Delhi District Court
Smt. Vinod Bala vs Shri Mahender Pal Kataria on 7 November, 2020
IN THE COURT OF SHRI HEM RAJ: ADDITIONAL
DISTRICT JUDGE-8 (CENTRAL), TIS HAZARI, DELHI
Suit No. 337/2015 (New No. 613771/2016)
Unique ID No.: DLCT01-000692-2012
In the matter of:
Smt. Vinod Bala,
W/o Sh. Krishan Lal Singla,
R/o H. No. 52/57, Gali No. 17,
Nai Basti, Anand Parbat,
New Delhi-110005 ............Plaintiff
VERSUS
Shri Mahender Pal Kataria,
S/o Late Sh. Mam Chand,
R/o H. No. 51/58, Gali No. 15,
Nai Basti, Anand Parbat,
New Delhi-110005 ...........Defendant
Date of institution : 14.05.2012
Date of pronouncement : 07.11.2020.
of Judgment.
JUDGMENT :
1. This is a suit for recovery of possession, damages, mesne profits and permanent injunction filed by the plaintiff qua the three rooms and open space (which is unauthorizedly converted by the defendant into a room and which the defendant is using as a room) Suit No. 337/2015 (New No. 613771/16) forming part of the aforesaid property bearing No. 52/65, Gali No. 18 & 19, situated at Nai Basti, Anand Parbat, New Delhi, shown in red colour in the site plan attached, (hereinafter referred as "suit property") claiming the following reliefs:-
(a) a decree for possession in respect of "suit property" in favour of the plaintiff and against the defendant directing the defendant to deliver the peaceful and physical possession thereof to the plaintiff who is the owner of the same forthwith;
(b) a decree in favour of the plaintiff and against the defendant for the recovery of Rs.1,08,000/- for the unauthorized use and occupation/mesne profits for the period from 19.10.2010 to 18.04.2012 (eighteen months) at the rate of Rs.6,000/- for the "suit property"which is in illegal use and occupation of the defendant;
(c) a decree in favour of the plaintiff and against the defendant for future damages @ Rs.6,000/- per month from 19.04.2012 till the possession of the "suit property" is delivered by the defendant to the plaintiff.
(d) a decree for permanent injunction in favour of the plaintiff and against the defendant thereby restraining the defendant, his family members, associates and authorised agents/representatives from selling, disposing off, alienating, handing over the possession and creating any third party interest over the "suit property" or any portion thereof in any manner, whatsoever, in favour of anybody else, except the plaintiff;
Suit No. 337/2015 (New No. 613771/16)
(d) the cost of the suit and such other and further relief, deemed fit and proper in the circumstances of the case may also be awarded to the plaintiff and against the defendant, in the interest of justice.
2. Facts, as per the plaintiff's version are that the plaintiff had purchased the suit property with its roof/terrace rights and the land underneath with all the fittings and fixtures provided therein from its previous owner Shri Ram Singh Nishad, through a registered sale deed dated 19.10.2010, registered as document No. 10316 in Book No. 1, Volume No. 3576 on pages 34 to 40, dated 23.10.2010 in the office of the Sub-Registrar-I, New Delhi. Sh. Ram Singh Nishad purchased the suit property from its absolute owner, namely, late Sh. Laxmi Narain, by virtue of the irrevocable GPA, Agreement to sell etc. dated 06.10.2005 and also registered Will vide registration No. 211, Book No. 3, Volume No. 1438, on pages 101 to 102 dated 26.12.2005 in the office of the Sub-Registrar, SD-III, New Delhi.
3. The fact of the defendant being in illegal occupation of the suit property was brought to his notice by the plaintiff as well as by Sh. Ram Singh Nishad, the previous owner. Mr. Ram Singh had earlier requested the defendant to vacate the said portion of the premises vide his notice dated 10.12.2007 through Sh. A.K. Narula, Advocate. The defendant acknowledged the receipt of the notice and sent reply through his Advocate on 02.12.2007. However, the defendant failed to vacate the same and hand over its vacant Suit No. 337/2015 (New No. 613771/16) possession to plaintiff so far and is still in illegal use and occupation of the suit property.
4. The plaintiff further stated, that the defendant is liable to vacate the suit property and handover its vacant possession to the plaintiff forthwith and also liable to pay the damages for unauthorized use and occupation of the said premises to the plaintiff since date of purchase i.e. 19.10.2010 till the abovesaid portion of the premises in his illegal occupation are vacated and vacant possession is delivered to the plaintiff which damages were calculated at the rate of Rs.6,000/- per month exclusive of the electricity and water charges, which amount the said premises could fetch easily, if the same is let out.
5. The plaintiff further stated that despite a legal notice dated 29.11.2010, duly served upon the defendant, he failed to vacate the suit property. The defendant rather sent a false and frivolous reply through his advocate.
6. The defendant contested the suit by filing a written statement stating that the plaintiff has forged the sale deed in her favour in collusion with her associates. The defendant had purchased the suit property from its owner Sh. Laxmi Narain vide sale consideration on 29.04.2000 and further 50 square yards of the property (of which the suit property was also the part) on 05.10.2000 and paid the sale consideration of the same on both time and on both the occasions Sh. Laxmi Narain had executed the relevant documents pertaining to sell i.e. GPA, Agreement to Sell and Will as well as receipt of the amount received by him. It is further stated that all the Suit No. 337/2015 (New No. 613771/16) documents were duly executed and registered with the Sub-Registrar, Delhi and some of the documents were attested by the Notary Public as required. It further stated that possession thereof was duly handed over to him, and thus the defendant is the owner of the portion purchased by him. It is further stated that the defendant got the mutation in his name and also got the electricity connection and paying the property tax thereof. It is further submitted that the plaintiff has not purchased the suit property and Shri Ram Singh Nishad had never purchased the suit property as alleged by the plaintiff.
7. The plaintiff has filed the replication controverting the submissions made by the defendant in the written statement and has reiterated the stand as taken in the plaint. The plaintiff further stated that the original owner Sh. Laxmi Narain had canceled the documents executed by him in favour of the defendant vide cancellation deed dated 31.08.2001 registered with the Sub-Registrar, Kashmiri Gate, Delhi vide registration No. 15281, Book No. IV, Volume No. 587 on page 19-20 (GPA) and document No. 9915 Book No. 3, Volume No. 375 page No. 75 dated 31.08.2001 (65 sq. yards) (Will) and also document No. 13289 Book No. IV, Vol. No. 1142 on page 1-2 (GPA) and document No. 9673 Book No. 3, Vol. No. 393 on page 108-109 dated 25.08.2003 (50 Sq. Yards) (Will). The fact of the cancellation of the abovesaid documents was brought to the notice of the defendant by Sh. Laxmi Narain through legal notices. It is further submitted that out of 65 Sq. Yards, 60 Sq. Yards was sold by Sh. Laxmi Narain to Sh. Ram Singh on 06.10.2005 through irrevocable GPA and registered Suit No. 337/2015 (New No. 613771/16) Will dated 22.12.2005 for a valuable consideration of Rs.1,00,000/-. It is further submitted that Sh. Laxmi Narain had died in the last week of December, 2008. The plaintiff further stated that since the documents executed by Sh. Laxmi Narain were canceled by him therefore, the defendant's rights in the suit property got extinguished.
8. From the pleadings of the parties the following issues were framed on 31.7.2013:-
(i) Whether the plaintiff is the owner of the property in dispute by virtue of sale in his favour by one Sh. Laxmi Narain? OPD
(ii) Whether the plaintiff is entitled to the decree of possession of the suit property as shown red in the site plan annexed? OPP
(iii) Whether the plaintiff is entitled to the manse profits @ Rs. 6,000/- per month from 19.10.2010 onwards till recover of possession? OPP
(iv) Whether the plaintiff is entitled to the interest @ 18% per annum on the damages awarded, if yes, from which date, upto which date? OPP Suit No. 337/2015 (New No. 613771/16)
(v) Whether the plaintiff is entitled to the decree of permanent injunction against the defendant as prayed? OPP
(vi) Relief.
9. Thereafter, vide order dated 12.08.2013 on the application of the defendant, issue No. 1, was re-framed as under:
(i) Whether the defendant is the owner of the property in dispute by virtue of sale deed in his favour by one Sh.
Laxmi Narain? OPD
10. Thereafter the case was proceeded on trial. The plaintiff had examined her husband Sh. Krishan Lal Singla as PW1 who deposed on the lines of the case of the plaintiff. He tendered his affidavit Ex. PW-1/A and proved the following documents:-
(i) Ex. PW-1/1 is the General Power of Attorney dated 25.02.2013 issued by the plaintiff in his favour.
(ii) Ex. PW-1/2 (Colly) is the Original Sale Deed alongwith site plan dated 19.10.2010 executed by Sh. Ram Singh Nishad in favour of the plaintiff.
(iii) Mark-A is the GPA ((Irrevocable) dated 06.10.2005.
(iv) Ex. PW-1/4 (Ex. PW-4/2) is de-exhibited and marked as Mark-
B. Mark-B is the Agreement to sell dated 06.10.2005.
(v) Ex. PW-1/5 (Ex. PW-4/3) is de-exhibited and marked as Mark-
C. Mark-C is the Cash Receipt of Rs.1,00,000/- dated 06.10.2005.
Suit No. 337/2015 (New No. 613771/16)
(vi) Ex. PW-1/6 (Ex. PW-4/4) is de-exhibited and marked as Mark-
D. Mark-D is the Possession Letter dated 06.10.2005.
(vii) Ex. PW-1/7 (Ex. PW-4/5) is de-exhibited and marked as Mark-
E. Mark-E is the Undertaking dated 06.10.2005.
(viii) Ex. PW-1/7 (Ex. PW-4/6) is de-exhibited and marked as Mark-
F. Mark-F is the affidavit dated 06.10.2005.
(ix) Ex. PW-1/8 (Ex. PW-4/7) is de-exhibited and marked as Mark-
G. Mark-G is the Will dated 22.12.2005.
(x) Ex. PW-1/9 is de-exhibited and marked as Mark-H. Mark-H is the Cancellation of GPA dated 31.10.2001.
Ex. PW-1/9 is the reply dated 20.12.2007.
(xi) Mark-I is the Cancellation of Will dated 31.08.2001.
(xii) Mark-J is the copy of registered Cancellation of Will dated 26.08.2003.
(xiii) Ex. PW-1/10 is de-exhibited and marked as Mark-K. Mark-K is the copy of legal notice dated 19.11.2001.
(xiv) Ex. PW-1/11 alongwith postal receipt is the notice dated 29.11.2010.
(xv) Ex. PW-1/12 alongwith envelope is the reply dated 15.01.2011.
(xvi) Ex. PW-1/13 (collectively) are the postal receipts dated 21.11.2001.
(xvii) Ex. PW-1/14 is de-exhibited and marked as Mark-L. Mark-L is the copy of legal notice dated 04.09.2003.
(xviii)Ex. PW-1/15 is the registered post receipt.
Suit No. 337/2015 (New No. 613771/16) (xix) Ex. PW-1/16 is de-exhibited and marked as Mark-M. Mark-M is the copy of reply dated 15.10.2003.
(xx) Ex. PW-1/17 is de-exhibited and marked as Mark-N. Mark-N is the copy of legal notice dated 10.12.2007.
(xxi) Ex. PW-1/18 (colly) are the UPC and registered post receipt dated 10.12.2007 and 23.10.2007.
(xxii) Mark-O is the complaint to the Commissioner of Police. (xxii) Mark-P alongwith envelope is the application under RTI Act- 2005.
(xxiii)Mark-Q are the reply letters to the RTI Application. (xxiv) Ex. DW-1/P1 is the site plan.
Ex. PW-1/3 to Ex. PW1/22, which were given exhibit numbers in the affidavit were de-exhibited in the examination in chief and they were marked as Mark A to Q.
11. PW-1 was cross examined at length by the defendant. He stated that he had taken a friendly loan from his relatives and friends. He further stated that his brother-in-law Dharmender Kumar had given him Rs.2,00,000/- and his daughters have also given him money/loan and a sum of Rs.2,00,000/- were taken by him from Mr. Rajender Singh. Further that his daughter Indu had given him a loan of Rs.1,50,000/- and another daughter, namely, Nisha had given him a loan of Rs.2,00,000/-. However, he admitted that he has no document to show that he had taken the above mentioned loan. He further stated that he had repaid the consideration amount to Mr. Ram Singh in cash. He denied the suggestion that he had not returned any amount towards Suit No. 337/2015 (New No. 613771/16) sale consideration to Sh. Ram Singh. He further denied that the sale deed is forged one and was executed in collusion with Sh. Ram Singh. He further stated that the dimension of the area is approximately 17.5 yds x 30 yds and is approximately 60 sq. yds. He stated that he knew that defendant had purchased 50 sq. yds and 65 sq. yds forming part of this property from Sh. Laxmi Narayan and Smt. Sushma had purchased 24 sq. yds from Sh. Laxmi Narayan, forming part of this property No. 52/65, Gali No. 18 and 19, Nai Basti, Anand Parbat. However he explained that same GPA, Will were canceled by Sh. Laxmi Narayan in the year 2001 and in the year 2003. He stated that as per his knowledge no suit for possession was filed by Sh. Laxmi Narayan against Smt. Sushma and the defendant. He denied that any documents were forged pertaining to the ground floor shop in possession of his father. He further stated that property bearing No. 52/65, Gali No. 18 and 19 is situated at Nai Basti, Anand Parbat, Sidhora Khurd. He admitted that there is another Nai Basti in Kishan Ganj, Delhi. He denied that sale deed of the suit property was executed by playing fraud before the Sub-Registrar, Kashmere Gate, Delhi. He further denied that the sale deed pertaining to area Nai Basti, Anand Parbat is not being registered or therefore, he has wrongly shown the property as Nai Basti, Kishan Ganj in his sale deed. He further stated that Sh. Ram Singh had given him only the cancellation deed, legal notices and electricity bills and no other document pertaining to the ownership of Laxmi Narayan was given to him. He further stated that there was a direct talk of the purchase of Suit No. 337/2015 (New No. 613771/16) the property with Sh. Ram Singh about two months before the execution of the documents i.e. sale deed. He further stated he had also represented Sh. Laxmi Narayan in a civil case defendant was in possession of the entire area of 115 square yards since the day of the execution of documents in his favour by Laxmi Narayan.
12. PW-1 further stated that on the day of execution of sale deed he alongwith his wife and three other persons went to the office of Sub-Registrar. No bayana was written, however only verbal talks were done. He paid some amount to Sh. Ram Singh. It was Rs.2,00,000/-. The entire property bearing No. 52/65, Gali No. 19, Nai Basti, Anand Parbat consists of 300-350 sq. yds and gali No. 19 falls towards the Northern side of the suit property. Gadodia Road falls in front of the shops of the suit property which is on the East side. The suit property consists of three rooms, veranda and open space. However, he is not aware of the dimensions of the rooms. The veranda was covered by the defendant after he purchased the suit property. He denied that directions shown in the suit as well as in the site plan were incorrect. He stated that he alongwith his wife and father had purchased shop No. 8 in the name of his father from Laxmi Narayan. He purchased 30 sq. yds. from Laxmi Narayan deposed that his mother had also purchased shop No. 7 from one Sh. Ramesh Kumar and that another room above the shop No. 7 and 8 was purchased by his parents. The room above the shop No. 7 was purchased by his mother and room above the shop No. 8 was purchased by his father around 10 to 14 years back. He denied that all these transactions were Suit No. 337/2015 (New No. 613771/16) forged or that that the documents executed by Sh. Ram Singh Nishad are forged or fabricated one or that the documents allegedly executed in favour of Sh. Ram Singh Nishad were forged and fabricated one or that the alleged Will dated 06.10.2005 executed in favour of Sh. Ram Singh Nishad is forged one and under any misrepresentation. He further denied that the defendant is in legal possession being owner of the same and is not liable to pay any damages as claimed by him.
13. PW-2 S.K. Sharma, LDC from the Office of Sub- Registrar-III, Asaf Ali Road proved the following documents:-
(i) Ex. PW2/A is the Will executed by Laxmi Narain in favour of Ram Singh. (The same was objected on the ground of mode of proof).
14. PW-3, wrongly numbered as PW-2, Sh. Surya Prakash, LDC from the Office of Sub-Registrar, Kashmiri Gate, Delhi proved the following documents:-
(i) Cancellation Deed executed by Sh. Laxmi Narayan canceling the GPA in favour of the defendant-which cancellation deed was registered as document No. 15281, Additional Book No. IV, Volume No. 587, pages 19-20 dated 31.08.2011.
(ii) Cancellation Deed of Will executed by Sh. Laxmi Narayan cancelling the Will in favour of defendant-which deed of cancellation was registered as document No. 9915, Additional Book No. III, Volume No. 205, page 75 dated 31.08.2001.
(iii) Cancellation of Will executed by Sh. Laxmi Narayan in favour of the defendant-which deed of cancellation was registered as Suit No. 337/2015 (New No. 613771/16) document No. 9673, Additional Book No. III, Volume No. 393, pages 108-109 dated 26.08.2003.
(iv) Cancellation of GPA executed by Sh. Laxmi Narayan in favour of the defendant-which deed of cancellation was registered as document No. 13289, Additional Book No. IV, Volume No. 1142, pages 1-2 dated 26.08.2003.
(v) Sale Deed executed by Ram Singh Nishad in favour of the plaintiff registered as document No. 10316, Additional Book No. I, Volume No. 3576, pages 34-40 dated 23.10.2010.
The documents were shown as already exhibited as Mark-G, H, I, J & Ex. PW-1/2 respectively.
15. PW-4 is Ram Singh Nishad who relied upon his affidavit Ex.PW4/A and proved the following documents:-
(i) Ex.PW4/1 is the irrevocable GPA dated 06.10.2005 executed by Laxmi Narain in his favour.
(ii) Ex.PW4/2 is Agreement to Sell dated 06.10.2005 executed by Laxmi Narain in his favour.
(iii) Ex.PW4/3 is the cash receipt dated 06.10.2005 executed by Laxmi Narain in his favour.
(iv) Ex.PW4/4 is the possession letter dated 06.10.2005 executed by Laxmi Narain.
(v) Ex.PW4/5 is the Undertaking dated 06.10.2005 executed by Laxmi Narain.
(vi) Ex.PW4/6 is the affidavit dated 06.10.2005 executed by Laxmi Narain.
Suit No. 337/2015 (New No. 613771/16) Documents Ex. PW4/7 to Ex. PW4/13 in the affidavit were de-exhibited. The documents proved by the witness were objected to by the defendants. Thereafter, PE was closed.
16. The defendant Mahender Pal Kataria had examined himself as DW1. DW-1 has relied upon his affidavit Ex.DW1/A and proved the following documents:-
(i) Ex. DW1/1 is the GPA dated 29.04.2000 executed by Laxmi Narain in favour of the defendant.
(ii) Ex. DW1/2 is the Agreement to Sell dated 29.04.2000 executed by Laxmi Narain.
(iii) Ex. DW1/3 is the Affidavit executed by Laxmi Narain.
(iv) Ex. DW1/4 is the Receipt of Rs.2,00,000/- dated 29.04.2000 executed by Laxmi Narain towards the sale consideration.
(v) Ex. DW1/5 is the Will executed by Sh. Laxmi Narain in favour of the defendant dated 29.04.2001.
(vi) Ex. DW1/6 is the GPA executed by Laxmi Narain dated 05.10.2000 for 50 Sq. Yards in the property.
(vii) Ex. DW1/7 is the Agreement to Sell for 50 Sq. Yards in the property.
(viii) Ex. DW-1/8 is the Affidavit by Laxmi Narain.
(ix) Ex. DW1/9 is the receipt of Rs.50,000/- towards the sale consideration of 50 Sq. Yards in the property.
(xi) Ex. DW1/10 is the Will of Laxmi Narain in respect of 50 Sq. Yards in the property.
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(xii) Ex. DW1/11 to Ex. DW1/21 are the house tax receipts in the name of the defendant.
17. At the time of examination of the witness on the objection of Ld. Counsel for the plaintiff Ex. DW1/3 to Ex. DW1/6 and Ex. DW1/8 to Ex. DW1/10 were de-exhibited and given Mark-AA to Mark-AH. The question of proof of an admissibility of a document Ex. DW1/2, Ex. DW1/7 and Ex. DW1/16 were left to be decided at the time of arguments.
18. DW-1 Mahender Pal Kataria was cross examined at length by counsel for the plaintiff. He denied that the suit property was sold by Sh. Laxmi Narain to Sh. Ram Singh Nishad. He further stated that he does not remember whether any notice dated 19.11.2001 was given to him. He further stated that he did not receive the notice Mark- K dated 19.11.2001 on behalf of Laxmi Narayan. He further stated that he came to know about the cancellation GPA dated 31.08.2001 when the present suit was filed. He further stated that he came to know regarding cancellation of Will dated 26.08.2001 on 09.10.2018 itself in the court. He further stated that he did not remember as to whether notice dated 04.09.2003 was served upon him from Sh. Laxmi Narayan. He further stated that he does not remember as to whether he had replied to the said notice vide reply notice dated 15.10.2003 as the matter is old one. He further stated that he had engaged counsel Sh. T.R. Sharma, Advocate when the summons in this suit was received from the court. He further stated that he knew Sh. T.R. Sharma, Advocate because he had various litigation and he Suit No. 337/2015 (New No. 613771/16) had engaged him in other cases. He further stated that he had got served legal notices through Sh. T.R. Sharma, Advocate to various tenants in respect of property bearing No. 52/65, Gali No. 18-19, Nai Basti, Anand Parbat, New Delhi. He further stated that he does not remember as to whether the notice Mark-N dated 10.12.2007 sent from Sh. Ram Singh Nishad was served upon him. He denied that he has deposed falsely that he does not remember. He further stated that he has no knowledge about the reply Ex. PW-1/9 dated 20.12.2007 sent by him through Sh. T.R. Sharma, Advocate to Sh. A.K. Narula, Advocate. He denied that he has deposed falsely and intentionally that he had no knowledge. He further stated that he did not remember as to whether the notice Ex. PW-1/11 dated 29.11.2010 sent from Smt. Vinod Bala was served upon him. He further stated that he has no knowledge as to whether reply Ex. PW-1/12 dated 15.01.2011 was sent by him through his counsel Sh. T.R. Sharma, Advocate. He denied that he has deposed falsely that he does not remember. He further stated that he had no knowledge about the reply Ex. PW-1/12 dated 15.01.2011 sent by him through Sh. T.R. Sharma, Advocate to Sh. A.K. Narula, Advocate. He denied that he has deposed falsely and intentionally that he had no knowledge. He further deposed that the portion shown in red colour in the site plan Ex. DW-1/P1 falls within the area measuring 65 square yards which he had purchased vide agreement to sell dated 29.04.2000. He denied that the said portion mark red in the site plan Ex. DW-1/P1 had been sold by Sh. Laxmi Narayan to Sh. Ram Singh Nishad in October, 2005. He denied that Suit No. 337/2015 (New No. 613771/16) the said portion being 60 square yards was sold by Sh. Ram Singh Nishad to Smt. Vinod Bala in October, 2010. He further volunteered that however the attorney of the plaintiff was aware that the said portion was purchased by him in the year 2000 from Sh. Laxmi Narayan. He denied that he had got prepared the documents mischievously and got the signature of Sh. Laxmi Narayan by misrepresenting him and without consideration. He volunteered that the documents were executed and registered before the Sub-Registrar, Delhi. He further deposed that he had made the payment of Rs.2,00,000/- in cash pertaining to property measuring 65 square yards which is a part of property No. 52/65, Gali No. 18-19, Nai Basti Anand Parbat, New Delhi. He further stated that he had not filed any proceedings or any suit against Sh. Laxmi Narayan. He affirmed that the photographs of Laxmi Narayan are pasted on various documents i.e. the Will Ex. DW-1/5 dated 29.04.2000, receipt Ex. DW-1/4 dated 29.04.2000, affidavit Ex. DW-1/3 dated 29.04.2000, agreement for sale Ex. DW-1/2 dated 29.04.2000 and GPA Ex. DW-1/1 dated 29.04.2000. He further deposed that the photographs shown on cancellation of GPA Mark-H dated 31.08.2001 does not seems to be of Laxmi Narayan. He further denied that the photograph affixed on GPA Mark-H dated 31.08.2001 is that of Laxmi Narayan. He gave same reply in respect of cancellation of Will Mark-I dated 31.08.2001 and irrevocable GPA dated 06.10.2005 Ex. PW-4/1. He denied that the portion shown in red colour in the site plan Ex. DW-1/P1 had been sold to the plaintiff by Sh. Ram Singh Nishad. He further denied that Suit No. 337/2015 (New No. 613771/16) the said property was sold by Sh. Laxmi Naryan to Sh. Ram Singh Nishad. He denied that he had no legal right in the said property as owner or to remain in possession of the same.
19. DW-2 is Sh. Narender Kataria, brother of the defendant , relied upon the documents relied by PW-1. He was cross-examined by Ld. Counsel for the plaintiff.
20. Ld. Counsel for the plaintiff has argued that the plaintiff is the lawful owner of the suit property and despite the service of the legal notices upon the defendant asking him to vacate the suit property he did not vacate the suit property, accordingly the plaintiff is entitled to a decree of possession and the other reliefs. He argued that the defendant is not the owner of the suit property. He relied upon the sale deed in his favour and the documents executed by Sh. Laxmi Narain, the original owner in favour of Sh. Ram Singh Nishad. He submitted that the earlier documents in favour of the defendant by Sh. Laxmi Narain were got extinguished when Sh. Laxmi Narain had executed the cancellation deed for the aforesaid documents. He relied upon the judgment cited in AIR 1998 SC 3006. He further submitted that since the defendant is in unlawful possession, therefore the plaintiff is also entitled to mesne profits as prayed by him.
21. Ld. Counsel for the defendant, on the other hand, has argued that the plaintiff has not been able to prove herself as the lawful and true owner of the suit property and, therefore the suit of the plaintiff is liable to be dismissed. He argued that the plaintiff has not examined herself and for the want of her testimony, the case is not Suit No. 337/2015 (New No. 613771/16) proved. In support of his submissions the defendant has relied upon the following judgments:
a. Rajesh Kumar and others V/s Kewal Krishan RSA No. 1930 decided on 12.5.2015 ( P&H. High Court), b. Baldev Singh V/a Chamn Singh RSA No. 2386 of 2017 Decided on 17.10.2018 P&H. High Court.
c. W.P.No.3261/2016 0f Madhya Pardesh. High Court
22. Ld. Counsel for the defendant further argued that it is well settled maxim of law that a person cannot transfer the better title to the other which he does not have. Therefore, the sale transaction by Ram Singh in favour of the plaintiff does not have any values in the eyes of law as Ram Singh himself had no better title of the suit property. Alternatively, the defendant has argued that the documents executed in favour to the defendant are well recognized in law and the defendant is owner of the property. He relied on the judgment of Pawan Kumar And Ganga Bishan Gupta Vs. Financial Commissioner And Others 2003 (4) AD (Delhi) 265 and (2003) 107 DLT 726.
23. The defendant has further argued that alleged cancellation deed whereby the documents of the defendant have been canceled by the said Laxmi Narain has not been proved by the plaintiff. It is further submitted that the act of execution of documents is bia-lateral act and cannot be canceled the same by uni-lateral act. It is an admitted case of the plaintiff that till the death of the said Laxmi Narain he had not Suit No. 337/2015 (New No. 613771/16) filed any suit against the defendant. Thus the alleged cancellation had no force in the eyes of law. He relied upon RLR 1986 (Note) 89 and Sumit Arora Vs. Shashi Bala RFA No. 713 of 2018.
24. The defendant further argued that that the plaintiff is not in possession of the property in suit and further it is an admitted case of the plaintiff that the defendant is in possession from the date of purchase. The documentary evidence and the oral evidence led by the plaintiff do not gel with each other. The entire facts clearly established that the alleged sale deed is hit under the provisions of sec. 91 and 92 of the evidence act.
25. Another submission advanced by the defendant is that Laxmi Narain had died in Dec. 2008 and thus, the alleged sale deed by his attorney in 2010 had no force and the alleged WILL dated 26.12.2005 has not been proved as per law. However, even if for the sake of the arguments, it is believed Ram Singh Nishad had purchased the property on 6.10.2005 then Laxmi Narain had no right to execute the WILL 26.12.2005. Thus it is clear that the documents are forged one and procured.
26. Ld. Counsel for the defendant further submitted that the alleged sale deed is apparently forged one as the property is situated at Anand Parbat in Nai Basti, and the sale deed were not being executed in the area on account of dispute between the Ram Jas Foundation and D.D.A. The alleged deed has been got executed by concealing the said fact and the same was shown in Nai Basti at Kishan Ganj Delhi. The said area Kishan Ganj Delhi is separate area. The defendant has filed Suit No. 337/2015 (New No. 613771/16) the sale deed and on back side of the first page ( the back side of the page 93 of the file ) mentioned Village and City : Nai Basti Kishan Ganj Contrary to that the area Anand Parbat is in the land revenue of Sindhora Khurd and some part in village Chokri Mubarak Pur. The defendant has filed the copy of I card of one person namely Kamal Kishore, son of Desh Raj, R/o 525, Nai Basti Kishan Ganj Delhi 110007. The plaintiff cleverly has not mentioned the Pin Code of the area in Detail of the property.
27. Ld. Counsel for the defendant vehemently argued that there are contradictions between the oral testimonies and the documents on record which show that the things have not happened in the manner in which the plaintiff is claiming.
28. In the rebuttal, Ld. Counsel for plaintiff submitted that the perusal of the sale deed would show that at the time when the sale deed was registered, the Nai Basti, Anand Parbat fell in the area of Kishan Ganj, therefore, there is no forgery in the sale deed. Ld. Counsel has also filed certificate from the Office of the District Election Officer and the extract from the Electoral Roll.
29. I have heard the arguments advanced by Ld. Counsel for the plaintiff and the defendant. I have also gone through carefully the oral and documentary evidence on the record.
30. My issue-wise findings are as under:-
Issue No. 1.
(i) Whether the plaintiff is the owner of property in dispute by virtue of sale deed in his favour by one Sh. Laxmi Narain? OPD Suit No. 337/2015 (New No. 613771/16) The issue No. 1 was re-framed by order dated 12.08.2003 as under:-
(i) Whether the defendant is the owner of the property in dispute by virtue of sale deed in his favour by one Sh. Laxmi Narain?
OPD
31. The plaintiff has claimed herself to be the owner of the suit property on the ground that she had purchased the suit property by way of a sale deed dated 19.10.2010 from Sh. Ram Singh Nishad. The plaintiff has further claimed that Sh. Ram Singh Nishad became the owner of the suit property on the basis of various documents executed by its erstwhile owner Sh. Laxmi Narain in favour of Sh. Ram Singh Nishad on 06.10.2005. On the other hand, the defendant has claimed himself to be the owner of the suit property on the basis of several documents executed in his favour by Sh. Laxmi Narain in the year 2000. Since, the plaintiff has come up with a positive case that he is the owner of the suit property, therefore, the onus to prove this issue should be on the plaintiff and not on the defendant. However, this issue was framed twice and both the times the onus to prove this issue was put on the defendant. In my opinion, since the case has been fought by the parties after knowing each other's case, therefore, the wrong framing of an issue or non-framing of an issue or wrong onus to prove the issue, does not matter. It is well settled principal of law that when the parties knowing fully well each other's case have led evidence, then, the aforesaid question of issue does not arise.
Suit No. 337/2015 (New No. 613771/16)
32. The plaintiff has argued that since the plaintiff has obtained the sale deed in his favour from Sh. Ram Singh Nishad, therefore, she is the owner of the suit property, whereas the defendant has only got the several documents which too were later on canceled by Sh. Laxmi Narain, therefore, the defendant has no right in the suit property.
33. In the present case, we have two set of documents of different nature. The plaintiff has claimed the ownership on the basis of the sale deed in her favour, whereas the defendant has claimed the ownership on the basis of the documents executed by Sh. Laxmi Narain in his favour in the year 2000. The validity and nature of the different documents executed at the time sale of an immovable property been discussed by the Hon'ble Supreme Court in the judgment of Suraj Lamp & Industries (P) Limited Vs. State of Haryana & Another, (2012) 1 SCC 656. The relevant paragraph are reproduced here as under:-
"Scope of an agreement of sale
16. Section 54 of the TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam [(1977) 3 SCC 247] observed: (SCC pp. 254-55, paras 32-33 & 37) "32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Ram Baran Prasad v. Ram Mohit Hazra [AIR 1967 SC 744 : (1967) 1 SCR 293] .) The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the Suit No. 337/2015 (New No. 613771/16) ownership of property, but not amounting to an interest or easement therein.
33. In India, the word 'transfer' is defined with reference to the word 'convey'. ... The word 'conveys' in Section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership.
***
37. ... that only on execution of conveyance, ownership passes from one party to another...."
17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [(2004) 8 SCC 614] this Court held: (SCC p. 619, para
10) "10. Protection provided under Section 53-A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed into service against a third party."
18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
19. 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 the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable 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.
Scope of power of attorney.
20. 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 grantor authorises the grantee to do the acts specified Suit No. 337/2015 (New No. 613771/16) therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). 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.
21. In State of Rajasthan v. Basant Nahata [(2005) 12 SCC 77] this Court held: (SCC pp. 90 & 101, paras 13 & 52) "13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
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52. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers of Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
An attorney-holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.
Scope of Will
22. A Will is the testament of the testator. It is posthumous disposition of the estate of the testator direction distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the lifetime of the testator. It is said that so long as the testator is alive, a will is not worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not Suit No. 337/2015 (New No. 613771/16) married, marries after making the will, by operation of law, the will stands revoked. (See Sections 69 and 70 of the Succession Act, 1925.) Registration of a will does not make it any more effective.
24. We therefore 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 recognised or valid mode of transfer of immovable 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. They cannot be recognised as deeds of title, except to the limited extent of Section 53-A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/will transactions known as GPA sales."
34. The aforesaid judgment of Suraj Lamp (Supra) was considered by the Hon'ble Delhi High Court in the judgment of Ramesh Vs. Suresh and another RFA 358/2000 dated 09.04.2012. Paragraph No. 3 of the judgment of Ramesh (Supra) of the Hon'ble Delhi High Court is reproduced for the benefit of all:-
''3.. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will (para
14). Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will."
Suit No. 337/2015 (New No. 613771/16)
35. The Hon'ble Delhi High Court in the said judgment has also dealt with a question whether a power of attorney given for consideration would come to an end on the death of the executant of the power of attorney. The relevant observation can be found in paragraph No. 4 of the said judgment which is reproduced hereunder:-
"4. There is also one other aspect which needs to be clarified before proceeding ahead and which is whether a power of attorney given for consideration would stand extinguished on the death of the executant of the power of attorney. The answer to this is contained in illustration given to Section 202 of the Contract Act, 1872, and the said provision with its illustration reads as under:-
"Section 202. Termination of agency, where agent has an interest in subject matter.- Where the agent has himself an interest in the property which forms the subject- matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
Illustrations
(a) A gives authority to B to sell A‟s land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death."
The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney."
36. Therefore, the legal prepositions which emerge out from the judgment of Suraj Lamp (Supra) and Ramesh Chand (Supra) are that unless there is a registered sale deed in respect of an immovable property, as provided under Section 54 of the Transfer of Property Act, no interest or title pass thereof. However, if certain documents other than the sale deed have been executed for example, GPA, Agreement to Sell, Will etc., wherein a power of attorney has been executed for consideration and agreement to sell whereby the Suit No. 337/2015 (New No. 613771/16) possession of an immovable property was given simultaneously under Section 53A of the Transfer of Property Act, although will not give a person complete ownership rights strictly, however certain rights can exist in immovable property pursuant to the provision of Section 202 of the Indian Contract Act and Section 53A of the Transfer of Property Act.
37. Coming back to the facts of the present case, it is an admitted case of the parties that GPA Ex. DW1/1, Agreement for Sale Ex. DW1/2, Affidavit Ex. DW1/3, Receipt Ex. DW1/4, Will Ex. DW1/5, all dated 29.04.2000 were executed by Sh. Laxmi Narain in favour of the defendant. The said documents pertain to the suit property. The GPA Ex. DW1/1 and the Will Ex. DW1/5 were duly registered with the Sub-Registrar.
38. The plaintiff has argued that vide cancellation deed dated 31.08.2001, Mark-H, Sh. Laxmi Narain canceled the GPA in favour of the defendant and further that vide cancellation deed dated 31.08.2001 Sh. Laxmi Narain had canceled the Will in favour of the defendant, and therefore, the documents executed by Sh. Laxmi Narain in favour of the defendant Ex. DW1/1 and Ex. DW1/5 have no legal sanctity since the GPA and the Will in favour of the defendant were canceled by Sh. Laxmi Narain.
39. When this argument is tested in the light of the legal position as held in the cases of Suraj Lamp ( supra) and Ramesh Chand (Supra), I find that since the GPA Ex. DW1/1 in favour of the Suit No. 337/2015 (New No. 613771/16) defendant was executed by Sh. Laxmi Narain for consideration of Rs.2,00,000/- as depicted from the agreement to sell Ex. DW1/2, the GPA in favour of the defendant could not have been revoked by Sh. Laxmi Narain in view of Section 202 of the Indian Contract Act. Furthermore, the Agreement to Sell Ex. DW1/2 and the receipt Ex. DW1/4 show the receipt of payment by Sh. Laxmi Narain. The Agreement to Sell further shows that the physical possession of the suit property was also handed over by Sh. Laxmi Narain to the defendant and since then he has been in possession. Therefore, the defendant has also got the protection of Section 53A of the Transfer of Property Act. The benefit of the principle of doctrine of part performance under Section 53A of the Transfer of Property Act should be given to the defendant as the physical possession of the property was also given to the defendant at the time of execution of the documents Ex. DW1/1 to Ex. DW1/5.
40. The sale deed in favour of the plaintiff shows that the possession of the suit property had been lying with the plaintiff and Ram Singh Nishad handed over the proprietary legal possession to the plaintiff, which is otherwise than the record else had the possession been with the plaintiff then the plaintiff would not have filed the present case for possession of the suit property.
41. The next argument the plaintiff advanced is that the plaintiff has got a registered sale deed in her favour from Sh. Ram Singh Nishad, and the sale deed being a better document than the GPA Suit No. 337/2015 (New No. 613771/16) sale documents in favour of the defendant, hence the sale deed of the plaintiff got better value in the eyes of law. In my opinion, the said argument of the plaintiff is liable to be rejected. Once it is held that Sh. Laxmi Narain could not have canceled the GPA sale documents Ex. DW1/1 and Ex. DW1/5, as the defendant has acquired the right under Section 202 of the Indian Contract Act and Section 53A of the Transfer of Property Act, then no rights viz-a-viz the suit property were passed to Sh. Ram Singh Nishad and, therefore Sh. Ram Singh Nishad could not have executed the sale deed in favour of the plaintiff as he himself had no rights in the suit property as all the rights, although limited under Section 202 of the Indian Contract Act and Section 53A of the Transfer of Property Act, pertaining to the suit property remained with the defendant. It is well settled principle of law that a person who does not have any right cannot transfer the same to the other person. Hence, this argument of Ld. Counsel for the plaintiff is rejected.
42. In view of the aforesaid discussion it is held that the plaintiff has failed to prove his ownership of the suit property, whereas the defendant has been able to prove on record that his interest is protected in the suit property by virtue of Section 202 of the Indian Contract Act and Section 53A of the Transfer of Property Act. The issue No. 1 is decided accordingly.
43. ISSUE No. 2.
Suit No. 337/2015 (New No. 613771/16)
(ii) Whether the plaintiff is entitled to the decree of possession of the suit property as shown red in the site plan annexed? OPP In view of the findings in Issue No. 1 it is held that the plaintiff is not entitled to the decree of possession of the suit property as shown in the site plan annexed. The issue No. 2 is decided accordingly.
44. ISSUE No. 3.
(iii) Whether the plaintiff is entitled to the manse profits @ Rs. 6,000/- per month from 19.10.2010 onwards till recover of possession? OPP In view of the findings of Issues No. 1 and 2 it is held that the plaintiff is not entitled to the mesne profits @ Rs.6,000/- per month from 19.10.2000 onwards till recovery of the possession. The issue No. 3 is decided accordingly.
45. ISSUE No. 4.
(iv) Whether the plaintiff is entitled to the interest @ 18% per annum on the damages awarded, if yes, from which date, upto which date? OPP Suit No. 337/2015 (New No. 613771/16) In view of the findings of Issues No. 1, 2 and 3 it is held that the plaintiff is not entitled to any interest @ 18% per annum on the damages. The issue No. 4 is decided accordingly.
46. ISSUE No. 5.
(v) Whether the plaintiff is entitled to the decree of permanent injunction against the defendant as prayed? OPP In view of the findings of Issue No. 1, whereby the plaintiff has failed to prove that she is the owner of the suit property, no injunction can be granted against the defendant. Accordingly, the issue No. 5 is decided against the plaintiff and in favour of the defendant.
47. Relief: In view of the above discussion the Court is of the opinion that the plaintiff is not found entitled to any relief in her favour. Accordingly, the suit of the plaintiff is dismissed. No order as to costs.
48. Decree sheet be prepared accordingly.
49. File be consigned to Record Room after completion of Digitally signed by the necessary formalities. HEM HEM RAJ Date:
RAJ 2020.11.09 11:43:57 +0530 Pronounced in the open Court (HEM RAJ) on 7th November, 2020. Additional District Judge-08 Central District : Tis Hazari Courts Delhi.
(This judgment contains 32 pages and each page has signed by me) Suit No. 337/2015 (New No. 613771/16)