$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on:29th May, 2018 Date of Decision: 11th July, 2018 + RFA 34/2017 & CM APPLs.1066/2017, 19999/2017 SATYNARAIN & ANR. Appellants Through: Mr. [ENTITY], Advocate (M-9811359452) Versus SHRI [ENTITY] Respondents Through: Mr. [ENTITY], Advocate. (M:8802554570). CORAM: JUSTICE [ENTITY] JUDGMENT
[ENTITY], J.
1. Plaintiff-Shri [ENTITY] filed the present suit for possession and permanent injunction against his son Sh. [ENTITY] - Defendant No.1 and his daughter-in-law, Smt. [ENTITY] - Defendant No.2. Plaintiff claimed ownership of plot no.4, out of Khasra no.12/22, situated in Revenue Estate of Village Kakrola Extn, Najafgarh, New Delhi-110043, ad measuring 125 Sq. Yards (hereinafter referred as suit property). The Plaintiff claimed to have purchased the said property from the sons of Sh. [ENTITY] who was the original allottee of the said plot on 20th July, 1993 vide GPA, Agreement to Sell, Affidavit, Receipt and documents issued by the gram panchayat. The Plaintiff claimed that he retired from the DTC as a driver and thereafter in 1995-96, started his business with his son, Defendant No.1- Sh. [ENTITY]. The business was being jointly conducted till 2003-04 from the suit property. Thereafter his health did not permit him to continue the business and Defendant No.1 continued the same. Around 2006-07, he came to know that the Defendant has discontinued the business and had let out the suit property consisting of five rooms, toilet and bathroom on the Ground Floor and an identical accommodation on the First Floor of the property. In 2012, he called upon the Defendant to vacate the suit property which he refused and thus the Plaintiff filed the present suit for possession seeking the following reliefs:
"(a) to pass a decree of permanent injunction in favour of the plaintiff and against the defendant, restraining the defendant from entering into and creating any third party interest in the suit premises i.e. Plot No.4, out of Khasra No.12/22, situated in Revenue Estate of Village Kakrola, Delhi, abadi known as Gram Sabha Kakrola Extn, Najafgarh, New Delhi-110043, admeasuring 125 Sq. Yards, more clearly shown in red colour in the site plan annexed (supra);
(b) to pass a decree of possession in favour of the plaintiff and against the defendant of the suit premises i.e. Plot No. 4, out of Khasra No.12/22, situated in Revenue Estate of Village Kakrola, Delhi, abadi known as Gram Sabha Kakrola Extn, Najafgarh, New Delhi- 110043, admeasuring 125 Sq. Yards, more clearly shown in red colour in the site plan annexed (supra);
(c) to allow cost of the suit in favour of the plaintiff and against the defendant;."
2. Initially, only the son was impleaded as the sole Defendant and he was proceeded ex-parte due to non appearance. Vide order dated 30th October, 2012, the Defendant's application Under [SECTION] [ACT] was allowed and the order proceeding ex-parte was set aside. The Defendant filed his written statement and he pleaded that the Plaintiff is not the owner of the property in question. He also pleaded that the suit property was purchased from the compensation given to his grandfather i.e. Plaintiff's father after the acquisition of his ancestral agricultural land by [ACT] by LAC Kapashera bearing award no.1/93-94. He pleaded that his grandfather- Sh. [ENTITY] had received Rs.40 lakhs as compensation out of which he had paid a sum of Rs.10 lakhs to the Defendant. This amount was handed over to the Plaintiff from which the suit property was also purchased. The Defendant claimed that he has always been in exclusive ownership and possession of the suit property. It was also pleaded that he was working with his father in the suit property in the export garments business and the Plaintiff being the father, the business was conducted in the name of the father. On 21st January, 2013, the Trial Court granted an interim injunction with the direction to the parties that no third-party rights in respect of the suit property would be created till the disposal of the suit. On the said date, the following issues were framed:
(i) Whether the plaintiff has not valued the suit properly for the purpose of court fees and jurisdiction, if so, its effect? OPD.
(ii) Whether the plaintiff is not the owner of the suit property, if so its effect? OPD.
(iii) Whether the plaintiff is entitled to the relief of possession, as prayed for? OPD.
(iv) Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? OPD
(v) Whether there is no relationship of licensor and licensee between the parties, as claimed by the defendant? OPD
(v) Relief."
3. On 10th July, 2013, the Defendant's application under [SECTION] seeking impleadment of his wife Smt. [ENTITY] was considered. The impleadment was sought on the ground that she had purchased the suit property from one Sh. [ENTITY]. This application was allowed on 13th September, 2013, and Smt. [ENTITY] impleaded as Defendant No.2. Defendant No.2- Smt. [ENTITY] filed her written statement and claimed ownership of the suit property on the basis of two sets of documents - the first set of documents executed between the Plaintiff and one Sh. [ENTITY] dated 14th July, 2004 and the second set of documents executed between herself and Sh. [ENTITY] dated 6th April, 2009.
4. The Plaintiff tendered his evidence as PW-1. He exhibited the documents by which he purchased the property documents dated 20 th July, 1993 as PW-1/A (colly), allotment letter and other documents issued by gram panchayat in favour of Sh. [ENTITY]. In his cross-examination he admits that his father Sh. [ENTITY] was paid compensation for the land acquired by the Government. He stated that the total compensation paid was Rs.98 lakhs, out of which he was given Rs.19 lakhs. He admitted that later on he was given another Rs.10 lakhs by his father, though, he denied that the same was given to the Defendant i.e. his son. He stated that Sh. [ENTITY] and Sh. [ENTITY] were the owners of the suit property and that they were the sons of Sh. [ENTITY]. He did not know the date of death of Sh. [ENTITY]. He admitted that Sh. [ENTITY] had three sons and three daughters and two wives, but that he had purchased the suit property from the two sons of Sh. [ENTITY], namely, Sh. [ENTITY] and Sh. [ENTITY]. He admitted that in 1993, his son i.e. the Defendant was residing with him. He admitted that none of the documents forming PW-1/A (colly) were registered. He stated that the suit property was vacant at that time. He admitted that he had purchased it and that he carried out the construction in the suit property. In his cross-examination, it is clear that he was not aware of any of the documents of any Export-Import business. He was confronted with the documents relied upon by his daughter-in-law, Smt. [ENTITY]. He claimed that he was not aware of any one by the name of Sh. [ENTITY]. He admitted that the value of the suit property could be around Rs.30 to 40 lakhs. Upon being confronted with the documents dated 14 th June, 2004, by which the Defendant No.2 had claimed that the Plaintiff has sold the property to Sh. [ENTITY], he stated as under:
"The witness has been shown the documents i.e. GPA, Agreement to Sell, Receipt, Affidavit, Possession Letter, all dt. 14-7-2004 but he states that due to cataract operation recently undergone by him, he is unable to see and read the documents. I underwent cataract operation in the last fortnight. It is wrong to suggest that I had sold the suit property to Shri [ENTITY] vide the above said documents and as such I have no right to the suit property since July 2004. It is also wrong to suggest that defendant no. 2 purchased the suit property from Yashwant on 6-4-2009. It is correct that there was some quarrel between [ENTITY], his family and me along with my daughters and sons at house no. 349, Kakrola village. I was present at the house. It is further correct that in respect of the said incident, a Kalandara u/[SECTION] [ACT]. was registered.
It is correct that the signature at point A is of mine which is on the document i.e. GPA dated 14- 7-2004. The second and third page of GPA does not bear my signature at point B and C. The affidavit dated 14-7-2004 bears my signatures at point A and B. The Receipt does not bear my signature at points A and B. The Possession Letter also does not bear my signature. I do not know the person who has witnessed the said documents, namely [ENTITY]. 1 do not know whether it has been witnessed by my son."
5. Thus, he admitted his signatures on some of the documents by which the property was transferred by him to Sh. [ENTITY]. He admitted that he was aware that the Defendant had let out the property for more than 10 to 12 years and that he had not given any notice to the tenants to vacate the premises. Though he admitted his signatures on some of the documents, he denied that he had sold the property to Sh. [ENTITY]. He admitted that when he stopped the business of Export-Import in 2003-04, the Defendant No.1 was doing the business on his own and thereafter he stopped the work. He admitted that he had a cordial relationship with the Defendant No.1 and 2-3 years after the marriage but thereafter the relations got strained.
6. Smt. [ENTITY], one of the daughters of the Plaintiff appeared as PW-2. She stated that Plaintiff had purchased the suit property from his own earnings and got the construction done. She claimed that her brother i.e. Defendant No.1 had stopped Export-Import business in 2006-07 and sold all the machinery and equipment of about Rs.10-20 lakhs. She claimed that when her father asked the Defendant to vacate the property and handover the possession, he assaulted the Plaintiff and a Police complaint was also lodged. She claimed that the Plaintiff has also served in the Indian Army for almost 6 years and thereafter in the DTC (Delhi Transport Corporation) for almost 21 years and that he retired on 31 st May, 1993. All the 9 children i.e. 7 daughters and 2 sons were brought up by the Plaintiff and were also got married. She claimed that her grandfather never gave any of the compensation amount to his grandson- Defendant No.1, it was divided between the Plaintiff and his brother Sh. [ENTITY]. She claimed that the documents exhibited with Sh. [ENTITY] are fake and a criminal complaint was filed against the Defendant which was pending adjudication before the Metropolitan Magistrate. In her cross-examination, she stated that she was not aware of the contents of her affidavit.
"I have no knowledge of English language. I can not tell where the Ex. PW 2/A was prepared. I am not aware about the contents of the Ex. PW 2/A."
7. She claimed that her father had never sold the suit property and she was also not aware of any person called Sh. [ENTITY]. She admitted that she got married in 1993 at the time when the suit property was purchased. She stated that there was no dispute between her father and brother until 2005. She also stated that her father had given Rs.4 lakhs out of the total compensation amount to her brother i.e. Defendant No.1. She denied the signatures of her father on second page of the document-PW-1/A. She also denied the signatures of her father on the set of documents dated 14th July, 2004. She admitted that the business was started jointly initially between her father and her brother and thereafter the Plaintiff remained at home and Defendant No.1 continued the business. After the quarrel in 2008, the Plaintiff asked the Defendant to vacate the property. She denied that the sale had taken place in 2004 between her father and Sh. [ENTITY]. She stated that she and her father were not in visiting terms with the Defendants.
8. Sh. [ENTITY], one of the sons of Shri. [ENTITY] appeared as PW3. He admitted the entire set of documents PW-1/A (colly) by which the Plaintiff had purchased the property from him and his brother. He recognized his own signatures and the signatures of his brother. He stated that the suit property was allotted to his father- Sh. [ENTITY] as per Ex.PW-1/C. He denied that he and his brother had no ownership of the property. He admitted that on the death of his father he left behind two sons three daughters and a wife and that the suit property was not mutated in his name.
9. Defendant No.1 appeared as DW-1. He stated that he got married on 11th February, 1997 and he studied up to 11th standard. He worked as supervisor in a school till July, 2011. He claimed that the money received from the purchase of the suit property was given by his grandfather. He claimed that his father got only Rs.1.35 lakhs as severance benefits when he left the DTC. He claimed that the premises where the factory was being run was in his possession since 6th April, 2009. He claimed that he was a witness to the documents by which the father sold the property to Sh. [ENTITY] who thereafter sold the property to his wife. He denied that the documents were forged or fabricated.
10. Defendant No.2- Smt. [ENTITY] appeared as DW-2. She exhibited the documents by which she claimed that her father-in-law had sold the property to Sh. [ENTITY] as DW-2/1 to DW-2/5 i.e. GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter. In her cross-examination, she stated that she had purchased the suit property on 6th April, 2009 for a total amount of Rs.90,000/-, for which she had withdrawn a sum of Rs.10,000/- from her bank account. In her cross-examination, she stated that she was a Hindi teacher and was employed since 1999. She got married in 1997. She claimed that she had arranged Rs.20,000/- from her own funds and Rs.70,000/- from her parents. She claimed that she and her husband, Defendant No.1 had made payments to her father-in-law, the Plaintiff, initially, for purchasing the suit property. In the criminal case filed before the Metropolitan Magistrate, she claimed that she and her husband got bail. She denied that the documents are forged. She claimed that since 2009, the property has been in their exclusive possession and that they are receiving rents.
11. The Trial Court has, vide judgment dated 3rd September, 2016 decreed the suit for possession. On issue no.1, the Trial Court held that the suit was properly valued. On issue no.5, the Trial Court held that the Defendant No.1 has failed to prove the ownership of better title compared to the Plaintiff. The Trial Court decided issues no.2, 3 and 4 together and came to the conclusion that the documents relied upon by the Defendants appeared to be false and that the same appeared to have been created to defeat the Plaintiff's claim. The Trial Court also expressed doubts as to the genuinity of the documents as the sale consideration for the property was Rs.1.45 lakhs in 1993 but in 2009, it was claimed to be purchased by Defendant No.2 for Rs.90,000/- only. Thus, the Trial Court granted a decree for possession in favour of the Plaintiff.
12. Analysis of the testimony of oral evidence on record reveals that none of the documents are registered. The initial sets of documents relied upon by the Plaintiff Ex.PW-1/A (colly) read with PW-1/C are not registered. PW-3 who appeared before the Trial Court admits that Sh. [ENTITY] who was the original allottee of the suit property had two sons and three daughters and one wife. So, the two sons of Sh. [ENTITY] who sold the property to the Plaintiff were not the only legal heirs. Ex.PW-1/A (colly), as per the Plaintiff has been executed in the District Court but was not registered before the Sub-Registrar. It is possible that since it is a Gaon Sabha land, no registration may have been permissible. The oral evidence of the Plaintiff is also not clear inasmuch as the Plaintiff admits his signatures on one page of GPA dated 14th July, 2004 and the affidavit dated 14th July, 2004, but he denies his signatures on the remaining set of documents, DW-2/1 to DW- 2/5. What is however strange is that the two pages on which he admits his signatures are the first page of GPA and the affidavit. The affidavit is very clear and reads as under:
"I, SHRI [ENTITY] SON OF LATE SRI [ENTITY] R/0 VPO.KAKROLA, NEW DELHI ,do hereby solemnly affirm and declare as under:-
1. That I have sold my PLOT BEARING N0,B-
4, LAND AREA MEASURING 125 SQ.YDS., OUT OF KHASRA NO.12/22 SITUATED IN THE AREA OF VILLAGE KAKROLA, IN THE COLONY KNOWN AS KAKROLA HOUSING COMPLEX, KAKROLA, NEW DELHI (hereinafter called the PROPERTY) to SHRI [ENTITY] SON OF SHRI [ENTITY] R/o RZ-62, RAJA PURI, [ENTITY], NEW DELHI (hereinafter called the PURCHASER), vide Agreement to Sell dated 14/7/2004.
2. That I have also executed a WILL & GENERAL POWER OF ATTORNEY in favour of the said purchaser, and General Power of Attorney notrised by notary public, New Delhi, on 14/7/2004, and I will not cancel/revoke the said General Power of Attorney at any later stage.
DEPONENT Verification :-
Verified at New, Delhi, on 14/7/2004 that the contents of the above affidavit from para 1 to 3 are true and correct to the best of my knowledge and belief and nothing has been concealed therein.
D E P O N E N T"
13. In his cross-examination, he denies knowledge about Sh. [ENTITY], but he does not deny knowledge of Sh. [ENTITY]. He admits the signature in the first page of the affidavit and GPA in favour of Sh. [ENTITY]. While admitting, he also states in his cross-examination that he was unable to see and read the documents as he underwent cataract operation. After saying this, however, he admits his signatures on two pages and denies his signatures on other pages.
14. The Plaintiff also states that he stopped the joint business with his son in 2003-04 and he also admits that after 2003-04 " defendant no.1 was doing the business of his own and subsequently stopped the work on his own. However, I do not know when he has stopped the said business. It is wrong to suggest that defendants are using the suit premises under their own legal rights and I have no right to get the suit property vacated from defendant."
15. He also admits that he got a considerable amount from his father from the compensation money paid by the Government around the same period 1991-93. He also admits that he got a further sum of Rs.10 lakhs along with the Rs.19 lakhs.
16. The evidence of Smt. [ENTITY], one of the daughters who appeared as PW-2, appears very nebulous inasmuch as she stated at the outset that she was not aware of the contents of her affidavit. Her cross- examination is contradictory in nature. She admits that her grandfather received compensation amount from which her father also received the money. She claimed that there were strained relations between the family. She was not aware of any one called Sh. [ENTITY].
17. From the evidence of Defendant No.1, it is clear that he was jointly doing business with his father and was aware of most of the facts. He stated that garments factory was not opened in his name but in his father's name in 1995 and for about 8 years, it continued to do business, thereafter the same has been in his possession. He claimed that he was a supervisor in a school and from his evidence, it is clear that after 2003-04, the suit property has been in the exclusive possession and occupation of the Defendants.
18. The evidence of Defendant No.2 is not credible inasmuch as the documents relied upon by her being unregistered and having been executed in 2009, cannot be recognized. Even a perusal of the second set of documents, Ex. DW-2/6 to Ex. DW-2/10 has not been established.
19. From the evidence on record, the title of both parties is not clear. The Plaintiff's title is doubtful as all the legal heirs of Sh. [ENTITY] have not sold the property. In fact PW-3, [ENTITY] has admitted that his father had three daughters, none of whom had signed the sale documents in favour of the Plaintiff. Even Sh. [ENTITY]'s wife had not signed the same. Further, the documents are not registered with any authority. The existence of Sh. [ENTITY] cannot be doubted as the Plaintiff admitted his signatures on two documents dated 14 th July 2004, a GPA and an Affidavit which he executed in favour of Sh. [ENTITY]. Thus, the Plaintiff has not been able to establish fully, his title to the suit property especially since he did not object to his son and daughter-in-law living and conducting their business, which he had started, from the suit premises for more than 10-12 years prior to filing of the suit. Even the Plaintiff's wife, it is submitted lives with her son and daughter-in-law, i.e., the Appellants/Defendants. The Plaintiff's testimony in his cross examination is also quite incredible. Firstly, he stated that he cannot see due to his cataract operation. Secondly, from the full set of documents dated 14 th July 2004, he admits his signatures on two documents/pages and denies his signatures on the rest of the documents. Thus, the Plaintiff does not appear to be coming clean with the Court. On the basis of the documents dated 14th July 2004, the Defendant no.2 claims to have purchased the property from Sh. [ENTITY].
20. The Defendants have been in possession of the property since inception. Initially they were with the Plaintiff but at least since 2009, their possession has been exclusive. From the evidence on record, neither party has established their unimpeachable title. In a suit the onus is first on the Plaintiff to establish title, which he has unfortunately been unable to do. The admission by the Plaintiff on two pages i.e. the GPA and the affidavit dated 14th July, 2004 claiming that he sold the property to Sh. [ENTITY] has to be held against him. Sh. [ENTITY] has not been summoned in order to prove his signatures. However, the Defendants are in possession of the property. They are living there with their mother, earning rental income and earning their livelihood. The title of the Defendants could be held to be unclear too, but possession is with them at least for 10-12 years.
21. The question then remains is as to whether the Plaintiff is entitled to possession. There is no doubt that PW-1/A (colly) signed by two sons of Sh. [ENTITY] has been executed in his favour. The family has been in occupation of this property since 1993. During the time when the Plaintiff and Defendant No.1 have been in occupation, they have jointly conducted their business. The electricity meter for the said property has also been installed in the name of Defendant No.2 since 2009. The Plaintiff admitted that since 2003-04, he started living with his younger son. The Plaintiff had also executed the GPA which was registered in favour of Defendant No.1 on 11th April, 2005 and the same was cancelled by a registered cancellation deed dated 3rd November, 2011. This cancellation deed is on record, though not exhibited.
22. The amount of compensation has been received by the Plaintiff from his father after selling of ancestral property and the same may have been utilised for purchasing of the suit property.
23. The Defendant being in possession, is entitled to the benefit of [SECTION] of the [ACT] as held by the Supreme Court in [PRECEDENT] "16. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under [SECTION] of the Act. The necessary conditions are:
(1) there must be a contract to transfer for consideration of any immovable property; (2) the contract must be in writing, signed by the transferor, or by someone on his behalf; (3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
(4) the transferee must in part-performance of the contract take possession of the property, or of any part thereof;
(5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract."
24. As also held in [PRECEDENT], as under:
"We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/will transactions are not "transfers" or "sales" and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreements of sale. Nothing prevents the affected parties from getting registered deeds of conveyance to complete their title. The said "SA/GPA/will transactions" may also be used to obtain specific performance or to defend possession under [SECTION] of the [ACT]. If they are entered before this day, they may be relied upon to apply for regularisation of allotments/leases by development authorities. We make it clear that if the documents relating to "SA/GPA/will transactions" have been accepted/acted upon by DDA or other developmental authorities or by the municipal or Revenue Authorities to effect mutation, they need not be disturbed, merely on account of this decision."
25. The Court is constrained to apply [SECTION] as the Plaintiff has been unable to prove his clear title to the property as also due to the Plaintiff's admissions in his cross examination. The documents on the basis of which [ENTITY] ([ENTITY]) transferred the suit property to the defendants, clearly states that possession is being handed over. Two documents executed by the Plaintiff in favour of [ENTITY] have been admitted by the Plaintiff. He was thus not being truthful when he claimed that he did not know Sh. [ENTITY] (@ [ENTITY], as he admitted his signatures on the first page of the GPA and the affidavit by which he transferred the property to him. Moreover, the long period during which the Defendants have remained in exclusive possession, to the exclusion of the Plaintiff who claims to be the owner is also a factor which acts against the Plaintiff. The Defendants having rented out the property were well within the knowledge of the Plaintiff who did not object to the same for a long period. His assertion of title and possession is quite belated. Even the testimony of the Plaintiff's daughter is writ with contradictions. The Defendant is thus not liable to be dispossessed. The title of the Plaintiff having not been proved and the Defendants being in possession for several years, the appeal is liable to be allowed. The suit is dismissed.
26. Appeal is allowed with no orders as to costs. All pending applications are disposed of.
[ENTITY] JUDGE JULY 11, 2018 Rahul