.87 and that too only against defendant No.1 & 3 and also sought ex-parte injunction order regarding the land in question, but the same was not granted. Answering defendant has also referred to subsequent proceedings conducted in the suit, when only defendants No.1 to 3 were in attendance.
Case of the answering defendant is that on the basis of documents executed by defendants in his favour coupled with the factum of delivery of possession and raising of construction by him he is a bonafide transferee in respect of the land in dispute for consideration and without prior notice.
On the aforesaid grounds, answering defendant has prayed for dismissal of the suit with special cost.
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4. Replication to the written statement of defendant No.4 Plaintiff filed replication to the written statement of the defendant no.4, controverting the pleas put forth therein and reiterating the version set out in the plaint. Plaintiff alleged that the documents relied on by defendant No.4 are fabricated and manipulated documents. He has denied having any knowledge of the said transaction between the defendants.
As regards construction over the land, the plaintiff denied the plea of defendant no.4 that he started doing any overt act on taking possession or that he started developing land to his knowledge. Plaintiff has further denied that answering defendant is bonafide transferee and without prior notice.
Case of the plaintiff is that defendant No.4 had prior notice of the agreement to sell executed in his favour but even then he entered into agreement to sell with defendant No.1 to 3. Plaintiff has further denied application of doctrine part performance or doctrine of estoppel in favour of defendant No.4.
5. Points for consideration From pleadings of the parties, following issues were framed on 11 4.12.1989:
(1) Whether defendants 1 & 2 did not enter into an agreement dt.11.11.85 with the plaintiff and whether the same is subsisting?
It may be mentioned here that vide order dt.13.2.2002, on application filed by defendant no.4, issue was 1 was recast as under:-
(1) Whether the defendants 1 & 2 had executed and agreement of sale in favour of plaintiff in respect of the suit property on 11.11.85? (2) If issue no.1 is proved, what were the terms?OPP (3) Whether defendants 1 & 2 committed breach of the aforesaid agreement to sell? If so, its effect?OPP (4) Whether the plaintiff was ready and willing to perform his part of the contract?OPP (5) Whether defendants 1 & 2 entered into an agreement to sell the plots of land in suit with defendant No.4 on 18.7.86. If so, what were the terms?OPD-4 (6) Whether the plaintiff is estopped from filing the suit on account of his conduct as alleged in para 8 of the written statement of defendant No.4?OPD-4 (7) Whether the suit is collusive?OPD-4 (8) Whether there was part performance of the agreement dt.18.7.86 between defendants no.1 & 2 and defendant no.4? If so, its effect?OPD-4 (9) Of the two agreements dt.11.11.85 and 18.7.86, which one is to 12 prevail? Onus on parties.
(10) Whether the plaintiff is entitled to specific performance of the agreement to sell?
(11) To what amount of damages, if any, is the plaintiff entitled and from whom?OPP (12) Relief.
6. Evidence In order to prove his case, plaintiff examined PW1 Narain Dass. Jai Chand Gaur(plaintiff) appeared as PW2 and tendered into evidence his affidavit Ex.A2 and documents Ex.PW2/1 to 4.(objected to on the mode of proof).
PW3 Shri Brahm Parkash tendered into evidence his affidavit Ex.A3. PW4 Dr. S. Mohan tendered into evidence his affidavit Ex.A4. On the other hand, Defendant No.1 Sukhdev Singh appeared as D1W1 and tendered into evidence his affidavit Ex. RZ-1.
Defendant No.2 appeared in the court as D2W1 and tendered into evidence his affidavit Ex.R-1.
Defendant No.4 Samey Singh step into witness box as D4W1 and tendered into evidence his affidavit Ex.R-4.
137. Issue No.1 & 2
Learned counsel for plaintiff has submitted that from the evidence led by plaintiff coupled with agreement to sell Ex.PW2/1 and receipt Ex.PW2/2 and also admission by defendant No.1 to 3 in their written statement, it stands established that defendant No.1& 2 through their attorney, entered into agreement to sell on 11.11.85 and received a sum of Rs.1,25,000/- out of total sale consideration.
On the other hand, Ld.counsel for defendant no.4 has contended that in agreement Ex.PW2/1, there is mention of general power of attorney dt.15.3.85 executed by defendant No.1 & 2 in favour of defendant No.3 and also that General Power of attorney was attested by Notary Public. ld.counsel further submitted that no such General Power of Attorney has been produced on record and in absence thereof, it cannot be said that defendant No.1 to 3 were ever appointed Shri Dewan Singh(defendant No.3) as their attorney or authorized him to enter into any agreement to sell in respect of their suit land measuring 590 sq.yds in favour of plaintiff or that any such amount of Rs.1,25,000/- was paid by them.
In order to prove this issue, plaintiff Sh.Jai Chand Gaur has stepped into witness box as own witness and tendered into evidence his affidavit 14 Ex.P2. He has testified about execution of agreement to sell dt.11.11.85(Ex.PW2/1) executed by Dewan Singh(defendant no.3) as General Attorney of defendant No.1 & 2 Shri Sukhdev Singh and Shri Surjan Singh in respect of suit land measuring 590 sq.yds. He has further testified that out of the total sale consideration of Rs.3,64,750/-, he paid sum of Rs.1,25,000/- on 11.11.85 itself to defendant No.3 Shri Diwan Singh, who received the same on behalf of defendant No.1 & 2, vide receipt Ex.PW2/2.
It is also in his affidavit that possession of the land in dispute was agreed to be delivered at the time of registration of the sale deed. As regards necessary permission to be obtained from competent authorities, plaintiff has further testified that defendant No.1 to 3 undertook to obtain the same prior to 15.9.1986. According to him, it was further agreed that in case defendant no.1 to 3 failed to obtain permission from the deponent, he(plaintiff) had option to get necessary permission on or before 15.9.87, but in this eventuality, defendant no.1 to 3 were to bear the expenses. In this regard, defendant No.1 to 3 were also to sign and verify requisite application form.
As noticed above, in their joint written statement, defendant no.1 to 3 have admitted that defendant no.1 & 2, as owners of the land in dispute, 15 agreed to sell the same to the plaintiff, through their general attorney- defendant No.3 Shri Dewan Singh vide agreement to sell dt.11.11.85 for a sum of Rs.3,74,650/-, out of which they received a sum of Rs.1,25,000/- vide receipt dt. 11.11.85 executed on their behalf by their attorney- defendant no.3 and further that as agreed possession of the disputed land was to be delivered to the plaintiff at the time of registration of the sale deed. They further admitted in the written statement that necessary permission from competent authorities including no objection certificate from Tehsildar and income tax clearance certificate were to be obtained by them prior to 15.9.1986 and in case of their failure to do so, plaintiff was to get necessary permission at their expenses, but ,in this eventuality, they were to sign requisite forms on or before 15.9.1987.
Agreement to sell dt 11.11.85 is Ex.PW2/1. Receipt is Ex.PW2/2. On the basis of admission by defendants 1 to 3, execution of both these documents stand duly proved. Even from other evidence, these stand proved to have been executed by defendant No.3 on behalf of defendants 1 and 2 in favour of the plaintiff.
Ld. counsel for defendant no.4 has contended that as per case of the plaintiff, the agreement to sell dt.11.11.85 was executed in his favour by defendant no.3 Shri Diwan Singh as General Attorney of defendant No.1 & 16 2, but on record no such power of attorney has been filed or proved.
Ld. counsel further submits that power of attorney if any executed by defendant no.1 & 2 in favour of defendant No.3, required compulsory registration under section 17(b) of Registration Act and that in absence of evidence of any such registration of the power of attorney, it can safely be said that defendant no.1 & 2 had not authorized him(defendant no.3) to enter into agreement to sell on their behalf of the plaintiff.
As regards execution of agreement dt.11.11.1985, ld.counsel for defendant no.4 has submitted that these documents were never executed on the given date and that the plaintiff manipulated and created false evidence in this regard just to file collusive suit in connivance with defendant No.1 to 3.
Ld.counsel for defendant No.4 submits that the agreement dt.11.11.85 is void ab-initio and further that the same was compulsory registrable under section 17(b) of Registration Act. Ld.counsel further submits that since this agreement has not been registered, no reliance can be placed.
Ld.counsel further submitted that in the given circumstances that there cannot be said to any privity of contract between plaintiff and defendant no.1 & 2.
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8. Execution of agreement dt.11.11.1985 A perusal of Ex.P2/1 would reveal that this is an agreement between defendant No.3 Shri Diwan Singh as General attorney of Sukhdev Singh and Surjan Singh, (defendant No.1 & 2- first party) and Jai Chand, plaintiff(the second party). The agreement is in respect of sale of plot of land measuring 590 sq. yds forming part of khasra No.82/23 situated in the area of village Palam i.e. suit land. It was agreed to be sold for total sale consideration of Rs.3,64,750/-. As per contents of this document, first party received a sum of Rs.1,25,000/-out of the total sale consideration by way of advance money against receipt and the balance amount was agreed to be paid at the time of registration of the sale deed. First party agreed to deliver physical and vacant possession of the plot to the second party at the time of registration of the sale deed.
The document bears signatures of defendant no.3 Shri Diwan Singh and that of the plaintiff as second party. This document purports to bear signatures of two attesting witnesses Dr. S.Mohan and Shri Brahm Parkash.
9. Receipt Ex.PW2/2
Plaintiff has also proved on record Ex.P2/2 i.e. receipt regarding 18 payment of Rs.1.25 lacs. It is dt.11.11.85. It bears signatures of Shri Diwan Singh, defendant no.3 on the revenue stamp. Dr. S.Mohan and Brahm Parkash referred to above signed this receipt as attesting witnesses. As per this receipt, a sum of Rs.1.25 lacs was received by Shri Diwan Singh from Jai Chand Gaur, out of the total sum of Rs.364750/- i.e. sale price of plot measuring 590 sq. yds. forming part of khasra No.82/83 situated in the area of village Palam.
Number of the plot does not find mention in this receipt. However, in view of the contents of Ex.PW2/1 non mentioning of number or description of the plot in this receipt does not adversely affect the case of plaintiff. This document also purports to bear signatures of two attesting witnesses Dr. S.Mohan and Shri Brahm Parkash.
Plaintiff has examined aforesaid Shri Brahm Parkash as PW3 and Dr. S.Mohan PW4.
PW3 has testified in his affidavit Ex.A3 that on 10.11.85 plaintiff, one of his friends, asked him to spare some time as he wanted to purchase a plot measuring 590 sq. yds in Mahavir Enclave and payment was to be made on 11.11.85. He further testified that accompanied by the plaintiff and Dr. S.Mohan, who is family Doctor of the plaintiff, they went to the house of Diwan Singh in the area of Tri Nagar where Diwan Singh was 19 found present. Contents of the agreement were explained to Diwan Singh and he signed the same at point B on the agreement and at point A on the receipt.
As regards his own signatures, the witness testified that the agreement bears his signatures at point D whereas receipt bears his signatures at point C. In his cross examination, the witness denied that agreement and receipt do not bear signatures of Diwan Singh. It is in his cross examination that he did not know Diwan Singh. But the witness explained that the said person was introduced as Diwan Singh by the plaintiff.
It is in the cross examination of PW1 that agreement Ex.P2/1 was the one already prepared, but it was read out in his presence. He clarified that the agreement was not written in his presence. According to him, payment was made in his presence. Further, according to him, agreement was brought by Jai Chand, plaintiff. The witness displayed ignorance as to in which capacity Diwan Singh signed receipt Ex.P2/2, but the same does not adversely affect the case of plaintiff when defendants No.1 and 2 have admitted the act done by defendant No.3 on their behalf.
PW4 Dr. S.Mohan, the other attesting witness, has testified in his affidavit Ex.A4 in line with the statement made by PW3 Shri Brahm 20 Parkash, to the receipt regarding execution of agreement Ex.P2/1 and receipt Ex.P2/2 and also about payment of Rs.1.25 lacs by way of advance.
In his cross examination PW4 stated that he did not know Diwan Singh prior to 11.11.85. The witness recollected Diwan Singh having told him that he had some kind of document like power of attorney or registry. He admitted to have not signed any power of attorney or registry. The witness stuck to his version given in the affidavit that before putting his signatures Diwan Singh has receipt a sum of Rs.1,25,000/-. He denied the suggestion put forth by learned counsel for defendant no.4 that he was deposing falsely in order to accommodate the plaintiff, his friend.
From the evidence led by the plaintiff, execution of agreement to sell E.PW2/1 and receipt Ex.P2/2 and payment of Rs.1.25 lacs out of the total sale consideration of Rs.3,64,750/- stands duly proved. it also stands established that vide this agreement, plot of land measuring 590 sq. yds i.e. suit property situated in the area of village Palam was agreed to be sold to the plaintiff.
The contention of the Ld.counsel for defendant no.4 is that in the agreement Ex.P2/1, there is reference of General power of attorney dt.15.3.1985 executed in favour of Diwan Singh by Sukhdev Singh and 21 Surjan Singh and also that power of attorney was got attested from Notary public,, but on record no such power of attorney has been filed and in absence thereof it cannot be said that Diwan Singh was so authorized by defendant No.1 & 2 to execute any such agreement to sell or to receive any sum by way of advance from the plaintiff on their behalf.
It is true that in Ex.P2/1, it finds specifically mentioned that General Power of Attorney dt.15.3.1985 was executed by defendant No.1 & 2 in favour of defendant No.3 and the same was got attested from Notary Public. it is true that no such General Power of attorney dt.15.3.1985 has been placed on record.
It was for defendant No.1 to 3 to produce on record General Power of attorney so stated to have been executed in favour of defendant no.3. They could lead evidence that such Power of attorney was got attested from Notary Public.
However, neither any such General Power of attorney has been produced on record nor any evidence has been led in respect of its attestation by the Notary Public.
But this fact does not adversely affect case of plaintiff or that of defendants 1 to 3, when these defendants have categorically admitted the factum of execution of agreement(Ex.P2/1) and receipt Ex.P2/2 in favour of 22 the plaintiff through their General Attorney Shri Diwan Singh (defendant No.3). In view to this admission by defendant No.1 & 3, in the written statement, it cannot be said that Shri Diwan Singh was never authorized by defendant No.1 & 2 to enter into agreement to sell Ex.P2/1 in respect of the suit land. As a result, it cannot be said that the agreement to sell is void and unenforceable. Under Sec.17 of Registration Act, simply an agreement to sell is not required to be registered and as such, it cannot be said that no reliance can be placed on this agreement to sell for want of registration. In this regard, learned counsel for plaintiff has rightly referred to decision in M.L. Aggarwal Vs. Oriental Bank of Commerce & Ors. 128 (2006) DLT 407 (DB); and Rambaran Prosad Vs. Ram Mohit Hazra & Ors. (1967) 1 Supreme Court Reports 294.
From the evidence discussed, it stands established that defendant no.1 & 2, through their Attorney-defendant No.3, vide agreement to sell Ex.P2/1 agreed to sell the suit land to the plaintiff for a total consideration of Rs.3,64,750/- received a sum of Rs.1,25,000/- by way of earnest money vide receipt Ex.P2/2 and agreed to deliver possession and execute sale deed in favour of the plaintiff on receipt of balance sale consideration. All other terms as contained in agreement Ex.PW2/1 also stand duly 23 established on record and this court comes to the conclusion that plaintiff and defendants no.1 & 2 through their attorney-defendant no.3, agreed to abide by the same.
Both these issues are disposed of accordingly.
10. Issue No.3 & 4 Plaintiff has testified that defendant no.1 to 3 undertook to obtain permission from competent authorities i.e. from Tehsildar and Income Tax Authorities prior to 15.9.1986 and further agreed that in case they failed to obtain permission from the competent authorities, he (plaintiff) shall be at liberty to obtain permission or or before 15.9.87 at their expenses(expenses of defendant no.1 to3).
Plaintiff has further testified that defendant no.1 to 3 were bound to sign requisite forms/application in this regard, but they failed to obtain Income Tax clearance certificate as well as no objection certificate from Tehsildar prior to 15.9.1986.
It is case of the plaintiff that defendant no.1 to 3 became dishonest and as a result they avoided to complete sale transaction in terms of agreement to sell despite his repeated requests, whereupon he sent legal notice dt.23.7.1987 Ex.P2/3. In addition thereto, he also sent notice to 24 defendant No.3 telegraphically to do the needful. Copy of the telegram is Ex.P2/4. On 27.7.1987 he contacted defendant No.1 to 3, but they outrightly refused to sign the papers.
Ex.P2/3 is the legal notice dt.23.7.1987 sent by plaintiff through his Advocate Shri H.R.Khurana, to all the three defendants i.e. defendant no.1 to 3 calling upon them to obtain no objection/clearance certificate to execute sale deed and get the same registered.
Defendant No.1 & 2 have admitted receipt of legal notice dt.23.7.87 as well as notice sent telegraphically.
They have also nowhere specifically denied the allegation that on 27.7.1987, they refused to sign papers for no objection certificate/clearance.
However, in view of cogent and convincing evidence led by the plaintiff the plea put forth by defendant no.1 to 3 in their written statement, that they did not take any further step because the plaintiff did not pay balance sale consideration or that is why they sold the suit land to Samey Singh i.e. defendant No.4 and also delivered him its possession to him does not stand established. Rather, it stands established that defendants no.1 & 2 committed breach of the agreement to sell Ex.PW2/1. 25
11. Readiness and willingness of the plaintiff to perform his part of agreement Plaintiff has examined PW1 Shri Narain Dass to prove documents Ex.P1 to P3 i.e. certified copies of receipts, in proof of the fact that he was having sufficient amount so as to pay the balance sale consideration and to perform part of his agreement.
A perusal of statement of PW1 recorded on 9.7.96 would reveal that witness was examined in part and his further examination in chief was deferred at the request of the plaintiff that the witness was also to be examined in respect of two other documents which he could not bring on that day. However, subsequently, neither PW1 nor any one in his place was examined. The fact remains that statement of PW1 remains incomplete and defendant No.4 having not been afforded an opportunity to cross examine him in respect of the documents, no reliance can be placed on the testimony of PW1.
Even other wise, plaintiff no-where alleged in his plaint that he was ready with the balance sale consideration. Plaintiff did not file any replication to the written statement of defendant No.1 & 2 refuting their plea that he did not pay the balance sale consideration, although they had asked for the same.
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From the terms and conditions contained in agreement, Ex.P2/1, it stands proved that defendants No.1 & 2 through their attorney Diwan Singh agreed to obtain permission from competent authorities i.e. no objection certificate from Tehsildar and Income Tax clearance certificate from Income tax authorities prior to 15.9.1986. The sale transaction was to be completed by 15.9.1986, but in case of failure of defendant No.1 & 2 to get the requisite no objection certificate, the sale transaction was to be completed by 15.9.1987.
Case of defendants 1 to 3 that the plaintiff did not pay the money when they asked for it, does not stand established on record. They nowhere pleaded as to on which date they asked plaintiff for balance amount and when did he refuse to pay the same. Without any date, it cannot be said as to when did he so refuse to pay the balance sale consideration. But the fact remains that first of all, it was for defendants 1 to 3 to take steps for requisite permission from Tehsildar and Income Tax authorities. Only thereafter would have arisen the question of payment or refusal to pay the balance sale consideration. It is not case of defendants 1 to 3 that at any time, even prior to 15.9.1986, the plaintiff expressed them that he was not interested in completion of sale consideration or that he be paid the earnest money paid by him or that he was not to pay the balance 27 sale consideration.
In the given circumstances, when first of all, it was for defendant nol.1 & 2 to prove that they took steps for obtaining Income tax clearance and no objection certificate from Tehsildar and they have failed to prove the same, it stands established that defendant no.1 to 3 failed to perform their part of the agreement.
It is one of the terms and conditions of the agreement Ex.P2/1 that in case defendant No.1 to 3 backed out or failed to get necessary certificate for completion of sale transaction within the stipulated period, the second party-plaintiff shall be entitled to get the sale deed registered through the Court of Law at the costs and expenses of the first party. In this regard, plaintiff has proved on record notice dt.23.7.87 whereby he called upon the defendants No.1 to 3 to sign the requisite forms, but even then no step was taken by them to do the needful. Rather, in the meanwhile on 18.7.1986 defendants 1 and 2 agreed to sell the suit land to defendant No.4 and also delivered him its possession on the same day. In the given circumstances, even if the plaintiff has not been able to substantiate the averment that he was having sufficient money to perform his part of the contract, does not adversely affect his case.
From the above discussion, this court comes to conclusion that 28 plaintiff has fully established that defendant No.1 to 3 failed to get necessary no objection certificate from the competent authorities and they did not perform their part of the agreement.
Both these issues are disposed of accordingly.
12. Issue no.5 & 8 In the given circumstances, it is to be seen as to whether defendant No.4 entered into agreement to sell with defendant No.1 & 2 without any knowledge of the agreement to sell dt.11.11.1985 and as to whether he is bonafide purchaser.
13. Purchase of suit property by defendant No.4:-
As noticed above, case of defendant no.4 is that he purchased the suit land from defendant no.1 & 2 on 18.7.1986. According to defendant no.4, Shri Sukhdev Singh, defendant No.1 agreed to sell his plot for Rs.95000/- and Shri Surjan Singh agreed to sell his plot for Rs.1,10,000/-.
Both of them received the said amount before the Sub Registrar and executed receipts which were got registered on the same day. Further, they delivered him actual physical possession of their respective plots and sworn affidavit in this regard. Defendant no.4 has testified about all these facts in his affidavit Ex.R4. Further, according to him, the documents 29 executed in his favour on 18.7.1986 are Ex.DW1/1 to Ex.DW1/5.
Ex.PW2/D7 is its General Power of Attorney executed by Surjan Singh, defendant no.2 in favour of defendant no.4.
A perusal of Ex.PW2/D5 would reveal that this is an agreement to sell, land measuring 300 sq. yds, entered into by Shri Surjan Singh, defendant No.1 in favour of defendant no.4 Shri Samey Singh.
Ex.PW2/D6 is the affidavit of Surjan Singh-defendant no.2 wherein he testified on 18.07.86 that he had sold the aforesaid piece of land to defendant no.4, received entire sale consideration and also delivered its physical possession to him.
Ex.PW2/D7 is its General Power of Attorney executed by Sukhdev Singh, defendant no.1 in favour of defendant no.4; Ex.PW2/D8 is deed of agreement executed by Sukhdev Singh, defendant no.1 in favour of defendant no.4 in respect of sale of land measuring 290 sq. yds., part of Kh.No.82/23, situated in the area of village Palam, New Delhi, for a sum of Rs.95,000/-.
Ex.PW2/D9 is affidavit of Sukhdev Singh wherein he testified on 18.07.86 that he had sold the aforesaid piece of land to defendant no.4, received entire sale consideration and also delivered its physical 30 possession to him.
All these documents were got attested on 18.07.86 from Notary Public. Their execution has been admitted by defendants no.1 to 2. Even in their written statement filed to the plaint initially presented, defendants no.1 to 3 pleaded to have sold the suit land to defendant no.4 and also to have delivered its possession to him. It may be mentioned herein that in the written statement, defendants no.1 to 3 have not given correct date of execution of these documents and it appears to be an inadvertent error by the person whosoever mentioned the date as 16.08.86 in the space left blank in para-9 thereof.
From this evidence led by defendant no.4 and in view of admission by defendants no.1 to 3 in their joint written statement, as noticed above, it stands established that defendants no.1 & 2 entered into an agreement to sell the suit land i.e. 590 sq. yds., to defendant no.4 on 18.07.86, for a total sum of Rs.2,05,000/- and at the same time delivered possession thereof to defendant no.4.
Plaintiff has not disputed that defendants no.1 & 2 have delivered possession of the suit land to defendant no.4 in terms of the agreement Ex.PW2/D5 and Ex.PW2/D8. Therefore, it stands established that this is a case of part performance of the agreement dt.18.07.86, in terms of 31 provisions of Sec.53 A of Transfer of Property Act.
Both these issues are therefore decided in favour of defendant no.4.
14. Issues no.6 & 7 Learned counsel for defendant no.4 has submitted that in the present suit initially filed for specific performance and in the alternative for damages and injunction, defendant no.1 to 3 appeared before the court on 14.09.87 and sought time to file written statement, but on the next date, they submitted that the matter is likely to be settled out of the Court and ultimately they filed joint written statement on 27.10.1987.
Ld. counsel has further submitted that this time appears to have been utilized by the parties i.e. plaintiff and defendant No.1 to 3 in getting order of status quo in favour of the plaintiff, in respect of the suit land, although, in the written statement, they admitted to have sold the suit land to defendant no.4.
Ld. counsel further submits that defendants no.1 to 3 could inform the court on the very first day on 14.9.1987 that they had already parted with the land on 18.7.1986, but they did not so inform the court and that from all this an inference can safely be drawn that they were in collusion with the plaintiff in getting status quo order from the court. 32
Learned counsel for defendant no.4 has also submitted that since 18.07.86 plaintiff was within the know of the transaction between defendant no.4 and defendants no.1 & 2 and delivery of possession, as he resides quite close to the suit land but he never raised any finger against defendants no.1 & 2 or defendant no.4 and as such, he was estopped from filing the present suit.
Ld.counsel further submits that since construction on the suit land was being raised by defendant no.4 since May or June, 1987, the plaintiff had sufficient knowledge of defendant no.4 having purchased the suit land as such he could file a suit against defendant no.4 on the basis of alleged agreement dt.11.11.1985 in his favour, but he did not take any such step and all this goes to show that he manipulated the things, and as such, the suit filed by the plaintiff is liable to be dismissed.
As discussed under Issues no.1 & 2 above, defendants no.1 & 2, through their attorney - defendant no.3, executed agreement to sell and receipt Ex.PW2/2 in favour of the plaintiff in respect of the suit land on 11.11.85. Legal notice Ex.PW2/3 sent by the plaintiff to defendants no.1 to 3 is dt.23.07.87. Vide this notice plaintiff called upon defendants no.1 to 3 to obtain to apply for and obtain income tax clearance and no objection certificate etc. and to sign requisite papers so as to enable him to do the 33 needful in this regard for the purpose of execution of sale deed and its registration. Had the plaintiff been aware of the agreement to sell executed by defendants no.1 & 2 in favour of defendant no.4 or about delivery of possession of the suit land to defendant no.4, he would have issued notice stating all these facts therein and arrayed defendant no.4 as one of the defendants in the very beginning and not opted to file application U/O 1 Rule 10 CPC subsequently to array him as one of the defendants and also to amend the plaint. In the legal notice he would have also called upon the defendants no.1,2 & 4 for cancellation of any such deal with defendant no.4. However, the file reveals that the suit was initially filed only against defendants no.1 to 3 and it was subsequently that he had to file application to array Samey Singh as defendant no.4.
In the given facts and circumstances, it cannot be said that plaintiff is estopped from filing the present suit or that he filed the present suit in collusion with defendants no.1 to 3.
Both these issues therefore decided against defendant no.4.
15. Issue no.9 While deciding issue no.8 above, this court has opined that this is a case of part performance, as provided under Sec.53 A of Transfer of 34 Property Act, so far as the documents executed by defendant no.1 & 2 in favour of defendant no.4 are concerned, as defendant no.4 has paid the entire sale consideration to defendants no.1 & 2, the latter have delivered him the possession of the suit land and only sale deed remains to be executed/got registered by defendants no.1 & 2 in favour of defendant no.4.
Learned counsel for defendants no.1 & 2 has submitted that defendants no.1 & 2 executed agreement to sell dt.18.07.86 in favour of defendant no.4 and also delivered him possession of the suit land, because plaintiff refused to pay the balance sale consideration, and as such, plaintiff is not entitled to decree of specific performance or for recovery of any amount by way damages.
According to defendant no.4, on being put into vacant possession of the land, he took steps for leveling of the land, got prepared construction plan and in May, 1987 he dug up foundation for walls etc procured building material and started actual work of construction of 40 shops to raise a mini market.
Further, it is in the affidavit of defendant No.4 that plaintiff knew fully well that the land in suit was of sale, but he avoided to purchase it on 35 account of fear that construction would not be sanctioned by the authorities. However, on seeing that he(defendant no.4) had put up part construction and the same had neither been stopped nor demolished, he entered into conspiracy with defendant No.1 & 2 forged false documents i.e. agreement to sell and receipt dt.11.11.1985 and thereafter instituted this false suit. According to defendant No.4, he is bonafide purchaser on payment of consideration without notice of any prior agreement to sell.
From the evidence available on record it cannot be said that defendant no.4 was aware of execution of agreement to sell by defendants no.1 & 2, through their attorney- defendant no.3 in favour of plaintiff on 11.11.85 or about execution of receipt of the same date. There is nothing in the evidence to suggest that either defendants no.1 & 2 or the plaintiff ever apprised defendant no.4 of the execution of the documents Ex.PW2/1 and Ex.PW2/2 in favour of the plaintiff. In the given facts and circumstances, it can safely be said that defendant no.4 is a bonafide purchaser of the suit land for consideration, without any prior notice.
In the given situation the agreement dt.18.07.86 is to prevail. This issue is therefore disposed of accordingly.
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16. Issue no.10 Under issue no.1 & 2 above, it has been decided that defendants no.1 & 2 entered into agreement dt.11.11.85 to sell the suit land to the plaintiff, on receipt of Rs.1,25,000/- by way of earnest money, out of the total sale consideration of sum of Rs.3,64,750/-. Under issue no.3, it has been held that defendants no.1 & 2 committed breach of the said agreement. Since under issue no.9, it has been held that the agreement dt.18.07.86 executed by defendants no.1 & 2 in favour of defendant no.4 is to prevail upon the agreement dt.11.11.85, because of part performance of the agreement dt.18.07.86 with delivery of possession of the suit land to defendant no.4, plaintiff is held not entitled to specific performance of the agreement dt.11.11.85.
Even otherwise, perusal of record would reveal that plaintiff has not claimed decree of possession. Initially, suit was filed for decree of specific performance and/or for damages as well as permanent injunction. In the amended plaint filed after addition of Samey Singh as defendant no.4, plaintiff did not specifically claim decree for possession. Clause E of the prayer clause as available in the amended plaint, reproduced above, would reveal that by claiming decree of declaration in respect of the agreement 37 executed in favour of defendant no.4, the plaintiff, in the same clause claimed further declaration to the effect that he is entitled to possession of the suit land. Plaintiff was required to specifically claim decree of possession.
Ld. counsel for defendant no.4 has submitted that the moment the plaintiff came to know of execution of the sale deed in favour of defendant no.4 by defendants no.1 & 2 on 18.7.1986, he could withdraw the suit, already filed only for decree for specific performance, damages and injunction and filed a suit for possession. Ld.counsel submits that in this case, plaintiff did not seek decree of possession and rather he opted to file an application under order 1 Rule 10 CPC to array Samey Singh as defendant no.4.
Ld.counsel further submits that for want of any prayer for decree of possession, present suit cannot be said to be maintainable.
Ld.counsel for defendant no.4 has referred to the application under order 6 Rule 17 CPC filed by the plaintiff seeking amendment of plaint so as to claim decree of possession, and submitted that this application came to be dismissed by Shri Babu Lal, Ld.ADJ, Delhi vide order dt.20.10.2004 and further that the said order was challenged by plaintiff before Hon'ble 38 High Court of Delhi, but still it was maintained.
ld.counsel for defendant No.4 further submits that when application under order 1 Rule 10 CPC was allowed, the plaintiff had no right to amend the plaint so as to change the nature of the suit altogether, but in this case, the plaintiff instead of filing amended plaint with just requisite changes perpetrated fraud by filing amended plaint changing the nature of the suit altogether which he could not do as provided under law. In support of this contention, ld.counsel has referred to decision in Gurdial Singh Vs. Raj Kumar Aneja, JT 2002(1) SC 633.
Ld.counsel for defendant no.4 has further submitted that he had no opportunity to challenge the amended plaint for the reason that he was not provided with copy of the plaint initially presented so that defendant no.4 could see the extent of amendment made by the plaintiff, while he was allowed only to array defendant no.4 as a party.
ld.counsel for defendant no.4 has submitted that the plaint amended by the plaintiff in this manner cannot be taken into consideration.
In this regard Learned counsel for plaintiff has rightly referred to order dt.19.01.1988 whereby, while allowing application U/O 1 rule 10 CPC, to array Samey Singh as defendant no.4, court directed for filing of 39 amended memo of parties and also for amended plaint. Learned counsel has also rightly referred to provisions of Sub-rule (4) of Rule 1, Order 10 CPC where it has been provided that where a defendant is added, plaint shall, unless the court otherwise directs, be amended in such manner as may be necessary. It has also been rightly pointed out by learned counsel for plaintiff that defendant no.4 filed written statement to the amended plaint. In the given circumstances, it cannot be said that the filed amended plaint unauthorizedly.
Para-17 of the amended plaint pertains to valuation for the purpose of court fees and jurisdiction. In this para the plaintiff has valued the suit for the purpose of relief of specific performance (including possession and/or damages at Rs.3,74,650/-. This was the valuation of the suit for the purpose of relief of specific performance and/or damages, when the plaint was initially filed. Therefore, while amending the plaint, neither any valuation for the purposes of relief of possession was given by the plaintiff nor any court fees for the purposes of possession was affixed. Additional court fees of Rs.13/- only was affixed for the purposes of decree of decree of declaration as available under Clause-E. In view of the above discussion, plaintiff is not entitled to the decree of specific performance of agreement dt.11.11.85. 40
In the given facts and circumstances of the case and provisions of Sec.53 A of Transfer of Property Act decision in Jafar Mian Vs. Qaiser Jahan Begum & Ors. AIR 2007 Allahabad 5; Babu Lal Vs. M/s. Hazari Lal Kishori Lal AIR 1982 SC 818; Nisha Ran & Anr. Vs. Pratap K. Kaula & Ors. 151 (2008) DLT 402; P.C. Varghese Vs. Devaki Amma Balambika Devi AIR 2006 Supreme Court 145, do not come to the aid of the plaintiff This issue is therefore decided against the plaintiff.
17. Issue no.11 Once the plaintiff has been held not entitled to decree of specific performance it is to be seen as to whether he is entitled to any damages from defendants no.1 & 2. Defendant no.3 has already left this world. A perusal of terms contained in agreement Ex.PW2/1 would reveal that a sum of Rs.1,25,000/- was paid by the plaintiff to defendants no.1 & 2, through defendant no.3. It has already been held that defendants no.1 & 2 did commit breach in performing their part of the agreement. In para-6 of the agreement Ex.PW2/1, it was provided that in case, the first party- defendants no.1 & 2 bagged out from the agreement to sell or failed to get necessary certificate for completion of said bargain, the second party - 41 plaintiff would be entitled to get the sale deed registered. As held above, plaintiff is not entitled to specific performance of the agreement.
Learned counsel for the plaintiff has submitted that under para-9 of the agreement, it was provided that defendants no.1 & 2 shall indemnify the plaintiff for losses/damages to the extent of three times in case, the plot of land went out of possession of the plaintiff, after the date of execution of the sale deed. However, this paragraph does not help the plaintiff in claiming damages as it is not a case of loss/damage, after the execution of the sale deed.
In the given facts and circumstances, when defendants no.1 & 2 committed breach of the agreement dt.11.11.85, interest of justice demands that plaintiff should be adequately compensated. Accordingly, defendants no.1 & 2 are directed to pay to plaintiff a sum of Rs.1,25,000/-, paid by way of earnest money on 11.11.85, with interest @ 8% p.a. w.e.f.11.11.85 till the date of its payment.
This issue is accordingly, decided in favour of the plaintiff and against defendants no.1 & 2.
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18. Issue no.12 In view of findings under issue no.11 above, suit of the plaintiff for decree of specific performance, declaration and permanent injunction is hereby dismissed. The suit is decreed in favour of the plaintiff for damages only and accordingly, defendants no.1 & 2 are directed to refund to the plaintiff the sum of Rs.1,25,000/-, paid by way of earnest money on 11.11.85, with interest @ 8% p.a. w.e.f.11.11.85 till the date of its payment. However, plaintiff to affix requisite court fees on the decretal amount awarded by way of interest, for the period from 11.11.85 till the date of institution of the suit.
19. Decree sheet be prepared and file be consigned to record room. Misc. Application No.325/09 Order Application U/s 340 Cr.P.C. filed by defendant no.4 Present application came to be filed by the defendant no.4-applicant on 20.02.08 during pendency of suit No.1650/87 with prayer for initiating proceedings against the plaintiff-respondent as he has allegedly given false evidence - oral as well as documentary in the judicial proceedings before 43 this court, with a view to cause tremendous injury and formidable loss to him (applicant). As per version put forth by the applicant in this application, he is owner in possession of land measuring 590 Sq.Yds. Comprising in field No.82/22 situated in revenue estate of Village Palam, New Delhi having purchased the same from Sukhdev Singh and Surjan Singh, defendants no.1 & 2 in the suit. On 18.07.1986, as per documents executed in his favour in accordance with law and got registered with Sub- Registrar.
Further, it is case of applicant that he collected raw material for construction of shops, after leveling of land and digging foundations. Construction thereon came to be constructed in May/June,1987. As further alleged by the applicant, respondent-plaintiff, in conspiracy with defendants no.1 to 3 in the suit sought decree of specific performance on the basis of agreement to sell and receipt dt.11.11.85 and obtain status quo orders.
Further, it is case of the applicant that plaintiff-respondent delayed the proceedings in the suit for a period of 20 years and harassed him (applicant) by filing false civil contempt petition and other similar applications. According to applicant, the plaintiff-respondent has propounded false documents i.e. agreement to sell dt.11.11.85 and receipt for payment of Rs.1,25,000/-. No power of attorney, alleged to have 44 executed in favour of Diwan Singh-defendant no.3 in the suit, has been produced before the court. Another allegation levelled by the applicant is that plaintiff-respondent made false statement before the court, while leading evidence in the suit that he (present applicant) had not set up construction on the land before 14.09.87. Case of applicant is that actually he had already raised construction on the land prior to 23.07.87. In this regard reference has been made to prosecution of the applicant in proceedings U/s 29 of Delhi Development Act, 1957, in case FIR No.515/87 registered at PS Delhi Cant, in which he was ultimately convicted.
It is also the case of the applicant that while obtaining order of status quo. Plaintiff-respondent filed false affidavit with a view to thwart transfer of land by defendants no.1 & 2 in his favour (favour of applicant). Version of Respondent- plaintiff Respondent-plaintiff has filed reply to the application raising preliminary objections towards its maintainability. He has pleaded to have already entered into an agreement to sell regarding the suit property, with defendants no.1 & 2 through their attorney - defendant no.3 and that present applicant- defendants no.4 was aware of the said transaction. He 45 has denied the allegation of conspiracy levelled by the applicant and further pleaded that in filing the suit he took recourse to the remedy available under the law. Respondent further pleaded that since the evidence was yet to be led by the defendants, including the present applicant, at that stage the present application was misconceived.
As regards allegation of delay in the suit, plaintiff-respondent has pleaded that he never sought any adjournment and that rather he was interested in early disposal of the matter.
As regards decision in the proceedings under Delhi Development Act, respondent has pleaded that findings recorded therein are not on the civil court and it is for this court to decide the suit. He has further denied to have made any false statement or verified any false affidavit and as such, prayed for dismissal of the application.
As discussed above, while disposing of the suit, this court has come to the conclusion that defendants no.1 & 2 entered into agreement to sell, through their attorney- defendant no.3, with the plaintiff for sale of the suit land on 11.11.85 and non-production of power of attorney in favour of defendant no.3 has been held to be of no adverse effect on the case of the plaintiff- respondent about execution of the agreement to sell and receipt. There is nothing on record to suggest that the agreement to sell and 46 receipt dt.11.11.85 are forged and fabricated documents.
As regards the allegation that the plaintiff, while making statement in court, deposed falsely that defendant no.4 -applicant had not raised construction on the suit land before 14.09.87, copy of judgment dt.05.08.94
- Ex.PW2/D1 would reveal that on 23.07.87, SI Kundan Lal and the constable accompanying him found that unauthorized construction of three shops was going on and construction had been raised upto the stage of roof level wall but on seeing the police, the mason and labourer had run away from the spot. From the judgment Ex.PW2/D1 it does not transpire that as to what was the extent of construction raised by 23.07.87.
PW2 was suggested in his cross examination by counsel for applicant-defendant no.4 that as on 14.09.87, no construction existed on the suit plot. But the plaintiff denied that as on 14.09.87, no construction existed at the site. Therefore, according to plaintiff, construction was there as on 14.09.87 and as such, it cannot be said that he made false statement in this regard.
As regards the allegation that false statement was verified and supported by an affidavit of the plaintiff, to obtain order of status quo, it may be mentioned here that the order of status quo is in existence and it was never vacated. There is nothing on record to suggest that the order of 47 status quo was obtained by misleading the court or by making any false statement.
As discussed above, plaintiff instituted suit against defendants no.1 to 3 to seek decree of specific performance, on the basis of agreement to sell executed in his favour. There is no evidence on record to suggest that the defendants no.1 to 3 conspired with the plaintiff in filing of the present suit, so as to cause loss or injury to the applicant.
In view of the above findings, no ground for initiating action against the plaintiff or defendants no.1 & 2 is made out. Therefore, the application U/s 340 Cr.P.C. is hereby dismissed.
Announced in open court (Narinder Kumar) Today:-24.12.09 Additional District Judge-01(West)/DELHI