In the Court of Shri [ENTITY] : Civil Judge: North District at Tis Hazari Courts, Delhi Suit No. 130/2005 Date of institution : 29.01.1998 Date of decision : 26.03.2009 In the matter of: [ENTITY] S/o [ENTITY] R/o WZ629, Shiv Nagar Extn. P.O. Janak Puri, New Delhi110058 Plaintiff VERSUS [ENTITY] S/o [ENTITY] R/o WZ93/5 & WZ93/6, Tatarpur, Rajouri Garden, New Delhi27 Defendant SUIT FOR DECLARATION/CANCELLATION OF INSTRUMENTS AND FOR INJUNCTION J U D G M E N T
1. This is a suit for declaration/cancellation of instruments and for injunction for declaring the plaintiff as owner/landlord of Shop bearing No. 93/5 & 93/6(WZ93/5 & WZ93/6), Tatarpur, Main Najafgarh Road, New Delhi(hereinafter referred to as the 'suit property') and for cancellation of documents of sale such as agreement to sell, receipt, Will, GPA, affidavit dated 15.04.1993 or any other such document in favour of the defendant [ENTITY] in respect of the suit property alleged to have been executed by Smt. [ENTITY] as void or voidable and to deliver the said documents in the court and also for restraining the defendant and his agents etc. from alienating the suit property in any manner whatsoever on the basis of documents dated 15th April 1993 or of any other date subsequent to the documents of the plaintiff in his power and possession.
2. Facts are that the plaintiff is the owner of the suit property, in occupation of the defendant as a tenant having purchased the same from Smt. [ENTITY]; that on purchase of the suit properties the plaintiff and Smt. [ENTITY] had informed the respective tenants in the shops including the defendant and asked them to attorn themselves as tenant under the plaintiff and pay rent to the plaintiff; that the plaintiff gave a notice of demand dated 01.03.1993 to the defendant in respect of the suit property whereby demanding arrears of rent of which reply was received but the rent was not paid thereafter another notice of demand dated 26.05.1995 was given to the defendant but the defendant failed to pay rent; that the plaintiff made an application to the Municipal Corporation of Delhi in 1995 for mutation of the suit property in his favour and he came to know from the office of corporation that the defendant had also applied for mutation of the suit property in his favour on the basis of certain forged documents allegedly executed in his favour by Smt. [ENTITY]; that the defendant is denying or is interested to deny to the title of the plaintiff to the suit property on the basis of certain documents which has casted clouds on the title of the plaintiff in respect of the suit property; that the documents dated 15.04.1993 alleged to have been executed by Smt. [ENTITY] in favour of the defendant in respect of the suit property are void or voidable being invalid and subsequent to the documents of the plaintiff and are liable to be cancelled to prevent serious injury to the plaintiff if left outstanding, gave a cause of action to the plaintiff to institute this suit.
3. The defendant contested this suit by filing written statement of his defence wherein took preliminary objections that the plaintiff has no locus standi to file the present suit.
4. In reply on merits, it is contended by the defendant that he is owner of the suit property having purchased the same from Smt. [ENTITY]; that there is no question of any attornment to be made by the defendant in favour of the plaintiff as the defendant is occupying the suit property in his own right; that the notice dated 01.03.1993 sent by the plaintiff was illegal and not binding on the defendant and the said notice was duly replied; that the documents in favour of the plaintiff are forged one; that in the month of February, 1993 the previous owner Smt. [ENTITY] had agreed to sell the tenanted premises to the defendant on accepting the agreed consideration and in this way she had purchased ownership right on the defendant, similarly other shop keepers who were earlier tenants under Smt. [ENTITY] had also purchased ownership right from her; that the defendant is justified in denying the title of the plaintiff in respect of the suit property being the owner.
5. It is denied by the defendant that the documents in his favour are null and void or that the same are liable to be cancelled. It is also denied that the plaintiff became the owner of suit property after the death of Smt. [ENTITY]. It is further denied that cause of action has arisen in favour of the plaintiff and against the defendant. Other allegations of the plaint are denied and disputed by the defendant and prayed for dismissal of suit.
6. The plaintiff filed replication wherein he denied the contentions raised by the defendant in his written statement and reiterated the allegations made in the plaint.
7. On the pleadings of the parties following issues for trial were framed by my Learned Predecessor on 18.11.98, namely: 1 Whether the plaintiff has no locus standi to file the suit? OPD
2. Whether the suit has not been properly valued for the purposes of court fee and its effect ? OPD 3 Whether the plaintiff is owner/landlord of property No./Shop No.93/5 & 93/6 (WZ93/5 & WZ93/6), Tatarpur, Main Najafgar Road, New Delhi being his purchased property from Smt. [ENTITY] vide documents dated 17.07.1992? OPP
4. Whether documents agreement to sell, Receipt, Will, Affidavit dated 15.04.93 or other documents in favour of [ENTITY] & in his possession in respect of Shop No. 93/5 & 93/6 (WZ93/5 & WZ93/6), Tatarpur, Main Nazafgarh Road, Delhi allegedly executed by Smt. [ENTITY] are forged and fabricated and void ? OPP
5. Whether the plaintiff is entitled for declaration that he is owner of/landlord of Shop No.93/5 & 93/6 ? OPP
6. Whether the plaintiff is entitled for decree/declaration that documents dated 15.04.93, as detailed in Issue No.4, above, are null and void ? OPP
7. Whether the plaintiff is entitled for decree of injunction and consequent relief as prayed ? OPP
8. Relief.
8. The plaintiff examined four witnesses. The plaintiff examined himself as PW1, PW2 is [ENTITY], PW3 is Smt. [ENTITY] and PW4 is [ENTITY]. During his evidence, the plaintiff produced the documents Ex. PW1/1 to Ex. PW1/7.
9. The defendant examined as much five witnesses. The defendant examined himself as DW1, DW2 is [ENTITY], DW3 is [ENTITY], DW4 is [ENTITY] and PW5 is [ENTITY]. During his evidence, the defendant produced the documents Ex. DW1/1 to DW1/6, Ex. DW3/A, Ex. DW4/B to DW4/C.
10. I have heard counsel for the parties and perused the material available on record.
11. My issue wise findings are as under: Whether the plaintiff is owner/landlord of property No./Shop No.93/5 & 93/6 (WZ93/5 & WZ93/6), Tatarpur, Main Najafgar Road, New Delhi being his purchased property from Smt. [ENTITY] vide documents dated 17.07.1992?
Whether the plaintiff is entitled for declaration that he is owner of/landlord of Shop No.93/5 & 93/6 ?
12. Onus qua these issues was placed on the plaintiff. These issues are taken together being interrelated.
13. To prove his case, the plaintiff in his examinationinchief deposed that he purchased the suit property from Smt. [ENTITY] on 17.07.1992 through General Power of Attorney (Ex. PW1/1), Agreement to Sell (Ex. PW1/2), Affidavit (Ex. PW1/3), Receipt (Ex. PW1/4) and Will (Ex. PW1/5).
To disprove these issues the defendant is also claiming to have purchased the suit property from Smt. [ENTITY] on the basis of Will (Ex. DW1/1), General Power of Attorney(Ex. DW1/2), Agreement to Sell(Ex. DW1/3), Affidavit(Ex. DW1/4) Receipt (Ex. DW1/5) and Affidavit (Ex. DW1/6).
14. The Learned Counsel for the plaintiff quoted the judgment in [PRECEDENT] and argued that the plaintiff acquired ownership right on the basis of Power of Attorney and Agreement to Sell executed by Smt. [ENTITY]. Relevant portion of the judgment quoted by counsel for the plaintiff reads thus: "Power of Attorney Sales in Delhi is the common mode of sale of immovable properties to get over the Legislative restriction on transfer of properties. When POA is for consideration and bargain is followed by delivery of possession then the transaction is complete".
15. The Hon'ble High Court of Delhi in [PRECEDENT], has held as follows: "An agreement of sale is not a document of transfer nor by reason of execution of a power of attorney, the right, title or interest of an immovable property can be transferred. Such a transfer can only be effected by executing a registered document as provided for under [SECTION] of the [ACT] read with [SECTION] of the [ACT]".
16. Similar view has been taken by Hon'ble Delhi High Court in case [PRECEDENT] which is as follows:
"The petitioner had only produced an Agreement to Sell, Will and a Power of Attorney and a receipt for payment of money but these, in our opinion, do not constitute a sale. Under [SECTION] of the [ACT], sale of an immovable property can only be by a registered deed.
In our opinion, the petitioner has no right, title or interest in the property as he has not purchased it by any registered Sale Deed. An immovable property cannot be purchased by a mere Power of Attorney or Agreement to sell".
17. The judgment in [PRECEDENT] (Supra) quoted by counsel for the plaintiff is of single Judge of Hon'ble Delhi High Court. The judgments in [PRECEDENT]) and [PRECEDENT]) are of the Division Benches of Hon'ble Delhi High Court and the ratio decided in these cases shall prevail over the judgment quoted by counsel for the plaintiff. The Division Benches of Hon'ble High Court of Delhi in [PRECEDENT]) and [PRECEDENT]) clearly declares that on the execution of General Power of Attorney and Agreement for sale, the right, title or interest cannot be conferred. On the basis of these documents no right, title or interest qua the suit property were conferred on the plaintiff or on the defendant.
18. The next document alleged by the plaintiff to prove his ownership qua the suit property is Deed of Will(Ex. PW1/5).
The Hon'ble Supreme Court in the case of [PRECEDENT], has held as follows: "In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other."
19. Similar view has also been taken in a recent case in [PRECEDENT] which is as follows: "The propounder of the Will has to show that the Will was signed by the testator; that he was the relevant time in sound disposing state of mind; that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other."
20. In the light law laid down in [PRECEDENT] ,(Supra) and [PRECEDENT], (Supra), in order to assess as to whether the Will has been duly executed, the propounder has to show that the Will was signed by the testator and that he has put his signatures on the Will of his own free will; that testator was in a sound disposing state of mind at the time of execution of the Will and understood the nature and effect of the dispositions. In the light of this settled position of law, I have to examine whether the Will under consideration had been duly executed and validly attested.
Both the parties are propounder of separate Wills so the burden to prove the due execution and attestation of these Wills is on the parties.
The attesting witnesses of the Will(Ex. PW1/5) produced by the plaintiff did not state anything in his evidence regarding due execution and valid attestation of the said Will. It has been neither pleaded nor proved that the testator of the Will, i.e., Smt. [ENTITY] was of sound mind when she executed the Will.
The witnesses produced by the defendant to prove the Will(Ex. DW1/1) also did not give statement regarding due execution and valid attestation of the Will. The defendant has also neither pleaded nor proved that the testator of the Will, i.e., Smt. [ENTITY] was of sound mind when she executed the Will.
21. For the aforestated discussion, I am of the considered opinion that the plaintiff as well as the defendant have failed to prove their ownership qua the suit property. They have also failed to prove any right existing in their favour in respect of the suit property.
For the aforestated reasons, these issues are decided against the parties.
Issue No. 1 and 2.
Whether the plaintiff has no locus standi to file the suit? Whether the suit has not been properly valued for the purposes of court fee and its effect ?
22. These issues are taken together as both are legal issues.
Onus qua these issues was placed on the defendant.
23. No evidence has been produced on behalf of the parties to prove or disprove these issues. These issues are remained unproved and are decided against the defendant.
Whether documents agreement to sell, Receipt, Will, Affidavit dated 15.04.93 or other documents in favour of [ENTITY] & in his possession in respect of Shop No. 93/5 & 93/6 (WZ93/5 & WZ93/6), Tatarpur, Main Nazafgarh Road, Delhi allegedly executed by Smt. [ENTITY] are forged and fabricated and void ?
Whether the plaintiff is entitled for decree/declaration that documents dated 15.04.93, as detailed in Issue No.4, above, are null and void ?
24. Onus qua these issues was placed on the plaintiff.
These issues are taken together being interrelated.
25. In the present case the plaintiff is claiming to be owner of the suit property and based his claim on certain documents and alleged that the documents produced by the defendant are forged, fabricated and void. In the written statement, the defendant is also claiming to be owner of the suit property on the basis of certain documents regarding which the plaintiff is claiming declaration as void.
Cancellation of instrument can be sought by the plaintiff when the instrument is voidable against him and he may reasonably apprehend serious injury by the instrument being left outstanding. While deciding Issue No.3 and 5 it has been held that the documents produced by the parties do not confer any right qua the suit property either on the plaintiff or on the defendant. When the plaintiff has got no right qua the suit property he does not have any right to get cancellation of documents of the defendant and he is not likely to suffer any injury from the said document if left outstanding. Even otherwise the documents of the defendant sought to be declared as null and void do not confer any right on the defendant qua the suit property.
For the aforestated discussion these issues are decided against the plaintiff.
Issue No.7 Whether the plaintiff is entitled for decree of injunction and consequent relief as prayed ?
26. This issue shall be considered along with the relief. Relief
27. In view of my findings on Issue No.3 and 5, it has been held that the documents produced by the plaintiff do not confer any right, title or interest qua the suit property, hence, the plaintiff cannot be declared owner of the suit property, i.e., Shops bearing No. 93/5 & 93/6(WZ93/5 & WZ93/6), Tatarpur, Main Najafgarh Road, New Delhi. The relief of declaration of ownership cannot be granted.
In view of my finding on Issue No.4 and 6, the plaintiff has got no right to seek declaration of documents of the defendant as null and void for cancellation of these documents. The relief for cancellation of instrument also cannot be granted to the plaintiff.
28. The grant of injunction is governed by provisions of Section 41
(i) of the [ACT], which says, "an injunction cannot be granted when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court".
In the present suit, the plaintiff is claiming himself to be owner of the suit property knowingly that the execution of General Power of Attorney and Agreement to Sell does not confer on the plaintiff any right, title or interest in respect of the suit property. This conduct of the plaintiff is such as to disentitle him to the assistance of the court and no injunction can be granted in his favor.
29. In view of the aforestated discussion, the suit of the plaintiff is dismissed. There shall be no order as to costs as both the parties are claiming ownership qua the suit property on the basis of documents which they know do not confer any right, title or interest on them. Decree sheet be prepared accordingly.
Announced in the open court Today i.e., on 26.03.09 ([ENTITY]) CIVIL JUDGE:NORTH DISTRICT at TIS HAZARI COURTS, DELHI.
DECREE SHEET IN THE COURT OF SHRI [ENTITY] : CIVIL JUDGE: NORTH DISTRICT at TIS HAZARI COURTS:DELHI In the matter of:
[ENTITY] S/o [ENTITY] R/o WZ629, Shiv Nagar Extn.
P.O. Janak Puri, New Delhi110058 Plaintiff VERSUS [ENTITY] S/o [ENTITY] R/o WZ93/5 & WZ93/6, Tatarpur, Rajouri Garden, New Delhi27 Defendant SUIT FOR DECLARATION/CANCELLATION OF INSTRUMENTS AND FOR INJUNCTION Plaint presented on 29.01.1998 This suit coming on this day for final disposal before me in the presence of Mr. [ENTITY], Advocate advocate for plaintiff and Mr. [ENTITY], Advocate for defendant. It is ordered that the suit of the plaintiff is dismissed. No costs.
Given under my hand and the Seal of this court on 26.03.09.
([ENTITY]) CIVIL JUDGE:NORTH DISTRICT at TIS HAZARI COURTS, DELHI.