IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI New No. 14134/16 In re : 1. Sh. [ENTITY] 2. Sh. [ENTITY] 3. Sh. [ENTITY] All sons of late Sh. [ENTITY] R/o: IIIrd C-34/B, Nehru Nagar Ghaziabad, U. P. Plaintiffs Versus 1. Sh. [ENTITY] (Since deceased through his Legal Heirs) 1(a) [ENTITY] S/o Late Sh. [ENTITY] 1(b) [ENTITY] S/o Late Shri [ENTITY] 1(c) [ENTITY], D/o Late Sh. [ENTITY] 1(d) [ENTITY] D/o Late Sh. [ENTITY] All resident of R/o : 61/41 Punjabi Bagh, Opp. Punjabi Bagh Club, New Delhi-110026 2. Smt. [ENTITY] (Since deceased) W/o Late Shri Lal Chand Anand R/o 61/41, Punjabi Bagh, New Delhi-1100026 Defendants SUIT FOR DECLARATION FOR CANCELLATION OF DOCUMENTS, MANDATORY INJUNCTION FOR RETURN OF ORIGINAL DOCUMENTS AND PERMANENT INJUNCTION ETC. [PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 1 of 21 Date of institution of present suit : 14.01.1999 Date of receiving in this court : 22.03.2016 Date of reserving order : 07.09.2016 Date of Judgment : 07.09.2016 JUDGMENT
Brief facts necessary for the disposal of the case is that plaintiffs filed the suit for cancellation of documents, mandatory injunction and permanent injunction submitting therein that plaintiffs are real brother and sons of Late [ENTITY]. Defendant no. 1 was the real paternal uncle of the plaintiffs and defendant no. 2 was their grandmother. Father of the plaintiff Late [ENTITY] purchased/acquired land and structure thereon admeasuring 5 bighas 19 biswas bearing Khasra No. 848 Min (3-0), 849 Min (2-19) situated in village Dera Mandi, Tehsil Hauz Khas, New Delhi from M/s Motor and General Finance Company Ltd vide sale deed dt. 27.10.1986 hereinafter referred to as suit property/land and was mutated in the records of Tehsil in the name of father of the plaintiffs.
2. Defendant no. 1 was entrusted with the original sale deed of the suit land by the father of the plaintiff for getting the said land mutated in the record of Tehsil as defendant no. 1 was resident of Delhi while plaintiffs were residing at Ghaziabad. Defendant no. 1 had in fact issued a receipt to that effect on 12.12.1986 on the letter pad of his company. Father of the plaintiff expired in July, 1992 and suit land devolved upon the plaintiffs which was mutated jointly in the name of the plaintiffs on 14.09.1992 in the Revenue records. On December, 15th 1998, plaintiff received anonymous call inquiring about the sale of the land and legal title of Sh. [ENTITY] to sell the said land. Plaintiffs were alarmed and inquiries were made whereupon plaintiff came to know that defendant no. 1 had got made a general power of attorney purportedly signed by plaintiffs in favour of defendant no. 2 on 26.09.1997 and on the basis of said power of attorney had got 11 sale deeds made/executed in his name and as such got the suit property transferred in his own name on 10.10.1987. The value of [PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 2 of 21 each of sale deeds for 550 square yards was Rs. 68,500/-. The General Power of Attorney allegedly in favour of defendant no. 2 was not a registered document and the market value of the land was over Rs. 1.5 crore as has been assessed by Income Tax Department whereby income tax clearance certificate for sale of the said property was issued. Plaintiffs got an FIR registered against the defendants bearing FIR No. 19/99 wherein both the defendants were chargesheeted. Hence, the plaintiffs have filed the present suit for declaration of the sale deeds and the General Power of Attorney in favour of defendant no. 1 and 2 respectively as null and void with prayer for mandatory injunction thereby seeking direction to defendants to return the original sale deed dated 27.10.1986 to the plaintiffs and relief of permanent injunction has also been prayed for.
3. Upon service of defendants, both the defendants filed their respective written statements wherein common plea and objection have been taken. It has been objected that the suit filed by the plaintiff without the relief of possession was not maintainable. It has been submitted that the suit property has been under possession of company of the defendant No.1 namely M/s [ENTITY] & Sons Pvt. Ltd. It has been further submitted that when M/s R.P.Anand and Sons Pvt Ltd was raising construction in the suit property, Municipal Corporation of Delhi issued show cause notice dated 23.02.1997 to the defendant no. 1 and sealed the premises. It was the defendant no. 1 which filed writ petition and obtained the relief. The defendant no. 1 has been in possession and therefore suit was not maintainable without the relief of possession. It has been further submitted that company of defendant no. 1 incurred the expenditure of Rs. 2,25,912/- in the year 1997 and Rs. 6,06,883.48/- in the year 1998 for raising construction on the suit property.
4. On merits it has been submitted that suit property was purchased by father of the plaintiff for the benefit of defendant no. 1 as at that time defendant No.1 was running short of money and therefore he had requested his brother Sh. [ENTITY] to purchase the property for him and as and when he [PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 3 of 21 would return the purchase amount, father of the plaintiff would execute the sale deed in his favour. A memorandum dated 30.12.1998 was executed by [ENTITY] regarding the fact that land had been purchased at the instance of Sh. [ENTITY] for his benefit and that Sh. [ENTITY] had agreed to pay back the sale consideration either by developing the sale land or by tendering the amount. It has been further pleaded that there was credit balance of Rs. 3,78,977/- with M/s Vijay Magnasites Pvt. Ltd. and an amount of Rs. 85,000/- with Mr. [ENTITY] which was adjusted towards the sale consideration of the suit land and remaining amount of consideration i.e. Rs. 1,90,523/- along with interest was payable by Sh. [ENTITY]. The sale deed favouring Sh. [ENTITY] was allowed to be retained by Sh. [ENTITY] and possession of the suit property was handed over to Sh. [ENTITY] and the same was being guarded by the staff of the defendant no. 1. Since land was purchased at the instance of defendant no. 1 and was meant for him, defendant no. 1 through his company M/s [ENTITY] & Sons Pvt. Ltd. planned a complex of residential flats by the name of "[ENTITY]" on the suit land. Defendant no. 1 through his company incurred expenditure of Rs. 2,25,912 and Rs. 6,06,883/- in the year 1997 and 1998 for raising construction. MCD took action by issuing show cause notice dated 23.02.1997 against M/s [ENTITY] & Sons Pvt. Ltd. under [SECTION] [ACT]. M/s [ENTITY] & Sons Pvt. Ltd. filed appeal and contested the matter. The said M/s [ENTITY] & Sons Pvt. Ltd. had also filed writ petition before the Hon'ble High Court and thus the possession was always with defendant no. 1 through his company M/s [ENTITY] & Sons Pvt. Ltd. The defendant no. 1 had also obtained telephone and electricity connection in his own name on the said land. After the demise of Sh. [ENTITY], defendant no. 1 approached the plaintiffs with the remaining amount of consideration and asked them to execute the sale deed of the suit land in favour of defendant no. 1 but plaintiffs put off the mater which culminating into dispute between plaintiffs and defendant No.1.
5. The dispute between the plaintiffs and defendant no. 1 lingered on [PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 4 of 21 till the year 1997 when the mother of the defendant no.1 i.e. defendant no. 2 called a joint meeting at her residence to sort out the matter between the plaintiff and defendant no. 1 and in this meeting two groups were formed one of which consisted of defendant no. 1 and his brother [ENTITY] and other group consisted of plaintiffs. In this joint meeting the demand of the plaintiffs for additional consideration for execution of sale deed of suit land in favour of defendant no. 1 was acceded to by the group consisting of [ENTITY] and defendant no. 1. [ENTITY] agreed to leave his share in favour of plaintiffs in the agricultural land situated at Mohan Nagar and another at village Nand Gram, Ghaziabad and 50% share in the industrial property of UPSIDC, Ghaziabad. It was agreed that defendant no. 1 would tender an additional consideration of Rs. 3,48,652/- apart from remaining amount of Rs. 1,90,523/- along with 10% interest from the year 1986 to the plaintiff for execution of sale deed of the suit land in his favour. To avoid any misgivings and to ensure that compromise arrived at between the parties was adhered to, both the groups agreed to execute a General Power of Attorney in favour of Smt. [ENTITY] defendant no. 2 authorising her to deal/transfer the properties agreed to in the compromise to the respective parties.
6. Pursuant to this agreement plaintiff brought a General Power of Attorney dated 26.09.1997 executed in favour of defendant no. 2 and handed over the same to her authorising her to sell/transfer the suit property. Similarly, Sh. [ENTITY] also executed General Power of Attorney dated 26.09.1997 in favour of defendant no. 2 to do the needful in favour of plaintiffs. Pursuant to the compromise defendant no. 1 tendered a total amount of Rs. 7,48,750/- to defendant no. 2 on which defendant no. 2 executed the sale deeds dated 10.10.1997 of the suit property in favour of defendant no. 1. However, despite repeated requests, plaintiffs did not get the sale deed executed of the properties at Ghaziabad in their name and also did not collect the amount of consideration from defendant no. 2. On inquiries plaintiffs failed to give any specific answer and later on plaintiffs raised fresh additional demand for some more money [PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 5 of 21 allegedly needed by them for the purchase of stamp duty papers required for execution of the sale deed for aforesaid properties at Ghaziabad. On refusal, plaintiff threatened to break the compromise and stated that they would get the sale deeds of the suit property standing in the name of answering defendant declared as null and void. Rest of the contents of the plaint have been denied by the defendants. In the written statement defendant no. 2 has made the similar submission as has been made by defendant no. 1.
7. Plaintiff filed replication to the written statements of defendant no. 1 as well as of defendant no. 2 and thereby denying the contents of the written statements and reiterating the averrment made in the plaint.
8. On the pleadings of the parties, following issues were framed vide order dated 11.05.2006:
1. Whether the suit of the plaintiffs for declaration without seeking consequential relief of possession is maintainable? OPP
2. Whether the plaintiffs are in possession of any part of the suit property? OPP
3. Whether the suit of the plaintiffs is without cause of action? OPP
4. Whether the suit property devolved upon the plaintiffs after the death of Sh. [ENTITY]? OPP
5. Whether the suit has been properly valued for the purposes of court fee and jurisdiction? OPP
6. Whether a Memorandum dated 30.12.1988 was entered into between Sh. [ENTITY] (now deceased) and the defendant no. 1, if so, its effect? OPD
7. Whether the plaintiffs are entitled for the relief as prayed in the plaint? OPP
8. Relief.
9. During the proceedings of the suit, defendant no 2 expired.
[PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 6 of 21 However, her legal heirs were not substituted in place of the said defendant and the suit was ordered to have abated against defendant no. 2 vide order dated 27.05.2008. Thereafter, defendant no. 1 also expired and his LRs were brought on record.
10. In support of their case, plaintiffs examined plaintiff no. 1 as PW-1 who tendered his evidence by way of affidavit in examination-in-chief Ex. PW1/A. He relied upon documents i.e. letter Ex. PW1/1, copy of [ENTITY] Ex. PW1/2, copy of [ENTITY] Ex. PW1/3, copy of sale deed Ex. PW1/4, General Power of Attorney Ex. PW1/5, copy of order dated 30.08.1994 Ex. PW1/6, copy of FIR No. 19/99 Ex. PW1/7, copy of complaint on the basis of which FIR was registered Ex. PW1/8, copy of press notice Ex. PW1/9 and Ex. PW1/10, photographs Ex. PW1/11 and Ex. PW1/12. He was cross-examined by the defendants. After which, plaintiffs' evidence was closed.
11. In support of their case, defendants examined Sh. [ENTITY] as DW1 who tendered his evidence by way of affidavit in examination-in-chief as Ex. DW1/A. He was cross-examined by the plaintiffs. Defendants examined Sh. [ENTITY] as DW-2 who tendered his evidence by way of affidavit in examination-in-chief as Ex. DW2/A. He also relied upon photocopy of Memorandum of Understanding dated 30.12.1988 executed between Sh. [ENTITY] and Sh. [ENTITY] as Ex. DW2/1. He was cross-examined by the plaintiffs. After which, defendants' evidence was closed.
12. Counsel for plaintiff and LRs of defendant No.1 were heard at length. Upon perusal of pleadings, evidence and other material available on record and after appreciating arguments of respective counsel, issuewise findings are as under:-
ISSUE NO. 3: Whether the suit of the plaintiffs is without cause of action? OPP ISSUE NO. 5: Whether the suit has been properly valued for the purposes of [PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 7 of 21 court fee and jurisdiction? OPP
13. Issue nos. 3 and 5 were not pressed by Ld. Counsels for the parties vide their joint statement recorded on 16.08.2016, hence both issue stands deleted/disposed of accordingly.
ISSUE No. 1:- Whether the suit of the plaintiffs for declaration without seeking consequential relief of possession is maintainable? OPP ISSUE No. 2:- Whether the plaintiffs are in possession of any part of the suit property? OPP
14. Both issues are taken up together as findings on issue No.2 will have an important bearing on issue No.1. Onus to prove these issues is upon the plaintiff.
15. It is the case of the plaintiffs that they have been in possession of the suit property since purchase whereas it is the contention of defendant no. 1 that he has been in possession of the same through his company M/s [ENTITY] and Sons Pvt. Ltd. In order to prove that plaintiffs have been in possession of the suit property, PW-1 in his examination-in-chief deposed that initially his father was and thereafter the plaintiffs were/are in possession of the suit property since the day of the purchase of the property. Suit land was also mutated in the names of plaintiffs on 14.09.1992 and had placed on record Khatauni pamayish of the years 1984-1985 and relevant entries of 02.04.1997 showing the relevant mutation and copy of [ENTITY] of the years 1996-1997 as Ex. PW1/2 and Ex. PW1/3 respectively. PW-1 also deposed that he had also got photographs of the property carrying the signboard there. The photographs are Ex. PW1/11 and Ex. PW1/12. In cross-examination with respect to possession and construction he deposed that he could not say if the structure over the aforesaid land was raised by M/s [ENTITY] & Sons (P) Ltd. He could not recall if his father had not raised the structure over the aforesaid land. He could not recall as to when the structure over the land was raised. When he was asked that the entire construction over the land was carried out by [ENTITY] & Sons (P) Ltd. in the [PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 8 of 21 year 1987 out of its own funds and resources, he simply replied that he could not recall any such construction at the moment. He further deposed that he was not sure at that time as to when the construction over the above land was carried out, but it was a matter of record available on the court file. He deposed that the suit property had been in possession of the plaintiffs. The area of land is 5 bighas and 19 biswas which is approximately 6000 sq. yards. He could not recall at that moment how much area was constructed on this land. When he was asked about the approximate area of land on which the construction had been raised, he replied that it was a matter of record. When he was asked that since when he was in possession of any portion of the above property, he replied that he along with the plaintiffs have been having full possession of the above said property after the demise of their father. When he was asked that his father was never in possession of any portion of the above property, he replied that he was having full possession of the above said property. He denied the suggestion that his father was never in possession of the above property. He further denied the suggestion that the plaintiffs never came in possession of the above property after the demise of their father. When he was asked that the possession of the above property was with [ENTITY] & Sons (P) Ltd., he replied that it is in their (plaintiffs) possession.
16. PW-1 further stated in his cross-examination that photographs were taken by himself alongwith his brother. The photographs were taken after they were informed by an anonymous call that above property had been falsely transferred by defendant no. 1 in his name. He further stated that he could not recall the number of rooms built in the property. He further deposed that there was no flat built over the above plot of land. When he was asked that there were four flats fully constructed, he replied that there are no fully constructed flats. He could not recall at the moment if the construction over the above land was as per the approved plans or not. He could not recall if there was any construction over the above piece of land at the time of its purchase vide sale deeds dated 27.10.1986. He deposed that he had placed on record the documents to show that [PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 9 of 21 he was in physical possession of the suit property. About the sign board in photographs Ex PW1/11 and Ex PW1/12 he deposed that the sign board was put up many years back, but he could not give the approximate date, month and year of putting the sign board. He denied the suggestion that the defendant No.1 was in actual physical possession of the suit property. He further denied the suggestion that the construction over the land was carried out by the defendant No.1 with his own funds. He also denied the suggestion that the construction was not carried out by his father. After the death of his father, he and his brothers had constructed the boundary to the DPC level and other minor constructions. He could not recall as to the number of rooms constructed in the said property. He denied the suggestion that the suit property was in possession of defendant no. 1 and the employees of defendant no. 1 were in occupation of the said area. He could not recall if the plans were got sanctioned from the office of MCD before making construction to which he replied saying it was a matter of record. He could not recall, if a show cause notice dated 23.02.1987 was issued by MCD, in the name of M/s [ENTITY] and Sons Pvt. Ltd. He could not say, if a writ petition was filed by M/s [ENTITY] and Sons Pvt. Ltd. before Hon'ble High Court of Delhi. He was not aware as to how much money was spent by M/s [ENTITY] and Sons Pvt. Ltd. for raising the construction over the said plot. He could not even recall that M/s [ENTITY] and Sons Pvt. Ltd. had carried out construction over the said plot of land.
17. Defendants have examined one Sh. [ENTITY] as DW-1 and another witness Sh. [ENTITY] as DW-2. DW-1 also deposed that deceased defendant no. 1 was in possession of the suit property and had always been in possession of the suit property right from the year 1986 and staff for the safety and security of the suit land was also employed by the deceased defendant no. 1. The construction on the suit land was raised by the company of his father i.e. M/s [ENTITY] & Sons Pvt. Ltd. in the year 1987 and all the expenses for the construction raised over the suit property were borne by his father and his father had incurred an expenditure of about 8.5 lacs in the year 1987. He further [PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 10 of 21 deposed that during construction on the suit land, MCD inspected the property and sealed the premises thereby issuing show cause notice dated 23.02.1987 to the company of his father. It has been further deposed by him that construction on the suit land was raised during the lifetime of Sh [ENTITY] with his consent and it was Sh. [ENTITY] who contested the proceedings initiated by the MCD. The disputed property was possessed by Sh. R Anand through his company M/s [ENTITY] and Sons Pvt. Ltd. and construction on the suit property was also raised by Sh. [ENTITY]. It has been deposed that Sh. [ENTITY] had also obtained telephone and electricity connection in his own name on the said land. The plaintiffs at no point of time were in possession of the suit property right from the beginning since the year 1986. The suit property was in possession of Sh. [ENTITY] and after the death of Sh. [ENTITY], the LRs of Sh. [ENTITY] were in possession of the suit land.
18. In cross-examination, he was not aware if the property was mutated in the name of both brothers (father of plaintiffs and defendant no. 1) regarding their respective portions. He had not annexed any document pertaining to income tax return either of himself or of his father which would reflect any amount spent by his late father or himself on the construction on the suit property. He also admitted that there was a litigation with municipal corporation regarding the suit property and at that time his father used to take care of litigation since Sh. [ENTITY] used to reside at Ghaziabad. He also admitted that electricity and telephone connection in the respective portions of the suit property was obtained by his father on the basis of sale deed in his favour. He further deposed that he was not aware as to execution of any document in writing as to handing over of the possession of the suit property by the plaintiffs in favour of his father and there was no registered document executed by the father of the plaintiffs in favour of his father qua possession of the suit property. He further deposed that he had no personal knowledge on his own or from record of the case.
[PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 11 of 21
19. DW-2 also deposed in his examination-in-chief that Sh. [ENTITY] had always been in actual and physical possession of the suit property right from the year 1986 and suit property never remained in possession of either [ENTITY] or the plaintiffs. The construction on the suit property was raised by M/s [ENTITY] and Sons Pvt. Ltd. in the year 1987. All the expenditure towards raising of the construction on the suit property was borne by Sh. [ENTITY] and Sons Pvt. Ltd. and after the death of Sh. [ENTITY], his sons were in physical possession of the suit property. He denied the suggestion that possession of the suit property was never with Sh. [ENTITY] since 1986 or defendants were creating third party right/interest in respect of the suit property despite the above order passed by the Hon'ble High Court. He further denied the suggestion that he had knowledge about the creation of third party interest and commission of fraud in respect of transfer of suit property by the Directors of M/s [ENTITY] and Sons Pvt. Ltd. despite the stay order passed by the Hon'ble High Court.
20. DW-3 brought the summoned record of appeal no.
32/ATMCD/1987 titled as M/s [ENTITY] and Sons Pvt. Ltd. vs. MCD and exhibited the certified copy of appeal Ex. DW3/1.
21. From the above testimonies of witnesses from both sides the picture of possession is not very clear. In the cross-examination it was suggested to the PW1 that the possession of the suit property was with defendant no. 1, however, at 2-3 places it has been suggested that the possession was with M/s [ENTITY] and Sons Pvt. Ltd.
22. During the course of arguments, it was not disputed that M/s [ENTITY] and Sons Pvt. Ltd. is a company incorporated under the [ACT] and therefore has separate legal entity. Though defendant no. 1 claimed the said company to be his own and it might be also a possible that he was the whole sole in-charge of the said company but in the eyes of law defendant no. 1 and M/s [ENTITY] and Sons Pvt. Ltd. are two different and distinct legal entities.
[PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 12 of 21 Admittedly M/s [ENTITY] and Sons Pvt. Ltd. is not party in the suit herein.
23. Defendant no. 1 had strongly pleaded that the construction on the suit property was raised by M/s [ENTITY] and Sons Pvt. Ltd, but no documentary record like accounts book, bill voucher or other documentary evidence were produced on record to prove that expenditure was done from the account of defendant or M/s [ENTITY] and Sons Pvt. Ltd. Defendant No.1 did not place on record and prove any photograph or site plan to show extent of construction. Defendant No.1 did not place on record and prove any document to show that any staff for the security of the suit property had been employed nor did he examine any of such staff. Defendant also did not place and prove on record the electricity and telephone bills. The witnesses DW1 in cross examination almost all the time responded by saying that he was not aware. Defendant even did not place on record any photograph or brochure of "[ENTITY]" to show that some construction was raised and existing on the plot.
24. Similarly even PW-1 avoided many of the questions with respect to the constructions and possession. For example when it was asked about the show cause notice dated 23.02.1987 issued by MCD he responded by saying that he could not recall and he also could not recall if writ petition was filed by M/s [ENTITY] and Sons Pvt. Ltd. before the Hon'ble High Court of Delhi. When it was asked as to how much money was spent by M/s [ENTITY] and Sons Pvt. Ltd. for raising the construction over the said plot, instead of replying that no money was spent, he said that he was not aware. He could not recall if Sh. [ENTITY] and Sons Pvt. Ltd. had carried out construction over the said plot of land whereas he should have replied by saying no amount was spent or no construction was raised by the said company. When he was asked as to how did he say that he was in actual possession of the suit property, he only referred to Ex. PW1/11 to Ex. PW1/12, the photographs to show that he was in possession. However, he specifically denied that the possession of the suit property had been with M/s [ENTITY] and Sons Pvt. Ltd or with defendant No.1.
[PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 13 of 21
25. Be that as it may plaintiff relied upon [ENTITY] and [ENTITY] Ex. PW1/2 and Ex. PW1/3 respectively. The [ENTITY] is of the year 1996-1997. No question was asked by the defendant from PW1 with respect to this [ENTITY] during the cross-examination. However, an objection on the ground of mode of prove was raised when [ENTITY] and [ENTITY] were being tendered in evidence as the same were photocopies. But [ENTITY] is the certified copy from Tehsil office and not a photocopy though exhibit number was put on photocopy. Objection on the ground of mode of prove was restricted by defendant No.1 only to the extent of document being photocopy. It was not open one. Since [ENTITY] is not photocopy, therefore objection does not survive and since no cross has been done on this document by the defendant therefore it means that contents of the same has been admitted by the defendants. Even otherwise it is not the case of the defendant No.1 that revenue records shows him or M/s [ENTITY] and Sons Pvt Ltd. to be the owner and in possession of the suit property.
26. Simply because MCD had issued show cause notice to M/s [ENTITY] and Sons Pvt Ltd ipso facto does not prove the possession of the defendant No.1 or his company. But even if the case of the defendant is accepted that the possession had been with M/s [ENTITY] and Sons Pvt. Ltd, same is also of no help to defendant No.1. Since M/s [ENTITY] and Sons Pvt. Ltd. is a different legal entity and is not party in this case, therefore, suit for declaration even without the relief of possession is maintainable as the plaintiff could not ask for relief of possession from a person/entity who is admittedly not in possession. In the facts and circumstances where plaintiff only filed the suit against defendant nos. 1 and 2 claiming all the reliefs which could be satisfied from defendant nos. 1 and 2 and therefore, in these circumstances, it cannot be said that plaintiffs being able to seek further relief has not asked for the said further relief and therefore, suit is liable to be dismissed. Hon'ble Apex Court in [PRECEDENT] observed that [PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 14 of 21 "where plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is threat of dispossession from defendants, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction." Meaning thereby that if plaintiff is in possession but defendant asserts title to the suit property and if there is no threat of dispossession or other threat on the basis of defendant's title, simplicitor suit for declaration would be maintainable.
27. It is settled law that possession follows title. There is no dispute that suit property was purchased by the father of plaintiffs from his own funds and Regd. Sale deed was executed in his favour on 27.10.1986. Thus father of plaintiff came into possession in terms of the legal presumption. It is the claim of the defendant No.1 that suit land was with him and his company raised structure/construction from his funds or from the funds of company. Therefore it was upon the defendant No.1 to prove that possession was obtained from the father of plaintiffs or from plaintiffs and construction was raised from his funds or from the funds of company. No documentary evidence came on record. Company does have its record which are the best evidence than the oral evidence but the same was kept away from the Court. Hon'ble Supreme Court in [PRECEDENT] has held that irrespective of onus of prove an adverse inference would be drawn against the party withholding the best evidence. Therefore an adverse inference must be drawn against defendant No.1 that he or his company was not in possession of the suit property at any point of time that's why documents were not produce as it could have gone against him. Therefore, necessary conclusion is that plaintiffs have been in possession of the suit property since the day it was purchased by their father. As the plaintiff has been in possession and in the present suit plaintiffs have asked for declaration with consequential relief of permanent [PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 15 of 21 injunction, therefore, present suit is not hit by the proviso to [SECTION] of [ACT].
In view of the above discussion both the issues are decided in favour of plaintiffs and against the defendants.
ISSUE NO. 4: Whether the suit property devolved upon the plaintiffs after the death of Sh. [ENTITY]? OPP
28. Onus to prove this issue is upon the plaintiffs. There is, however, no need for evidence to decide this issue. This issue can be disposed of on the basis of admitted position in view of clear cut stand of the defendants. It is the pleaded case of the defendant No.1 that the suit property was purchased in the name of father of plaintiff out of his own funds for defendant No.1 who was to pay back by cash or kind in the shape of development of the land. It is further case of the defendant that part of the consideration amount was adjusted against outstanding against the father of the plaintiff and remaining was to be paid to hum but he expired. If the case of defendant no. 1 is accepted, it means that father of the plaintiffs expired even before the entire consideration amount was paid back or before any transfer title documents in respect of the suit property was executed, therefore, certainly upon the demise of father of plaintiffs suit property which stood in the name of father of the plaintiffs devolved upon the plaintiffs by operation of law.
29. Had it not been so then the defendant No.1 would not have entered into the so called settlement whereby plaintiffs could have agreed to execute power of attorney in favour of her grandmother for executing sale deed in respect of the suit property in favour of defendant no. 1 upon receiving the consideration. Though plaintiffs have disputed the settlement and execution of attorney in favour of defendant No.2 and which settlement has not been proved but so far as the present issue is concerned if the case of the defendant is taken into consideration it stands proved rather admitted by defendants themselves that upon the demise of Sh. [ENTITY] the suit property devolved upon the [PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 16 of 21 plaintiffs.
Hence, issue no. 4 is decided in favour of the plaintiffs.
ISSUE NO. 6: Whether a Memorandum dated 30.12.1988 was entered into between Sh. [ENTITY] (now deceased) and the defendant no. 1, if so, its effect? OPD
30. Onus to prove this issue is upon the defendants. In order to prove the memorandum dated 30.12.1988 Ex. PW2/1, LRs of defendant No.1 have examined one of the brother of father of plaintiffs and of defendant No.1 Sh. [ENTITY] as DW2. He deposed that the suit property was purchased by Sh. [ENTITY] for the benefit of Sh. [ENTITY] as he was short of money and Sh. [ENTITY] had handed over the said sale deed dated 27.10.1986 to Sh. [ENTITY] and executed Memorandum dated 30.12.1988 regarding the fact that above mentioned land had been purchased at the instance of Sh. [ENTITY] for his benefit and Sh. [ENTITY] had agreed to pay back the sale consideration by way of developing the said land or by tendering the amount and to this effect a memorandum Ex DW2/1 was executed by Late Sh. [ENTITY]. In Memorandum Ex DW2/1 it has been recorded that M/s [ENTITY] and Sons Pvt. Ltd. was having a credit balance of Rs.3,78,977/- with M/s Vijay Mangestics Pvt. Ltd. and amount of Rs. 85,000/- with Sh. [ENTITY]. It was agreed by Sh. [ENTITY] that the said credit balance of Rs.4,63,977/- would be adjusted towards the sale consideration of the above suit land. It was recorded in the Memorandum dated 30.12.1988 that Sh. [ENTITY] would execute sale deed of the said land in favour of Sh. [ENTITY] the moment remaining amount of consideration i.e. Rs 1, 90,583/- along with interest was paid to him by Sh. [ENTITY]. He identified the signatures of his brother Sh. [ENTITY] on the memorandum dated 30.12.1988 Ex. DW2/1.
31. In cross-examination he deposed that Ex. DW2/1 was executed in his presence but did not remember the exact date, time and year of its execution however, it was at or around 12:00 to12:30 pm. The said document was not [PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 17 of 21 signed by any witness nor by him and he denied the suggestion that above document was neither executed nor signed in his presence. He deposed that no consideration was paid by Sh. [ENTITY] to Sh. [ENTITY] at the time of execution. He denied the suggestion that document Ex. DW2/1 had not been executed by Sh. [ENTITY] and the same was forged and fabricated.
32. Original of Ex. DW2/1 was stated to have been lost from judicial file and defendant No.1 was permitted to prove this document by way of secondary evidence. In order to appreciate secondary evidence it is necessary for party to first prove the circumstances which will enable the Court to appreciate the secondary evidence meaning thereby that the defendant was required to prove that the document has been lost, mutilated, destroyed in fire, misplaced, weeded out etc. or any other ground mentioned in [SECTION] of the [ACT]. None of the witness of the LRs of defendant No.1 deposed any of the ingredients mentioned in [SECTION] of [ACT]. Till the time ingredient of [SECTION] is not proved, the secondary evidence led by the party cannot be appreciated in evidence. In these circumstances, the Memorandum Ex DW2/1 does not stand proved as Ex.DW2/1 is not admissible in evidence.
33. Although it has come on record at the time of allowing of secondary evidence that the original of the same was filed before Hon'ble High Court and was kept in sealed cover but the same was then missing from the record. Be that as it may at the time of evidence also it was required by the witness to depose to the same effect.
34. Even otherwise if it is believed that such memorandum was entered into but despite that defendants were required to prove that such amounts as deposed by DW-2 and pleaded by defendant no.1 in the pleading, was lying to the credited of father of the plaintiffs and was adjusted. It has already been seen while deciding the issue No.1 & 2 that defendant No.1 has not placed and proved on record books of accounts of the company and other records, income tax [PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 18 of 21 returns etc. which could show that part consideration was adjusted. Admittedly M/s Vijay Magnesites Pvt. Ltd. is a company and therefore, accounts books and statement of account etc. must be in existence which must be showing the credit balance as deposed but the same was not produced and proved thereby rendering themselves liable for drawing of adverse inference against the defendants No.1 in view of the ratio of [ENTITY]). Similarly it has been pleaded that amount of Rs.85000/- was owed by [ENTITY] but nothing has been placed on record to prove the same. In these circumstances, since the onus was upon the defendant to prove the execution of memorandum as well as transaction/adjustment of amount as alleged, therefore, defendant No.1 was required to support their contention by way of documentary evidence. When documents are in existence the contents of the documents must be proved by the document itself and not by oral testimony.
In view of reasoning discussed above, issue no. 6 is decided against the defendant.
ISSUE NO. 7:- Whether the plaintiffs are entitled for the relief as prayed for in the plaint?OPP
35. Onus to prove this issue is upon the plaintiff. It has already been noted herein before that it is an admitted case of the parties that suit property was purchased by the father of the plaintiffs out of his own funds by way of sale deed dt 27.10.1986. It has also been noted herein before that defendant No.1 failed to prove any memorandum dt 31.12.1988 or that part consideration amount was adjusted as alleged or that any amount was spent on the construction on the suit property. Both DW1 and DW2 did not prove the General Power of Attorney executed by plaintiffs in favour of defendant No.2 in pursuance to alleged compromise arrived at by plaintiffs and defendant No.1 at the joint meetings convened by the defendant No.2. None of the witness of the defendant No.1 even attempted to exhibit the General Power of Attorney allegedly executed by plaintiffs in favour of defendant No.2, so that its veracity and genuineness could be tested on the anvil of cross examination. DW2 also did not prove the GPA [PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 19 of 21 allegedly executed by him in pursuance of said compromise in favour of his mother. Once defendants failed to prove the execution of General Power of Attorney by plaintiffs in favour of defendant No.2 on the basis of which sale deeds have been executed by the defendant No.2 purportedly on behalf of plaintiffs in favour of defendant No.1 in respect of the suit property, therefore said sale deeds and said general power of attorney cannot be sustained in law.
In view of the above discussion and reasoning, issue No. 7 is hereby decided in favour of plaintiffs and against the defendants.
RELIEF In view of the findings recorded on all issue suit of the plaintiffs (Sh. [ENTITY], Sh. [ENTITY] and Sh. [ENTITY]) is allowed and defendants are directed to file the sale deed(s) dt 10.10.1997 in respect of suit land bearing Khasra No. 848 min (3-0) & 849 min (2-19) situated in village Dera Mandi, Tehsil Hauz Khas, New Delhi, purportedly executed by Smt [ENTITY] as an attorney of plaintiffs in favor of Sh. [ENTITY].
A decree of declaration is hereby passed in favour of plaintiffs and against the defendants thereby declaring as null and void the sale deed(s) in respect of land bearing Khasra No. 848 min (3-0) & 849 min (2-19) situated in village Dera Mandi, Tehsil Hauz Khas, New Delhi purportedly executed by Smt [ENTITY] as an attorney of plaintiffs, in favour of Sh. [ENTITY] and further declaring as null and void the General Power of Attorney dt 26.09.1997 allegedly executed by plaintiffs in favour of Smt. [ENTITY] w/o Lt Sh. Lal Chand Anand A decree of mandatory injunction is also hereby passed in favour of plaintiffs and against the defendants thereby directing the LRs of defendant No. 1 to return the Original Sale Deed dt 27.10.1986 in respect of the above mentioned land executed in favour of Late Sh [ENTITY].
A decree of permanent injunction is hereby passed in favour of plaintiff against the defendants thereby permanently restraining the defendants, their agents, representatives, servants etc. from entering into any further [PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 20 of 21 agreements with regard to the sale of the land bearing Khasra No. 848 min (3-0) & 849 min (2-19) situated in village Dera Mandi, Tehsil Hauz Khas, New Delhi.
Parties to bear their own cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
([ENTITY]) Announced in the open Court ADJ-13(Central) / THC (Judgment contains 21 pages) Delhi / 07.09.2016 [PRECEDENT] [ENTITY] vs. [ENTITY] Page No. 21 of 21