Delhi District Court
Sh. Shekhar Bajaj vs Smt. Satya Rani Sharma on 8 April, 2019
IN THE COURT OF SHRI BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE05, SOUTH WEST
DWARKA COURTS, NEW DELHI
Civil Suit No: 452/17
IN THE MATTER OF
Sh. Shekhar Bajaj
S/o Sh. Jagdish Bajaj
R/o B55, New Rajinder Nagar,
New Delhi.
.......... Plaintiff
versus
1. Smt. Satya Rani Sharma
W/o Sh. Vishavnath Sharma
UID No. 3808 8387 8484
TA111, Block - TA, Om Vihar,
Uttam Nagar, Near Sanatan Dharm Mandir,
New Delhi 110059.
.......... Defendant No. 1
2. Sh. Kali Charan
S/o Sh. Vishavnath Sharma
TA111, Block - TA, Om Vihar,
Uttam Nagar, Near Sanatan Dharm Mandir,
New Delhi 110059.
.......... Defendant No. 2
3. Sh. Vijay Sharma
S/o Sh. Vishavnath Sharma
TA111, Block - TA, Om Vihar,
CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 1 of 53
Uttam Nagar, Near Sanatan Dharm Mandir,
New Delhi - 110059
All also at:
Plot No. 5657A, Vikas Kung Extension,
West Block, Khasra No. 3/8 & 13, Village Hastal,
Uttam Nagar, New Delhi - 110059.
.......... Defendant No. 3
4. Sh. Tarkeshwar Parsad Vidharhi
S/o Sh. Sampat Prasad Singh, (Deleted vide order dated
R/o Village, Garkha Saran, 14.10.2017)
Bihar, Pin - 841311
.......... Defendant No. 4
5. Kuljit Singh
S/o Sh. Baljit Singh (Proceeded exparte vide
R/o RZA20, Gali No. 3, order dated 14.10.2017)
Dwarka Puri, Vijay Enclave,
New Delhi - 110045.
.......... Defendant No. 5
Date of institution : 08.05.2017
Date when judgment reserved : 23.03.2019
Date of Judgment : 08.04.2019
SUIT FOR POSSESSION, PERMANENT AND MANDATORY
INJUNCTION
JUDGMENT:
1. Vide this judgment, I shall decide the present suit filed by the plaintiff for possession, permanent and mandatory injunction against CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 2 of 53 the defendants.
2. Briefly the case of the plaintiff as set out in the plaint is summarized as under: 2.1. The property bearing No. 56 and 57A, land admeasuring 50 sq. yards, Khasra No. 3/8 and 13, situated in the area of Village Razapur Khurd, Delhi in a colony known as Vikas Kunj, West Block, Uttam Nagar, New Delhi 110059 (hereinafter referred to as the "suit property") originally belonged to defendant no. 5 Sh. Kuljit Singh. 2.2. The plaintiff purchased the suit property from Sh. Kuljit Singh on 09.12.2014 in the name of his wife Smt. Kavita Bajaj vide General Power of Attorney (GPA), Agreement to Sell, Affidavit, Possession Letter, Will and Payment receipt.
2.3. The defendant nos. 1 to 3 are the illegal trespassers in the suit property of the plaintiff. The defendant no. 4 had no right over the suit property to transfer it or let it on the rent and all the documents allegedly executed by and between the defendant no. 1 and 4 are null and void.
2.4. As per the information contained in Form P4 of the year CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 3 of 53 20062007, one Mr. Bansi Lal was the landholder of the suit property who had transferred the same to Smt.Madhuri Devi vide GPA, Agreement to Sell, Will and Receipt dated 12.06.1991. Thereafter, Smt. Madhuri Devi transferred the suit property in the name of Mr. Balbir Singh vide same set of documents, all dated 29.01.1992. Sh. Balbir Singh sold the suit property to Mr. Kuljit Singh vide similar set of documents dated 03.10.2012.
2.5. The suit property constituted only of a built up structure i.e. the ground floor, wherein the entry and the exit of the suit premises was from one iron shutter gate.
2.6. The plaintiff came to know during course of the transaction of sale purchase of the suit property that one Balbir Singh had applied for electricity connection of the suit premises from BSES which was made available to him vide electricity connection bearing BRPL CA No. 103175351 dated 11/12/2007.
2.7. The plaintiff purchased the suit property from his wife on 30.03.2015 for Rs. 10 lacs vide vide GPA, Agreement to Sell, Receipt, registered Will, Possession Letter and took over the possession of the CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 4 of 53 same. The plaintiff also applied for a home loan of Rs. 10 lacs from Aar Kay Finlease Pvt. Ltd.
2.8. The plaintiff took the peaceful possession of the suit property from his earlier owner Sh. Kuljit Singh on 09.12.2014 in his wife's name and was enjoying the rights of the suit property and had shifted his personal belongings and valuable goods in the suit premises. The plaintiff and his family members have been regularly making visits at the suit property for conducting pooja on the festivals. 2.9. In the morning of 05.01.2017, when the plaintiff made a routine visit to the suit property, he found that the shutter of the main entrance had been replaced by an iron gate and a small temporary structure had been raised on the terrace of the ground floor and he came to know that defendant nos. 1 to 3 in connivance with each other and many other persons deceitfully, illegally and arbitrarily trespassed the suit property and now they are in illegal possession of the suit property. 2.10. The defendant nos. 1 to 3 projected the suit property as property No. 55B, in colony known as Vikas Kunj Extension, West Block, Uttam Nagar, New Delhi, admeasuring 50 sq. yards, out of CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 5 of 53 Khasra No. 3/8 situated in the abadi area of village Hastsal, New Delhi and have managed to fabricate identity proof over the said fake address. Despite the complaint made in this regard to the police no action was taken. Hence, the present suit.
3. The plaintiffs by way of present suit has prayed for following reliefs:
a) a decree of possession of the suit property i.e. property bearing No. 56 and 57A, land admeasuring 50 sq. yards, Khasra No. 3/8 and 13, situated in the area of Village Razapur Khurd, Delhi in a colony known as Vikas Kunj, West Block, Uttam Nagar, New Delhi -
110059, in his favour and against the defendants;
b) directions to conduct an inquiry into mesne profit in respect of the suit property for the past one year and also from date of institution of the suit;
c) a final decree in respect of the mesne profits determined on the basis of inquiry in favour of the plaintiff;
d) a decree of permanent and mandatory injunction restraining the defendants, their agents, successors and assigns, from dealing in the suit property or creating any third party interest and creating any charge or CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 6 of 53 encumbrance in the suit property in any manner or by projecting it as property No. 55B, in colony known as Vikas Kunj Extension, West Block, Uttam Nagar, New Delhi, admeasuring 50 sq. yards, out of Khasra No. 3/8 situated in the abadi area of village Hastsal, New Delhi.
4. The defendant nos.1 to 3 have contested the suit by filing joint written statement contending that: 4.1. They are the owners and in possession of plot No. 55B Vikas Kunj Extension, West Block, Uttam Nagar, New Delhi59 and the plaintiff has filed the present suit in respect of property bearing no. 56 and 57A, Khasra No. 3/8, and 13, Vkas Kunj, West Block, Uttam Nagar, New Delhi 59 and both the properties are different and distinct, therefore there is no cause of action against the defendants. 4.2. The suit is based on false and fabricated documents. None of the documents filed by the plaintiff is genuine or registered one and hence are void ab initio.
4.3. The chain of ownership documents filed by the plaintiff are unreliable in view of the verdict of Hon'ble Apex Court in Suraj Lamp CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 7 of 53 & Industries (P) Ltd. vs. State of Haryana, Special Leave Petition (C) No. 13917 of 2009 and the same do not confer any right, title or interest in the property.
4.4. The suit has not been properly valued for the purposes of court fees and jurisdiction.
4.5. The plaintiff is seeking decree of declaration in respect of the property of the defendants i.e. plot bearing No. 55B,Vikas Kunj, West Block, Uttam Nagar, New Delhi in the garb of the present suit, whereas both the properties i.e. property of the plaintiff and of the defendants are separate and distinct. It is denied that the defendants have trespassed the property of the plaintiff.
4.6. The suit is bad for non joinder of necessary parties as the plaintiff has not impleaded the necessary and proper parties, namely, Sh. Bansi Lal, Smt. Madhuri, Sh. Balbir Singh and Aar Kay Finlease Pvt. Ltd in the array of parties.
4.7. On merits, the contents of the plaint are stated to be wrong and denied and the defendant nos. 1 to 3 have prayed for dismissal of the suit.
CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 8 of 53
5. The plaintiff has filed replication to the written statement filed by defendant nos. 1 to 3 contending that the suit property bears no. 56 and 57A, colony known as Vikas Kunj, West Block, Uttam Nagar, New Delhi 110059 situated in Khasra No. 3/8 and 13 of the revenue estate of Razapur Khurd, New Delhi, of which the plaintiff is the owner and in the garb of property No. 55B, Vikas Kunj Extension, West Block, Uttam Nagar, New Delhi, the defendant nos. 1 to 3 are trying to grab the suit property which belongs to the plaintiff. It is stated that the defendants are giving a false number to the suit property as 55B while the suit property bears No. 56 and 57A. It is further stated by the plaintiff that the documents filed by him are genuine and the documents relied upon by the defendants are of a different property. Other contents of the plaint have been reaffirmed and those made in the written statement have been controverted.
6. It may be noted here that during the court proceedings, on the submissions made by the Ld. Counsel for the plaintiff that the plaintiff did not wish to proceed his case against the defendant no. 4, the name of defendant no. 4 Sh. Tarkeshwar Prasad Vidarthi was deleted CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 9 of 53 from the array of the parties vide order dated 14.10.2017. On the said date i..e 14.10.2017, the defendant no. 5 Sh. Kuljit Singh was also proceeded exparte by the Ld. Predecessor as he did not appear in the Court despite service on 16.09.2017 and chose not to contest the suit.
7. From the pleadings of the parties, the following issues have been framed vide order dated 14.10.2017 for adjudication : i. Whether the suit property bearing No. 56 & 57A, Khasra No. 3/8 and 13, Vikas Kunj, West Block, Uttam Nagar, New Delhi110059 is not the same property of which the defendant nos. 1 to 3 are owners and in possession of the same? OPD.
ii. Werther the documents such as Agreement to Sell, Receipt and Affidavit, all dated 09.12.2014 are forged and fabricated and the same cannot be relied in view of being unregistered and unstamped? OPD .
iii. Whether the suit has been under valued for the purpose of jurisdiction and court fees? OPD.
iv. Whether the defendant nos 1, 2 & 3 are the trespasser and are in illegal possession of the suit property ? OPD. v. Whether the plaintiff is entitled to the decree of possession of the suit property, as prayed for? OPP. vi. Whether the plaintiff is entitled to the decree of permanent and mandatory injunction, as prayed for? OPP.
CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 10 of 53 vii. Whether the plaintiff is entitled to mesne profits in respect of the suit property. If so, for which period and on what date? OPP.
viii. Relief
8. In order to prove his case, the plaintiff himself has stepped into the witness box as PW1 and filed his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the plaint. He also relied upon and exhibited the following documents during his deposition: Ex. PW1/1 : Copy of sale/transfer documents i.e. GPA, (Colly) Agreement to Sell, Affidavit, Possession Letter, Will and Payment receipt, all dated 09.12.2014 in favour of Smt. Kavita Bajaj Ex. PW1/2 : Copy of Form P4 issued by the office of Dy. Commissioner, West District for the year 200607 Ex. PW1/3 : Sale/transfer documents of the suit (Colly) property dated 12.06.1991 executed between Sh. Bansi Lal and Smt. Madhuri Devi Ex. PW1/4 : Sale/transfer documents of the suit (Colly) property dated 29.01.1992 executed between Smt. Madhuri Devi and Sh. Balbir Singh Ex. PW1/5 : Sale/transfer documents of the suit (Colly) property dated 03.10.2012 executed CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 11 of 53 between Sh. Balbir Singh and Sh. Kuljit Singh Ex. PW1/6 : Copy of purchase transfer agreement of the suit property dated 30.03.2015 Ex. PW1/7 : Copy of loan certificate dated 10.01.2017 with respect to the suit property by the plaintiff to AAR Kay Finlease Pvt. Ltd.
Ex. PW1/8 : Copy of Mortgage Agreement executed
between the plaintiff and AAR Kay
Finlease Pvt. Ltd.
Ex. PW1/9 : Copy of written complaint dated
06.01.2017
Ex. PW1/10 : Copy of letter dated 09.01.2017 to Sub
Registrar II, Janakpuri
Ex. PW1/11 : Copy of complaint dated 10.01.2017
addressed to DCP (West)
Ex. PW1/12 : Copy of complaint dated 23.01.2017
addressed to ACP Office Nangloi (West)
Ex. PW1/13 : Copy of civil suit bearing No. 386/2017
titled as "Satyarani Sharma vs. Shekhar
Bajaj"
Ex. PW1/14 : Copy of order of civil suit bearing No.
386/2017 titled as "Satyarani Sharma vs.
Shekhar Bajaj"
Ex. PW1/15 : Copy of letter dated 23.01.2017 seeking
clarification as to removal of electricity
meter in the name of Balbir Singh
Ex. PW1/16 : Copy of notice u/s 154 (3) Cr.P.C. dated
28.12.2016
Mark A : Copy of electricity bill dated 24.03.2014 in
the name of Balbir Singh bearing
connection BRPL CA No. 103175351
CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 12 of 53
9. The plaintiff in support of his case has also examined his wife Smt. Kavita Bajaj as PW2 and Sh. Sunil Kumar Rai, the loan consultant of AAR Kay Finlease Pvt Ltd. as PW3, who filed their evidence by way of affidavits Ex.PW2/A and Ex.PW3/A respectively whose testimonies shall be evaluated in the later part of the judgment.
10. On the other hand, the defendant no.1 in support of averments made in the written statement has examined herself as DW1 and filed her evidence by way of affidavit Ex.DW1/A in consonance of averments made in the written statement. During her deposition as DW1, she has relied upon and exhibited the following documents: Ex.DW1/1 : Copy of chain of property papers containing GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter, Will executed by Sh. Tarkeshwar Prasad Vidharthi in her favour Mark A : Copy of chain of property papers (Colly) containing GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter, Will executed by Sh. Vinod Kumar in favour of Sh. Tarkeshwar Prasad Vidharthi Mark B : Copy of chain of property papers (Colly) containing GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter, Will CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 13 of 53 executed by Sh. Pramod Paswan in favour of Sh. Vinod Kumar
11. Defendant no. 2 Sh. Kali Charan and defendant no. 3 Sh. Vijay Sharma have also examined themselves as DW2 and DW3 respectively and filed their evidence by way of affidavits Ex.DW2/A and Ex.DW3/A wherein they have deposed on the similar lines as deposed by defendant no. 1 in her examinationinchief.
12. I have heard the Ld. Counsel for the parties and perused the record carefully.
13. On the basis of material available on record, my issuewise findings are as under: Issue No. (i), (ii) and (iv) Whether the suit property bearing No. 56 & 57A, Khasra No. 3/8 and 13, Vikas Kunj, West Block, Uttam Nagar, New Delhi110059 is not the same property of which the defendant nos. 1 to 3 are owners and in possession of the same?
Whether the documents such as Agreement to Sell, Receipt and Affidavit, all dated 09.12.2014 are forged and fabricated and the same cannot be relied in view of being unregistered and unstamped?
CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 14 of 53 Whether the defendant nos. 1, 2 & 3 are the trespasser and are in illegal possession of the suit property ?
14. These issues are being taken up together as the same are interconnected and the discussion thereupon is going to be common. Onus to prove the Issue Nos. (i) & (ii) is on the defendant nos. 1 to 3. Though onus to prove the Issue No. (iv) has also been placed upon the defendant nos 1 to 3 but same appears to be a typographical mistake and onus to prove the said issue should have been placed upon the plaintiff as it is the case of the plaintiff that the defendants nos. 1 to 3 are trespassers and in illegal possession of the suit property.
15. In the present case, the plaintiff claims that he had purchased the suit property from defendant no. 5 Sh. Kuljit Singh in the name of his wife on 09.12.2014 vide GPA, Agreement to Sell, Affidavit, Will, Receipt, Possession Letter and, thereafter, he purchased the suit property from his wife vide similar set of documents on 30.03.2015. The plaintiff also claims that he is in possession of the suit property since its purchase on 09.12.2014 from its erstwhile owner Sh. Kuljit Singh (defendant no. 5 herein) and the same bears No. 56 and 57A in a colony CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 15 of 53 known as Vikas Kunj Extension, West Block, Uttam Nagar, New Delhi. It is further case of the plaintiff that the defendant nos. 1 to 3 have trespassed the suit property on 05.01.2017 and now they are in illegal possession of the suit property and falsely claiming their ownership over the same by giving it a false and incorrect number as Property/Plot No. 55B just in order to grab the suit property which belongs to him.
16. On the other hand, the defendant nos. 1 to 3 have denied the fact that they are trespassers and in illegal possession of the suit property bearing No. 56 and 57A and have claimed that they are owners and in possession of property No. 55B and they have nothing to do with the property No. 56 and 57A in respect of which the plaintiff has filed the present suit.
17. During course of the arguments, the Ld. Counsel for defendant nos. 1 to 3 while disputing the ownership of the plaintiff over the suit property has vehemently argued that the plaintiff has no locus standi to file the present suit because he is not the owner of the suit property. He contended that the documents relied upon by the plaintiff to claim his ownership over the suit property are forged, fabricated and CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 16 of 53 manufactured and not only this, the documents relied upon by the plaintiff which are GPA, Agreement to Sell, Will, Affidavit etc. cannot be considered as valid mode of transfer and the same will not confer any right, title or interest in the suit property in favour of the plaintiff. In this regard, he has heavily relied upon the judgment of the Hon'be Apex Court in Suraj Lamp & Industries (P) Ltd. vs. State of Haryana reported in 2012 (1) SCC 656. The Ld. Counsel further argued that even the plaintiff has failed to show that he has ever been in possession of the suit property, while the defendant nos.1 to 3 have successfully proved that they are the owners and in possession of property bearing Plot No. 55B which is a different and distinct property from the property claimed by the plaintiff in the present suit. He also submitted that in fact the plaintiff has not been able to prove that any property bearing No. 56 and 57A ever existed and the suit of the plaintiff is liable to be dismissed.
18. Per contra, Ld. Counsel for the plaintiff has argued that the plaintiff is the owner of the property No. 56 & 57A and in this regard he has placed on record the complete chain of ownership documents which starts from 1991 upto 2015 when he purchased the suit property. He CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 17 of 53 further submitted that the judgment of the Hon'be Apex Court in Suraj Lamp case has no retrospective effect and, therefore, sale transaction of an immovable property before the pronouncement of judgment in the year 2011 by virtue of GPA, Agreement to Sell, Affidavit, Will, Receipt, possession letter is a valid sale transaction and the said documents by virtue of which the title in the property has been transferred in favour of the purchaser shall be considered valid sale/transfer documents. He further submitted that the defendant nos. 1 to 3 have trespassed the property of the plaintiff in January 2017 and now they are claiming the same to be property bearing No. 55B to grab the property of the plaintiff and in fact the property illegally possessed by the defendant nos. 1 to 3 bears No. 56 and 57A which is owned by the plaintiff. He further submitted that the defendants have not been able to prove their claim of ownership over the property bearing No. 55B and consequently it is established that the property which are in illegal possession of the defendant nos. 1 to 3 bears No. 56 and 57A of which the plaintiff is the owner and hence the suit of the plaintiff is liable to be decreed.
CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 18 of 53
19. In view of aforesaid rival contentions of the parties and submissions made by the Ld. Counsel for the parties, in order to succeed in his case, it was incumbent upon the plaintiff to prove his ownership over the suit property which bears No. 56 and 57A, land admeasuring 50 sq. yards, Khasra No. 3/8 and 13, situated in the area of Village Razapur Khurd, Delhi in a colony known as Vikas Kunj, West Block, Uttam Nagar, New Delhi - 110059 and further that he remained in possession of the same until it was illegally trespassed by the defendant nos. 1 to 3.
20. The plaintiff has relied upon chain of ownership documents to show that how the suit property has changed hands and how he became the owner of the suit property. The first set of documents relied upon by the plaintiff are the sale/transfer documents of the suit property bearing No. 56 and 57A out of Khasra Nos. 3/8, 13, situated at Village Razapur Khurd, Delhi, colony known as Vikas Kunj, West Block, New Delhi, executed by Sh. Bansi Lal in favour of Smt. Madhuri Devi dated 12.06.1991 Ex.PW1/3 (Colly). Perusal of documents Ex.PW1/3 (Colly) shows that the same are General Power of Attorney, Affidavit, Agreement for Sale, Receipt, Will, all executed on 12.06.1991. The GPA CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 19 of 53 executed by Sh. Bansi Lal in favour of Smt. Madhuri Devi shows that the same does not bear signature of any witness. With regard to the document Agreement for Sale by which Sh.Bansi Lal had agreed to sell the suit property to Smt. Madhuri Devi for a sum of Rs. 12,500/, it is interesting to note that the said Agreement for Sale only bears the signatures of Sh. Bansi Lal as Party No. 1 and the same does not bear the signature or thumb impression of the second party i.e. Smt. Madhuri Devi who had entered into an agreement to purchase the suit property from Sh. Bansi Lal. There is also no witness to the said document. Another document in Ex.PW1/3 (Colly) is Receipt by which Sh. Bansi Lal had acknowledged the receipt of payment of Rs. 12,500/ from Smt. Madhuri Devi towards sale consideration amount. Again the said receipt does not bear signature of any witness. Further, in the Will executed by Sh. Bansi Lal in favour of Smt. Madhuri Devi, though one witness has put his/her signature but from the signature, the name of the witness is not deducible and his/her address is also not mentioned. In the absence of name and address of the attesting witness to the Will, the same cannot be considered as valid testamentary document. CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 20 of 53
21. It is also to be noted that all these documents in Ex.PW1/3 (Colly) are unregistered documents and the same are only notarized documents. Apart from these documents Ex.PW1/3 (Colly), there is no other document executed by Sh. Bansi Lal in favour of Smt. Madhuri Devi regarding sale of the property. One fails to understand that how the Agreement for Sale (one of the document in Ex.PW1/3 (Colly) executed between Sh. Bansi Lal and Smt. Madhuri Devi can be termed as Agreement to Sell unless it is signed by both the parties and how it is binding upon the second party i.e Smt. Madhuri Devi in the absence of her signature thereon. In the absence of signature of Smt. Madhuri Devi on Agreement for Sale, the same cannot be termed as Agreement to Sell and hence the said document cannot be considered as valid sale document.
22. The next set of ownership documents relied upon by the plaintiff are Ex.PW1/4 (Colly) executed by Smt. Madhuri Devi in favour of Sh. Balbir Singh, all dated 29.06.1992. The same consists of GPA, Agreement to Sell, Affidavit and Receipt. Perusal of said documents Ex.PW1/4 (Colly) shows that the said documents are again notarized CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 21 of 53 documents and are not registered with the Office of Sub Registrar. There is no witness to GPA executed by Smt. Madhuri Devi in favour of Sh. Balbir Singh. Another document is Agreement to sell executed by Smt. Madhuri Devi on 29.06.1992 in favour of Sh. Bansi Lal. This Agreement to Sell also does not bear the signature of second party i.e. Sh. Balbir Singh with whom the agreement has been entered into regarding sale of the property for a sum of Rs. 24,000/. The same also does not bear the signature of any witness. Therefore, in the absence of signature of second party, one fails to understand as to how this document would be considered as Agreement to sell in the eyes of law. Another documents to show transfer of property by Smt. Madhuri Devi in favour of Sh. Balbir Singh are Affidavit and Receipt. The Receipt does not bear signature of any witness. It is also to be noted that there is no Will in Ex.PW/1/4 (Colly) executed by Smt. Madhuri Devi in favour of Sh. Balbir Singh. Therefore, even these chain of ownership documents are not complete in the absence of Will leaving aside the fact that Agreement to Sell executed between Smt. Madhuri Devi and Sh. Balbir Singh is not admissible in the eyes of law.
CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 22 of 53
23. Another set of ownership documents relied upon by the plaintiff are GPA, Agreement to Sell & Purchase, Receipt, Affidavit, Will, Possession Letter, all dated 03.10.2012 executed by Sh. Balbir Singh in favour of Sh. Kuljit Singh which are Ex.PW1/5 (Colly). Again these are not registered documents and only have been notarized. In GPA, there are no signature of the witnesses. Though initial of witness no. 1 is there on the GPA but name and address of the witness is not mentioned. Therefore, it is not deducible that who is the witness to the said document. Similarly, Agreement to Sell executed between Sh. Balbir Singh and Sh. Kuljit Singh only bears initial of one witness without name and address. The Receipt also bears the signature of only one witness. Then there are Affidavit, Will and Possession Letter. The Will again does not bear signature of any attesting witness. Though in the column of witness no. 1, there is some initial but the name of the witness is not deducible. The address of the witness is also not mentioned. In these facts, the Will executed by Sh. Balbir Singh in favour of Sh. Kuljit Singh cannot be said to be a valid testamentary document.
CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 23 of 53
24. Thereafter, the plaintiff has relied upon the documents executed by Sh. Kuljit Singh in favour of his wife Smt. Kavita Bajaj Ex.PW1/1 (Colly) which are GPA, Agreement to sell, Receipt, Affidavit, Will, Possession letter, all dated 09.12.2014. Again these documents are not the registered documents and only notarized documents. Not only this, there are no attesting witness to the Will executed by Sh. Kuljit Singh in favour of Smt. Kavita Bajaj. Thus, in the absence of attesting witnesses to the said Will, the same is not a valid testamentary document.
25. The last set of documents relied upon by the plaintiff to show his ownership over the suit property are the sale/transfer documents executed by his wife Smt. Kavita Bajaj in his favour on 30.03.2015 consisting of GPA, Agreement to sell, Receipt, Will, Possession letter which are Ex.PW1/6 (Colly). The said documents are again unregistered documents. Not only this, all the documents except the Will bear only the initial of one witness without name and address and it is not clear as to who was the witness to the said documents.
26. So, these are the documents which have been placed on CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 24 of 53 record by the plaintiff to show chain of previous ownership over the suit property starting from 1991 upto 2015 when he purchased the suit property from his wife. However, these documents are defective in nature as noted herein above. Even if the discrepancies as noted above are ignored, still the said documents Ex.PW1/1 (Colly) to Ex.Pw1/6 (Colly), which are GPA, Agreement to Sell, Affidavit, Will, Receipt, Possession Letter being unregistered and unstamped documents cannot transfer title in an immovable property as per Section 54 of the Transfer of Property Act, 1882.
27. Section 54 of the Transfer of Property Act defines sale of an immovable property and reads as under: "Sale" defined "Sale" is a transfer of ownership in exchange for a price paid or promised or partpaid and partpromised. Sale how made - Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upward or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale - A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 25 of 53 property.
28. Thus, in view of provisions contained in section 54 of the Transfer of Property Act, which clearly demonstrate that title in an immovable property value of which is Rs. 100/ or upwards can be transferred only by a registered document. The documents Ex.PW1/1 (Colly) to Ex.PW1/6 (Colly) on the basis of which the plaintiff is claiming his ownership over the suit property being unregistered and unstamped documents cannot be said to be a valid sale transfer documents and the suit property cannot be said to be legally transferred/sold by virtue of these documents.
29. Furthermore, the Hon'ble Supreme Court in its judgment in Suraj Lamp & Industries (P) Ltd. vs. State of Haryana (cited supra) has declared the sale of an immovable property by virtue of GPA, Agreement to Sell, Affidavit, Will etc. as invalid sale transaction and held that an immovable property can be transferred/conveyed only by deed of conveyance/sale deed duly stamped and registered as required by law. The relevant paras of the said judgment are reproduced herein under: CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 26 of 53
13. 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 any agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section1A 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."
15. Therefore, an SA/GPA/will transaction does not covey any title nor creates any interest in an immovable property...."
16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transaction of the nature of "GPAS Sales" or "SA/GPA/will transfers" do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of 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."
30. In the present matter, admittedly no deed of conveyance or sale deed duly stamped and registered with the SubRegistrar has been placed on record by the plaintiff in order to prove that the property in dispute has ever been transferred. Therefore, in the absence of same, the documents relied upon by the plaintiff Ex.PW1/1 (Colly) to Ex.PW1/6 (Colly) are not worthy of any reliance because in view of the judgment of the Hon'ble Apex Court in Suraj Lamp case, they do not confer any right, title or interest in an immovable property. CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 27 of 53
31. Even if I accept the contention of Ld. Counsel for the plaintiff that the judgment of the Hon'ble Apex Court in 'Suraj Lamp case' (cited supra) has no retrospective effect and it applies only to the prospective sale of property after the pronouncement of judgment in the year 2011 and if the sale of a property has been carried out by way of GPA, Agreement to Sell, Affidavit, Will, Receipt, Possession letter before the year 2011, the same cannot be considered as invalid sale documents, still the sale documents placed on record by the plaintiff dated 03.10.2012 executed by Sh. Balbir Singh in favour of Sh. Kuljit Singh Ex.PW1/5 (Colly), the sale documents dated 09.12.2014 executed by Sh. Kuljit Singh in favour of Smt. Kavita Bajaj, the wife of the plaintiff Ex.PW1/1 (Colly) and the sale documents dated 30.03.2015 executed by Smt. Kavita Bajaj in favour of the plaintiff Ex. PW1/6 (Colly) are clearly hit by the judgment of the Hon'ble Apex Court in 'Suraj Lamp case' as at the time of execution of said documents, the said judgment had come into effect by which sale/transfer of a property by virtue of GPA, Agreement to Sell, Affidavit, Will, Receipt, Possession Letter has been declared to be invalid transfer and it has been CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 28 of 53 held that the said documents do not convey any right, title or interest in an immovable property in favour of the purchaser.
32. Furthermore, the plaintiff has not examined any of the parties to these documents, i.e so called vendors/purchasers namely, Sh. Bansi Lal, Smt. Madhuri Devi, Sh. Balbir Singh and Sh. Kuljit Singh to prove that the said documents Ex. PW1/1 to Ex.PW1/5 (Colly) were duly executed leaving aside the effect of non registration of documents as envisaged in Section 54 of Transfer of Property Act and also held by the Hon'be Supreme Court in Suraj Lamp case. For that reason also, the documents Ex. PW1/1 (Colly) to Ex.PW1/6 (Colly) cannot be relied upon as the same were not duly proved as per law, which otherwise are also defective as highlighted in the foregoing discussions and the same cannot be said to be complete and valid chain of documents.
33. The plaintiff has also placed on record Form P4 for the year 20062007 Ex. PW1/2 and claimed that from the said document it is clear that Mr. Bansi Lal was the landholder of the suit property who transferred the same in favour of Smt. Madhuri Devi. First of all, the said document Ex.PW1/2 has not been proved by the plaintiff in CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 29 of 53 accordance with law by summoning the witness from the concerned department. Secondly, the said document Ex.PW1/2 does not show in any manner that Sh. Bansi Lal was the owner of the suit property bearing No. 56 and 57A. Thirdly, apart from the name of Sh. Bansi Lal, it does not find mention any of the subsequent purchaser and, therefore, plaintiff cannot claim that by virtue of said document which was issued from the Office of Deputy Commissioner (West), the ownership over the previous owner over the suit property stands established.
34. As such, from the documentary evidence placed on record by the plaintiff, he has not been able to prove his ownership over the suit property. Now, let us examine the oral testimony adduced by the plaintiff to determine whether he has succeeded in proving his case.
35. While appearing in the witness box as PW1, the plaintiff reiterated in his examinationinchief that he purchased the suit property from Sh. Kuljit Singh on 09.12.2014 in the name of his wife Smt. Kavita Bajaj vide sale documents Ex.PW1/1 (Colly) and later on he purchased the suit property from his wife on 30.03.2015 vide sale documents Ex. PW1/6 (Colly).
CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 30 of 53
36. However, in the cross examination, PW1 (the plaintiff) stated that his wife has purchased the suit property in the year 2015 from Kuljit Singh contradicting his own statement made in examinationin chief where he stated that his wife had purchased the suit property on 09.12.2014. In reply to a question put to him whether he was present when the document Ex.PW1/1 was prepared and signed, PW1 stated that he was not present at that time. He further replied to a question put to him that he was aware about the preparation of documents as his wife has informed him. Voluntarily, he stated that at that time, he was in hospital. He stated that after executing the above said papers, he has got the possession of the same. He admitted that he has broken the lock which was there in the doors of the abovesaid property and removed the same and put his locks therein.
37. The aforesaid statement of the plaintiff reflects that he was not a witness to the documents Ex.PW1/1 (Colly) nor the said documents were prepared and signed in his presence. As per the plaintiff, he had broken the locks of the property and then took the possession of the same. It shows that even due possession was not CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 31 of 53 handed over to the wife of the plaintiff by the vendor. Had that been so, there was no need to break the locks of the property and took the possession of the same.
38. PW1 has further stated in his crossexamination that after getting the possession of the suit property, the same was with him for two years. He further stated that the possession of the suit property was with him till 05.01.2016. A specific question was put to him that can he show any document pertaining to the suit property like electricity bill, water bill, phone bill or any other type of document to show that he and his wife had the possession of the suit property for two years, to which he replied that he does not have any such document and he cannot produce or file any document before this Court. In reply to a question put to him regarding address of the suit property, he stated that address of the suit property is Vikas Kunj, House No. 5657A, Near Sainik Public School, Delhi. He admitted that the address which he has stated above of the suit property has only this address. He again said that the address of the suit property is 56A57A. He further admitted that the said address of the suit property is not known by any other address. This CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 32 of 53 statement of the plaintiff shows that the plaintiff himself is not sure about the address of the suit property, whether it bears No. 5657A or 56A - 57A. While in the plaint, the plaintiff has give the description of the suit property as property bearing No. 56 and 57A, land admeasuring 50 sq. yards, Khasra No. 3/8 and 13, situated in the area of Village Razapur Khurd, Delhi in a colony known as Vikas Kunj, West Block, Uttam Nagar, New Delhi - 110059, while in the crossexamination, the plaintiff is giving a different address of the suit property. Even he did not say that the suit property falls in Khasra No. 3/8 and 13, situated in the area of Village Razapur Khurd, Delhi in a colony known as Vikas Kunj, West Block, Uttam Nagar, New Delhi - 110059 as asserted by him in his plaint or affidavit in evidence. Rather he stated that said address of the suit property 56A57A is not known by any other address.
39. The plaintiff has also examined his wife Smt. Kavita Bajaj as PW2 who in her examinationinchief has deposed as per the averments made in the plaint. In her crossexamination, PW2 stated that the purchase papers of the suit property were prepared in Janak Puri, Tehsil where Kuljit Singh, Arun Jain and one Mr Walia were present CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 33 of 53 and apart from these persons no other know person was present there. She further stated that when these papers were prepared, her husband was in the house as he was not well. Whereas as per PW1, at the time of execution of documents Ex.PW1/1, he was in the hospital. PW2 further stated that she took the possession of the suit property on next day of the purchase of the same. She further stated that the property was locked by the lock of Kuljit Singh and the lock was opened by the keys given by Kuljit Singh. She further stated that she has changed the earlier locks with her locks and at that time, Kuljit Singh was not present there. She further stated that she came to know that she has been dispossessed from the suit property when her husband went to the suit property in January 2017. She further categorically stated that she does not have any document to show that she was in possession of the suit property.
40. The aforesaid statement of PW2 Smt. Kavia Bajaj (the wife of the plaintiff) is in sharp contraction to the statement of PW1 (the plaintiff). As per PW2, she took the possession of the suit property on the next day of its purchase and at that time the property was locked by the lock of seller/vendor Sh. Kuljit Singh and she opened the locks with CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 34 of 53 the keys given by Kuljit Singh and then she put her own locks, while PW1 (the plaintiff) stated in his crossexamination that he broke open the locks and then took the possession of the suit property. Similarly, as per PW2, at the time of preparation of purchase documents Ex.PW1/1, her husband was at home, while as per PW1 he was in hospital at that time. As such, both the plaintiff and his wife are making contradictory statement to each other. PW2 also stated that she does not have any document to show that she was in possession of the suit property.
41. The aforesaid evidence led by the plaintiff shows that both the plaintiff and his wife have not been able to produce any single document to prove their possession over the suit property despite their claim that the suit property remained under their possession for two years.
42. As per the case of the plaintiff, he took the peaceful possession of the suit property from earlier owner Sh. Kuljit Singh on 09.12.2014 when he purchased the property in his wife's name and since then he was enjoying the rights of the suit property and had shifted his personal belongings and valuable goods in the suit premises. The CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 35 of 53 plaintiff also asserted that he and his family members have been regularly making visits at the suit property for conducting pooja on the festivals. If that was so, then there must have been electricity and water connection etc in the suit property but the plaintiff has not placed on record any iota of evidence in the form of electricity bill, water bill or any other document to show that the property was in his physical possession or possession of his wife. Even the plaintiff has not examined any witness to prove his possession over the suit property.
43. The plaintiff in support of his case that he is the owner of the suit property and being owner of the same, he has mortgaged the suit property against a loan has also examined Sh. Sunil Kumar Rai, the loan consultant of AAR Kay Finlease Pvt. Ltd as PW3 who has deposed in his examinationinchief by way of affidavit that Sh. Shekar Bajaj has applied for loan of Rs.10,00,000/ on 11.04.2015 with Aar Kay Finlease Pvt. Ltd by placing the suit property/land i.e. property bearing No. 56 and 57A, land admeasuring 50 sq. yards, Khasra No. 3/8 and 13, situated in the area of Village Razapur Khurd, Delhi in a colony known as Vikas Kunj, West Block, Uttam Nagar, New Delhi - 110059 as a mortgage CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 36 of 53 with the company. He has further deposed that as per the information contained in Form P4 of the year 20062007, one Mr. Bansi Lal S/o Ram Lubhaya was the land holder of the suit propriety who had transferred the suit property to Mrs. Madhuri Devi. He has further deposed that during physical inspection of the suit property, the same was found locked and upon inquiry from the neighbour adjacent to the suit, it was discovered that said property belongs to Sh. Balbir Singh. He further deposed that the suit property which was mortgaged by the Shekhar Bajaj is the same property in which Smt. Satya Rani Sharma, Sh. Kali Charan and Sh. Vijay Sharma are having possession presently.
44. In the crossexamination, PW3 Sh. Sunil Kumar stated that their company provides the loans against the property which have any registered documents in property chain. If that was so, it is not understandable as to how the company has sanctioned the loan to the plaintiff because there is not a single document which is registered document in the chain of documents relied upon by the plaintiff to claim his ownership and possession over the suit property. PW3 further stated that he does not recollect the exact address of the property on which loan CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 37 of 53 was granted. He further stated that the plaintiff or any of his family members were not residing when they inspected the property. He further stated that he has not stated in his affidavit that the suit property is the same where Smt. Satya Rani Sharma, Kali Charan and Vijay Sharma are residing. This statement of PW3 contradicts his version as made by him in para no. 5 of his affidavit in evidence. Therefore, testimony of this witness is not trustworthy and of no help to the case of the plaintiff. The said witness could not tell the address of the property on which loan was granted to the plaintiff. Further when he visited the suit property for inspection, he did not find the plaintiff or his family members residing in the suit property. Merely because the AAR Kay Finlease Pvt. Ltd has provided the loan to the plaintiff against mortgage of the suit property does not prove the title of the plaintiff over the property in question.
45. Thus, from the oral evidence so led by the plaintiff, he has not been able to prove his ownership over the suit property. The plaintiff even has not been able to show that he was ever in possession of the suit property.
46. Now, let us discuss the evidence led by the defendant nos. 1 CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 38 of 53 to 3.
47. The defendant no. 1 who has examined herself as DW1 had deposed in her evidence by way of affidavit that she is the absolute owner of the property bearing No. 55B, Vikas Kunj Extension, West Block, Uttam Nagar, New Delhi - 110059 and in possession of the same having purchased the same from Sh. Tarkeshwar Prasad Vidharhi on 06.01.2016. She has further deposed that she has paid an amount of Rs. 5,10,000/ to Sh. Tarkeshwar Prasad Vidharthi at the time of execution of the property papers. She has further deposed that the plaintiff has filed the present suit against the property bearing Plot No. 56 and 57 A Khasra No. 3/8 and 13, Vikas Kunj, West Block, Uttam Nagar, New Delhi - 110059 and both the properties are different and distinct from each other. She has also placed on record the copy of sale documents containing GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter, Will executed by Sh. Tarkeshwar Prasad Vidharthi in her favour as Ex.DW1/1, copy of sale documents containing GPA, Agreement to sell, Affidavit, Receipt, Possession Letter, Will executed by Sh. Vinod Kumar in favor of Sh. Tarkeshwar Prasad Vidharthi as CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 39 of 53 Mark A (Colly) and copy of sale documents containing GPA, Agreement to sell, Affidavit, Receipt, Possession Letter, Will executed by Sh. Pramod Kumar in favour of Sh Vinod Kumar as Mark B (Colly).
48. In her crossexamination, DW1 (the defendant no. 1) stated that she does not know about the fact that if Tarkeshwar Prasad Vidharthi was owner of property bearing plot No. 55B. The full address of her property is 55B, Vikas Kunj. She further stated that she does not know that if Tarkeshwar Prasad Vidharthi was having possession of any document which can show that he was owner of the property. She further stated that she does not have originals of the property transfer documents executed between Sh. Vinod Kumar and Tarkeshwar Prasad Vidharthi and also executed between Parmod Paswan and Sh. Vinod Kumar. She could not admit or deny whether Tarkeshwar Prasad Vidharthi does not exist at all.
49. The aforesaid crossexamination of DW1 clearly reflect that she has not been able to prove ownership over the property No. 55B . She was not aware of the fact that if Tarkeshwar Prasad Vidharthi was the owner of the property from whom she has claimed to have CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 40 of 53 purchased the property bearing Plot No. 55B. She even did not know that he was having any document showing his ownership nor she has original of the property transfer documents executed between Sh. Vinod Kumar and Tarkeshwar Prasad Vidharthi and between Parmod Paswan and Sh. Vinod Kumar.
50. DW2 Sh Kali Charan Sharma who is son of defendant no. 1 has deposed on the similar lines as deposed by her mother DW1 in her examination in chief. In the crossexamination, he categorically stated that he is not witness to the documents prepared and executed in favour of his mother. He denied the suggestion that he was not present when the aforesaid documents were prepared and executed between his mother and Mr. Tarkeshwar Prasad Vidharthi and i.e. why the said documents do not bear his signature as a witness. He further stated that Tarkeshwar Prasad did not show any document showing his possession in the property at the time of execution of title documents in favour of his mother. (Voluntarily he stated that he had shown him the said property twice or thrice and they entered the said property after the locks was opened by Mr. Tarkeshwar Prasad). He further stated that no electricity CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 41 of 53 connection was installed at the said property and the same was installed by his mother.
51. From the testimony of this witness (DW2) as well, the ownership of defendant no. 1 over the property bearing Plot No. 55B is not proved because he was not a witness to the documents prepared and executed in favour of his mother nor any possessory document has been shown by Tarkeshwar Prasad to him.
52. DW3 who is another son of defendant no. 1 has deposed on the similar lines as deposed by DW2. In his crossexamination, DW3 stated that he does not know Tarkeshwar Prasad Vidharthi nor he was present at the time of execution of property transfer documents dated 06.01.2016 executed between Tarkeshwar Prasad Vidharthi and his mother Satya Rani Sharma. He further stated that the consideration amount of Rs. 5,10,000/ was not given to Tarkeshwar Prasad Vidharthi in his presence. He does not have any extra document showing the possession of alleged previous owners to the date of 06.01.2016. He admitted that he is not aware about execution of property transfer documents dated 06.01.2016.
CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 42 of 53
53. Therefore, testimony of this witness is also no help to the case of the defendants as he was not present at the time of execution of documents nor he was aware about the same.
54. It may be noted here that the documents relied upon by the defendants are also unregistered and unstamped documents and are only notarized documents. Therefore, the said documents are also hit by the judgment of the Hon'ble Supreme Court in 'Suraj Lamp case' and cannot be considered as valid sale documents to claim the ownership over the property No. 55B.
55. As such, the defendant no. 1 to 3 also neither from documentary evidence nor by way of oral testimony could prove their claim that the defendant no. 1 is the owner of the property No. 55B having purchased the same from Tarkeshwar Prasad Vidharthi vide documents Ex.DW1/1 (Colly). The defendant no. 1 was not having original of complete chain of documents. Furthermore, these documents are also hit by judgment of Hon'ble Apex Court in Suraj Lamp case.
56. Now, in the peculiar circumstances, where both the parties have not been able to prove title/ownership over the property claimed by CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 43 of 53 them, can it be said that the plaintiff has succeeded in proving his ownership over the property on account of failure of defendants to prove their ownership as also argued by the Ld. Counsel for the plaintiff. The answer lies in negative.
57. Of course, the defendant nos 1 to 3 have not been able to prove their ownership over the property No. 55B but the plaintiff cannot succeed on the weakness of case of the defendants and it was for the plaintiff to prove the assertions made in the plaint.
58. It has been held by the Hon'ble Supreme Court in "The City Municipal Council Bhalki Vs. Gurappa & Others, Civil Appeal Nos. 80448048 of 2015 (Arising out of SLP (C)Nos. 2156121565 of 2005), decided on 29.09.2015 as under: "It is a settled position of law that in a suit for declaration of title and possession, the onus is upon the Plaintiff to prove his title. Further, not only is the onus on the Plaintiff, he must prove his title independently, and a decree in his favour cannot be awarded for the only reason that the Defendant has not been able to prove his title, as held by this Court in the case of Brahma Nand Puri Vs. Neki Puri, AIR 1965 SC 1506: (1965) 2 SCR 233 as under:
... the Plaintiff's suit being one for ejectment he has to succeed or fail on the file that he establishes and if he cannot succeed on the strength of his title his suit must fail CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 44 of 53 notwithstanding that the Defendant in possession has no title to the property.....
The same view has been reiterated by this Court in the more recent case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple & Another, AIR 2003 SC 4548; (2004) 6 JT 442: (2004) 136 PLR 612: (2003) 8 SCALE 474: (2003) 8 SCC 752: (2003) 4 SCR 450 Supp: (2003) AIRSCW 5316: (2003) 8 Supreme 193 as under:
In a suit for recovery of possession based on title it is for the Plaintiff to prove his title and satisfy the Court that he, in law, is entitled to dispossess the Defendant from his possession over the suit property and for the possession to be restored with him. .......... In our opinion, in a suit for possession based on title once the Plaintiff has been able to create a high decree of probability so as to shift the onus on the Defendant it is for the Defendant to discharge his onus and in the absence thereof the burden of proof lying on the Plaintiff shall be held to have been discharged so as to amount to proof of the Plaintiff's title."
59. In view of law laid down by the Hon'ble Supreme Court in the aforesaid authority, in a suit for possession of property on the basis of title over the same, the plaintiff is required to prove his case and has to stand on his own legs. Even if the defendants have not been able to prove ownership over the suit property, the plaintiff cannot be said to have succeeded in establishing his title to the suit property without proving the title documents in his favour. Since the plaintiff has failed to prove title documents Ex.PW1/1 (Colly) to Ex.PW1/6 (Colly) as per law CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 45 of 53 coupled with the fact that the said documents are not complete and valid mode of transfer, he cannot be said to be the owner of the suit property
60. Now, question arises as to whether the suit property bears No. 5657A, land admeasuring 50 sq. yards, Khasra No. 3/8 and 13, situated in the area of Village Razapur Khurd, Delhi in a colony known as Vikas Kunj, West Block, Uttam Nagar, New Delhi 110059 and the defendant no. 1 to 3 have trespassed the same and are in illegal possession of the same as claimed by the plaintiff or the property which is in possession of the defendants bears No. 55B, Vikas Kunj, West Block, Uttam Nagar, New Delhi 110059 and is a separate property from the property in question as contended by the defendant nos. 1 to 3.
61. The onus was upon the plaintiff to prove that the suit property bears No. 56 and 57A, land admeasuring 50 sq. yards, Khasra No. 3/8 and 13, situated in the area of Village Razapur Khurd, Delhi in a colony known as Vikas Kunj, West Block, Uttam Nagar, New Delhi - 110059 and the same is owned by him and he remained in possession of the same till the same was trespassed by the defendant nos. 1 to 3. The plaintiff, however, has miserably failed to prove the same. As already CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 46 of 53 held in foregoing discussions that the title documents relied upon by the plaintiff are not only defective but the same are also invalid sale documents and do not create any right in the suit property in favour of the plaintiff. The plaintiff even has not been able to show any single document to show his possession over the property No. 5657A, land admeasuring 50 sq. yards, Khasra No. 3/8 and 13, situated in the area of Village Razapur Khurd, Delhi in a colony known as Vikas Kunj, West Block, Uttam Nagar, New Delhi 110059 at any point of time. The testimony of the plaintiff is very vague and not reliable as he does not know the correct address and number of the property in question for which he has claimed possession.
62. The plaintiff has also not been able to produce any single document to show that property possessed by defendant nos. 1 to 3 bears No. 5657A, land admeasuring 50 sq. yards, Khasra No. 3/8 and 13, situated in the area of Village Razapur Khurd, Delhi in a colony known as Vikas Kunj, West Block, Uttam Nagar, New Delhi 110059. Rather the plaintiff has placed on record some documents showing that the property in the possession of the defendant nos. 1 to 3 bears No 55B, CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 47 of 53 Vikas Kunj, West Block, Uttam Nagar, New Delhi 110059 viz copy of Aadhar card of the defendant no. 1 issued on 06.01.2017 which shows the address of defendant no. 1 as 55B, Vikas Kunj Extension, Uttam Nagar, West Block, New Delhi, copy of Election I Card of defendant no. 1 issued on 26.08.2018 which again shows her address as 55B, Vikas Kunj Extension, Vikas Nagar, Delhi, copy of Receipt issued by Timurti Gas Service dated 20.09.2016 again in the name of defendant no. 1 showing the same address as 55B, Ground floor, Vikas Kunj Extension, Uttam Nagar, New Delhi and copy of electricity bill dated 08.11.2016 in the name of defendant no. 1 again showing the address as 55B, Vikas Kunj Extension, West Block, Uttam Nagar, New Delhi.
63. All these documents filed by the plaintiff himself shows the address of property in possession of defendant no. 1 as 55B, Vikas Kunj Extension, West Block, Uttam Nagar, New Delhi as claimed by the defendant nos. 1 to 3. These documents cannot be said to have been manufactured because the plaintiff has claimed that defendant nos. 1 to 3 have trespassed his property on 05.01.2017 and these documents were prepared prior to the said date. Though there is also no clinching CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 48 of 53 evidence produced by the defendant nos. 1 to 3 to show that the property in their possession bears No. 55B, Vikas Kunj Extension, West Block, Uttam Nagar, New Delhi, but on the preponderance of probabilities, the defendant nos. 1 to 3 have been able to show that they are in possession of property No. 55B, Vikas Kunj Extension, Uttam Nagar, New Delhi.
64. In the light of aforesaid discussions, I have no hesitation to hold that the plaintiff has miserably failed to prove that the defendant nos. 1 to 3 are in possession of property no. 56 and 57A, Vikas Kunj Extension, Uttam Nagar, New Delhi. On the other hand, on the basis of aforenoted documents, the defendant nos. 1 to 3 appears to be in possession of property No. 55B, Vikas Kunj Extension, West Block, Uttam Nagar, New Delhi, though they have failed to prove ownership over the same. Hence, issue no. (i) is partly decided in favour of defendant nos. 1 to 3 to the extent that the defendant nos. 1 to 3 are not in possession of suit property. Under Issue No. (ii), since it has already come on record that the title documents filed by the plaintiff dated 09.12.2014 being unregistered and unstamped documents cannot be relied upon to claim the ownership of the plaintiff and his wife over the CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 49 of 53 suit property. Hence, this issue is decided against the plaintiff. Since the plaintiff has failed to prove his ownership over the suit property or possession thereof, while the defendant no.s 1 to 3 have been able to show on preponderance of probabilities that they are in possession of property No. 55B, Vikas Kunj Extension, West Block, Uttam Nagar, New Delhi which is a different property from Property No. 56 and 57A, land admeasuring 50 sq. yards, Khasra No. 3/8 and 13, situated in the area of Village Razapur Khurd, Delhi in a colony known as Vikas Kunj, West Block, Uttam Nagar, New Delhi - 110059, therefore it cannot be said that they have trespassed the suit property or are in illegal possession of the same. Hence, issue no. (iv) is decided against the plaintiff and in favour of the defendant nos. 1 to 3.
Issue No. (iii) Whether the suit has been under valued for the purpose of jurisdiction and court fees?
65. The onus to prove this issue is on the defendant nos. 1 to 3. They have taken a plea in their written statement that the suit has not been properly valued for the purposes of court fee and jurisdiction. However, except taking a vague and bald plea, the defendant nos. 1 to 3 CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 50 of 53 have not disclosed as to how the court fee paid by the plaintiff for the reliefs prayed in the plaint is deficient and what court fee ought to have been paid by the plaintiff. The defendant nos. 1 to 3 have also not led any evidence to show that the court fee filed by the plaintiff is deficient at the time of filing the present suit qua each relief sought. Rather they remained silent and did not make a single whisper in their evidence by way of affidavit that the suit filed by the plaintiff is undervalued for the purposes of curt fees and jurisdiction. Even not a single suggestion has been put to plaintiff witnesses in this regard. In the absence of any evidence, it cannot be said that the present suit has not been properly valued for the purposes of court fees and jurisdiction. Hence, this issue is decided against the defendant nos. 1 to 3.
Issue no. (v) (Whether the plaintiff is entitled to the decree of possession of the suit property, as prayed for? )
66. Since I have already held under issue no. (i), (ii) and (iv) that the plaintiff has failed to prove his ownership over the suit property by virtue of title documents Ex.PW1/1 (Colly) to Ex. PW1/6 (Colly), the plaintiff cannot be said to be entitled to decree of possession of the suit CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 51 of 53 property. Hence, this issue is decided against the plaintiff.
Issue no. (vi) (Whether the plaintiff is entitled to the decree of permanent and mandatory injunction, as prayed for?) .
67. As plaintiff has failed to prove his ownership over the suit property as well as his possession over the same and further that the defendant nos. 1 to 3 are in illegal possession of the suit property as discussed herein above under Issue No. (i), (ii) and (iv), the plaintiff cannot be said to be entitled to decree of permanent injunction as prayed for. Hence, this issue is also decided against the plaintiff.
Issue no. (vii) Whether the plaintiff is entitled to mesne profits in respect of the suit property. If so, for which period and on what date? OPP.
68. In view of my findings under Issue No. (v) to (vi), the plaintiff is not entitled to mesne profits as prayed for. Hence, this issue is decided against the plaintiff.
RELIEF
69. As a sequel to my findings under Issue Nos.(i) (ii) & (iv) to CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 52 of 53
(vii), the suit filed by the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly.
70. File be consigned to Record Room after necessary compliance.
Announced in the open Court (Balwant Rai Bansal) th on 8 April, 2019 Addl. District Judge05 (SouthWest) Dwarka Courts, New Delhi CS No. 452/17 Shekhar Bajaj vs. Satya Rani Sharma & Ors. Page 53 of 53