Delhi District Court
Brief Facts As Necessary For The ... vs K.M. Shaffi Air 2004 Sc 4082 on 19 April, 2018
IN THE COURT OF ANKUR JAIN
ADDITIONAL DISTRICT JUDGE (CENTRAL) 10: DELHI
C.S. No. : 156/15
New No. : 14419/16
Sh. Som Prakash
S/o Sh. Lal Chand,
R/o 3, Chander Lok,
Pitam Pura, Delhi. .....Plaintif
VERSUS
1. Sh. Vijender Kumar
S/o Late Sh. Parmanand
2. Sh. Rajender Parsad
S/o Late Sh. Parmanand
3. Smt. Pushp Lata,
W/o Sh. Rajender Parsad
4. Smt. Anita Anand
W/o Sh. Vijender Kumar
All R/o 15, Kapil Vihar,
Pitam Pura, Delhi
5.Sh. Parveen Bhatia,
S/o Sh. Nand Kishore Bhatia,
R/o Chander Lok Enclave,
Pitampura, Delhi. .....Defendants
Suit for declaration, possession & Permanent
Injunction
Date of filing of Suit : 11.08.2008
Reserved for Orders on : 03.04.2018
Date of Order : 19.04.2018
Suit No. 156/2015 Page no. 1 out of 14
J U D G M E N T :-
01. Brief facts as necessary for the disposal of present suit are that plaintiff had filed a suit for declaration, possession and permanent injunction claiming himself to be owner of property bearing no. 3, Chander Lok, Pitam Pura, Delhi. As per the case of the plaintiff he had purchased the property from Delhi Development Authority vide perpetual lease deed dated 30.04.1998. Thereafter the property was got free hold vide conveyance deed dated 08.04.2003. Defendant no. 1 and 2 represented to the plaintiff that they are engaged in the construction of building and are expert in their field. Accordingly collaboration agreement dated 10.02.2004 was entered and construction was to be raised as per collaboration agreement. Collaboration Agreement contained a Specific Clause that Defendant no. 1 and 2 shall be responsible for violation of the bylaws of MCD and DDA. The construction over the property was completed by defendants no. 1 and 2 and it was represented to the plaintiff that it is as per plan. That on such representation Suit No. 156/2015 Page no. 2 out of 14 defendants no. 1 and 2 got portion of property bearing no. 3, Chander Lok, Pitampura ad-measuring 11.6 X 59 (hereinafter referred to as suit property) transferred in the name of defendant no. 3 and defendant no. 4 who were the wife of defendants no. 1 and 2 vide sale deed dated 12.08.2005. It is further stated that plaintiff came to know that the construction raised over the property was un-authorized and the property was booked by the MCD. It is also stated that plaintiff has come to know that the height of property has been raised by defendants no. 1 and 2 contrary to the building bylaws and as such no construction can be raised on the third floor of the said property. A notice dated 25.07.2008 was served upon the defendant whereby the sale deed dated 12.08.2005 was revoked. Thereafter the present suit has been filed seeking declaration of the Sale Deed dated 12.08.2005 as null and void, possession with respect of the ground floor portion.
02. Summons of the suit was issued to the defendants no. 1 to 4 on 11.08.2008. Written statement was filed by the Suit No. 156/2015 Page no. 3 out of 14 defendants no. 1 and 4 taking an objection that the suit has not been valued correctly and that the plaintiff has no locus- standi to file the present suit. It was also stated that the suit is time barred.
03. Property was transferred by defendants in favour of Sh. Praveen Bhatia i.e. defendant no. 5 and plaintiff accordingly amended the suit and had also sought declaration of the sale deed dated 15.11.2008 executed by defendants in favour of defendant no. 5 to be declared as null and void. Subsequent to the amendment defendant no. 5 has also filed his written statement in which the objections qua court fee was again taken. It was also stated that there is no cause of action in filing the present suit and the suit of the plaintiff is barred under the provisions of Section 41 (h) of the Specific Act.
04. Replication to the written statement of defendant no. 5 was filed wherein the contents of the written statement were denied and that of the plaint were reiterated.
Suit No. 156/2015 Page no. 4 out of 14
05. After completion of the pleadings vide order dated 04.08.2012 following issues were framed:-
1. Whether the plaintiff is entitled for a decree of declaration, thereby declaring the sale deed dated 12.08.2005, executed by defendant no. 1 and 2 in favour of defendant no. 3 and 4 as null and void?
OPP.
2. Whether the plaintiff is entitled for the declaration of sale deed dated 15.11.2008, executed by defendant no. 4 in favour of defendant no. 5 as null and void? OPP.
3. Whether the plaintiff is entitled for a decree of possession against the defendants with respect to the suit property portion measuring 11.6' X 59' forming part of property No. 3, Chander Lok, Pitampura, Delhi? OPP.
4. Whether the plaintiff is entitled for decree of permanent injunction against the defendant no. 5 thereby retraining defendant no. 5 permanently from selling, transferring, alienating or by creating third party interest in the suit property portion measuring 11.6' X 59' forming part of property no. 3, Chander Lok, Pitampura, Delhi? OPP.
5. Whether the plaintiff has not valued the suit property for the purpose of court fee and jurisdiction? OPD.
6. Whether the suit filed by the plaintiff is barred by limitation? OPD.
7. Relief.
Suit No. 156/2015 Page no. 5 out of 14
06. Vide order dated 09.05.2013 defendants no. 1 to 4 were proceeded exparte. In order to prove its case plaintiff examined himself as PW-1. Bhanu Pratap Singh JE, (building) Civil Line Zone as PW-2 to show that the property has been booked on 21.05.2004 for excess coverage in the front set back, rear set back and internal courtyard at ground floor, first floor and second floor. Defendant no. 5 examined himself as D5W1.
07. Ms. Sonali Malhotra, Ld. counsel for the plaintiff has argued that Collaboration Agreement has not been followed, therefore, the sale deed is null and void. She has further argued that defendant no. 5 was fully aware of the property being disputed and that is why he has purchased the property and has relied upon the judgment of Dayamathi Bai Vs. K.M. Shaffi AIR 2004 SC 4082, Sterling Holiday Resorts (India) Ltd. Vs. Monahor Nirody 1LR 2011 (1) Delhi 662 and Umrao Singh Vs. MCD, 1996 DLT 471 in support of her arguments.
Suit No. 156/2015 Page no. 6 out of 14
08. On the other hand, Mr. Amit Bhatia, Ld. counsel for the defendant has argued that collaboration agreement has not been challenged. There are no pleadings that sale deed is liable to be declared as null and void because of fraud or coercion. Therefore, the plaintiff is estopped from challenging the sale deeds.
09. I have heard the Ld. counsels for the parties and perused the record. My issue-wise findings are as under:-
Issue no. 1 and 2:
Whether the plaintiff is entitled for a decree of declaration, thereby declaring the sale deed dated 12.08.2005, executed by defendant no. 1 and 2 in favour of defendant no. 3 and 4 as null and void?
OPP.
AND Whether the plaintiff is entitled for the declaration of sale deed dated 15.11.2008, executed by defendant no. 4 in favour of defendant no. 5 as null and void? OPP.
Both the issues are taken up together. The onus to prove these issues are upon the plaintiff.
10. The Hon'ble Delhi High Court in Sterling Holidays Suit No. 156/2015 Page no. 7 out of 14 (Supra) has only held that testimony of a witness, whose evidence has gone unrebbuted, has to be given due credence.
11. In Umrao Singh (Supra) it was observed that notice of the demolition should be duly served upon the owner or the person who was carrying out construction. There can be no dispute to the proposition of law, but the same has to be applied to the facts of the case.
12. PW-1 in his examination in chief as deposed that collaboration agreement was entered on 10.02.2004. The 1st Sale deed which has been executed by the plaintiff in favour of defendants no. 3 and 4 was on 12.08.2005. While selling the property plaintiff had not taken any objection that the property is booked and therefore, he cannot execute the sale deeds. Admittedly the property was booked on 21.05.2004 and the sale deed which has been executed by the plaintiff is subsequent to the date when the property was booked. In fact show cause notice was also issued on Suit No. 156/2015 Page no. 8 out of 14 07.07.2004 and demolition order came to be passed on 26.07.2004 despite that plaintiff chose to enter into an contract and executed the sale deed, today, therefore, it does not lie in the mouth of the plaintiff to say that the sale deed should be cancelled as it is in violation of the Municipal law. There is no specific averment in the plaint with regard to the exact date, when the plaintiff came to know about the alleged violation. The pleadings in this regard are vague and general. Plaintiff was very well aware that building bylaws have been violated at the time when he executed the first sale deed. He admitted in his cross examination that he had executed the sale deed out of his own wish. Hence, there is no ground made out in favour of the plaintiff which can entail cancellation of the sale deed. There are no pleadings with respect to fraud. Once, the sale deed dated 12.08.2005 cannot be cancelled, subsequent sale deed executed by defendant no. 4 in favour of the defendant no. 5 can also not be cancelled. Undoubtedly, it was the duty of the defendant to follow the building bylaw, but there is no explanation as to why the plaintiff chose to remain silent, Suit No. 156/2015 Page no. 9 out of 14 when the construction was carried out. It chose to remain a mute spectator. Nowhere in the plaint it is mentioned specifically that defendants no. 1 and 2 played a fraud and obtained his signatures fraudulently on the sale deed. Specific Pleadings in this behalf are lacking. Moreover the document placed on record by PW-2 records that show cause notice and demolition order has been served. Therefore, the judgment of Umrao Singh is not applicable to the facts of the present case. Accordingly, these issues are decided against the plaintiff and in favour of the defendant.
13. Issues no. 3 and 4:-
Whether the plaintiff is entitled for a decree of possession against the defendants with respect to the suit property portion measuring 11.6' X 59' forming part of property No. 3, Chander Lok, Pitampura, Delhi? OPP.
AND Whether the plaintiff is entitled for decree of permanent injunction against the defendant no. 5 thereby retraining defendant no. 5 permanently from selling, transferring, alienating or by creating third party interest in the suit property portion measuring 11.6' X 59' forming part of property no. 3, Chander Lok, Pitampura, Delhi? OPP.
Suit No. 156/2015 Page no. 10 out of 14 Once it is held that sale deed cannot be canceled the question of possession being handed over to the plaintiff and grant of injunction does not arise. In any case when demolition order has been passed, this court cannot directed handing over of possession but can only direct the MCD to demolish the portion of the building which are un-authorized and cannot be compounded. However, since MCD is not a party to the suit, this court refrains from passing such order. Accordingly these issues are decided in favour of the defendant and against the plaintiff.
14. Issue no. 5:-
Whether the plaintiff has not valued the suit property for the purpose of court fee and jurisdiction? OPD.
The Hon'ble Supreme Court in Daya Mathi (Supra) has held that :
"the objection of mode of proof has to be taken when the document is marked or exhibited".
This judgment is not relevant to the issue, as here Suit No. 156/2015 Page no. 11 out of 14 the objection is not with respect to exhibition of the document, but with regard to insufficient court fee.
15. Plaintiff has valued the suit for the purpose of court fee and jurisdiction and for the relief of declaration at Rs. 12,50,000/-, for the relief of possession at Rs. 4,60,000/-. Defendant has contended that the subsequent sale deed which was effected in favour of defendant no. 5 appropriate court fee has not been paid. There is no merit in the contention as a subsequent transfer was made during the pendency of the suit. The principle of lispendens would apply and the plaintiff is not require to pay advaloram court fee on the consideration amount, on the subsequent transfer. If the arguments of the Ld. counsel for the defendant is to be accepted then every time a transfer is made, plaintiff would be liable to pay court fee. The plaintiff would have not only to amend his suit but also pay the additional court fee, which is not the purpose of law. Issue is accordingly decided in favour of the plaintiff and against the defendant.
Suit No. 156/2015 Page no. 12 out of 14 16. Issue no. 6:-
Whether the suit filed by the plaintiff is barred by limitation? OPD.
Plaintiff is seeking declaration and cancellation of the sale deed dated 12.08.2005 and 15.11.2008 is null and void. Article 53 of the Schedule of the Limitation Act says that the period of limitation would be three years to obtain decree of declaration.
17. No specific article has been pointed out of the defendant to show as to under which article the same would fall. The first sale deed is of dated 12.08.2005 for which the plaintiff is seeking cancellation and the suit has been filed on 08.08.2008, therefore, the suit is within the period of 3 years. This issue is decided in favour of the plaintiff and against the defendant.
18. Relief.
In view of my findings on issues no. 1 and 2, the suit of the plaintiff is liable to be dismissed.
Suit No. 156/2015 Page no. 13 out of 14
No order as to cost.
Decree sheet be prepared accordingly. File be consigned to Record Room.
Digitally signed Announced in the open court ANKUR by ANKUR JAIN Date: on 19th April, 2018 JAIN 2018.04.19 17:06:31 +0530 (Ankur Jain) Addl. District Judge (Central)-10 Delhi Suit No. 156/2015 Page no. 14 out of 14