High Court of Delhi Case RSA No.229/1980 PDF

IN THE HIGH COURT OF DELHI RSA No.229/1980 # The Motor & General Finance Ltd........ Appellant ! through: Mr.Sunil Magon, Adv. VERSUS $ Delhi Development Authority & Ors......... Respondents ^ through: Mr.Rajesh Mah...

IN THE HIGH COURT OF DELHI RSA No.229/1980 # The Motor & General Finance Ltd........ Appellant ! through: Mr.Sunil Magon, Adv. VERSUS $ Delhi Development Authority & Ors......... Respondents ^ through: Mr.Rajesh Mahajan, Adv. RESERVED ON: 06.12.2007 % DATE OF DECISION: 03.01.2008 CORAM: * Hon'ble Mr.Justice Pradeep Nandrajog 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. 1. The above captioned second appeal arises out of the judgment and decree dated 12.8.1980 passed by the learned ADJ, Delhi whereby the judgment and decree dated 17.8.1976 passed by the learned Sub-Judge, Delhi was set aside. 2. Facts necessary to dispose of the present second appeal are that Delhi Improvement Trust allotted a plot bearing municipal No.124, Block-8A, Western Extension Area, Karol Bagh, New Delhi (hereinafter referred to as the suit property) in favour of Smt. Vidyawati (hereinafter referred to as the deceased). Deceased died on 16.3.1956 leaving behind 3 daughters namely, Mrs.Vimal Kumari Khanna, Mrs.Kamwal RSA No.229/1980 Page No.1 of 15 Sarin and Dr. Mrs.Compesh Kumari Kapur. 3. Alleging that it had purchased the suit property from the deceased vide sale deed dated 27.1.1948 the appellant filed a suit against aforenoted 3 daughters of the deceased and DDA, the successor-in-interest of Delhi Improvement Trust. In the suit inter alia it was prayed as under :- i.) A decree of declaration that the appellant is the absolute owner of the suit property be granted. ii.) A decree of perpetual injunction restraining the 3 daughters of the deceased from claiming any right or interest in the suit property be granted. iii.) A decree of mandatory injunction directing DDA to execute perputal lease deed in respect of the suit property in favour of the appellant be granted. 4. The daughters of the deceased filed a joint written statement. Defence set up by them in their written statement is as under :- i.) Suit is not properly valued for purposes of court fees. ii.) Suit is barred by virtue of provisions of Section 34 of Specific Relief Act in as much as appellant should have also sued for possession of the suit property. iii.) Deceased had no right in the suit property for the reason suit property was purchased benami in name of the deceased and it was the husband of the deceased Sukh Dayal i.e. their father who was the real owner of the suit property as he had RSA No.229/1980 Page No.2 of 15 paid the entire consideration in respect of suit property. iv.) Sale deed dated 27.1.1948 purported to have been executed by the deceased in favour of the appellant is a forged and fabricated document. v.) Lastly defendants placed reliance upon clause-13 of Terms and Conditions relating to the tender/offer for Lease which clearly mandated that a transfer will be valid only when Delhi Improvement Trust executed the perpetual lease deed in favour of offerer/tenderer and possession of the allotted plot had been handed over to the tenderer/offerer. 5. It was pleaded that neither a perpetual lease deed was executed by Delhi Improvement Trust or DDA in favour of the deceased nor possession of the suit property was handed over to her thus deceased had no right to transfer the suit property. 6. DDA also filed written statement inter alia averring that:- i.) Suit is not maintainable for the reason no notice as required under Section 53(B) of the Delhi Development Act was served upon DDA. ii.) Deceased had no right to transfer the suit property in view of clause-13 of Terms and Conditions relating to the tender/offer for Lease. 7. On the basis of pleadings of the parties, vide order dated 23.2.1974, the learned Trial Court framed the following RSA No.229/1980 Page No.3 of 15 preliminary issues:- “1. Whether the suit is properly valued for the purposes of Court-fee and jurisdiction? OPP 2. Whether the suit is barred under Section 34 of the Specific Relief Act?” 8. Vide order dated 26.8.1974 the learned Trial Court decided the afore-noted preliminary issues in favour of the appellant and held the suit to be maintainable. Said decision has become final. 9. After disposing the preliminary issues vide order dated 5.11.1974 learned Trial Court framed following 5 issues :- “1. Whether the sale deed dated 27-1-48 is forged document? OPD 2. Whether Smt. Satyawati was Benami holder of the property? OPD 3. Whether Sh. Krishna Mohan is competent to sign and verify the plaintiff? OPD 4. Whether the suit is barred by limitation?OPD 5. Relief.” 10. On behalf of plaintiff 5 witnesses namely K.N.Mahal PW-1, Mr.G.L.Nagpal PW-2, Ram Lal PW-3 and S.N.Pandit PW-4 and S.P.Singh PW-5 were examined. 11. PW-1 was employed as an Accounts Assistant in the plaintiff company. He deposed that Mr.Krishan Mohan had the authority to sign and verify the plaint in question. 12. PW-2 deposed on the lines of the plaint. He duly proved the certified copy of the sale deed dated 27.1.1948 as Ex.PW-2/1. Relevant portion of testimony of PW-2 reads as RSA No.229/1980 Page No.4 of 15 under :- “It was 5.6.71 when a letter was written and prior to that also we had been contacting DDA for transfer of plots in our favour. I cannot say from memory as to when a first letter was written regarding the transfer of plot............... Que. First time, when you did take up this matter regarding plot No.124, Block No.8A, WEA, with DDA. Ans. I do not remember.” 13. PW-3 was employed as a Clerk in the Registrar Office, Delhi. He deposed that sale deed dated 27.1.1948 i.e. Ex.PW-2/1 is the certified copy of the original sale deed. He however deposed that he had no personal knowledge about the execution of original sale deed by the deceased. 14. PW-4 was the Ex Sub-Registrar, Delhi. He deposed that he had registered the sale deed dated 27.1.1948 executed by the deceased in favour of the appellant. 15. PW-5 was the General attorney of the plaintiff company. He deposed that the original sale deed dated 27.1.1948 certified copy of which is Ex.PW-2/1 has been lost and is not traceable. 16. No evidence was led from the side of the daughters of the deceased. 17. Jai Gopal Gaur, UDC, DDA was examined as D4W1 on behalf of DDA. He deposed that Delhi Improvement Trust had allotted the suit property in favour of the appellant. That the deceased had paid entire sale consideration in respect of RSA No.229/1980 Page No.5 of 15 the suit property. That possession of the suit property was not handed over to the deceased. That no perpetual lease deed in respect of the suit property was executed by the Delhi Improvement Trust or DDA in favour of the deceased. That the deceased had no right to transfer the suit property unless a perpetual lease deed in respect of the suit property was executed in her favour and possession of the suit property was handed over to her. 18. D4W1 proved documents namely Letter of Allotment dated 27.1.1943 as Ex.D-1, a resolution dated 28.1.1943 passed by Delhi Improvement Trust as Ex.D-2 and correspondence between the parties as Ex.D-3 to Ex. D-21. 19. Letter of Allotment dated 27.1.1943 Ex.D-1 contained therein Terms and Conditions relating to the tender/offer for Lease. Clause-13 of the Terms and Conditions relating to the tender/offer for Lease on which reliance has been placed by the defendants reads as under :- (13) No transfer of any rights by the tenderer/offerer will be recognised by the trust until all the dues in respect of the plot have been paid by the tenderer/offerer and possession taken over, and the lease deed/agreement for sale/or sale deed executed and registered by him/her.” 20. Ex.D-2 records that the suit property was allotted in favour of the deceased. 21. I need not note the correspondence between the parties in detail save and except letter dated 30.8.1943 Ex. D-6 RSA No.229/1980 Page No.6 of 15 issued by Delhi Improvement Trust and addressed to the deceased which reads as under :- “Madam, I am directed to inform you that your tender of Rs.18/ 15/- per square yard premium and 2 ½% thereof per annum as ground rent subject to enhancement according to the conditions of the lease, for perpetual lease hold of plot No.124, Block No.8-A, W.E. Area Scheme Area 134.03 square yards residential house on the conditions agreed to by you has been accepted by the Trust, You are requested therefore to pay :- 1. Rs.2038/3/- being the balance of the amount of the premium due: 2. Rs. 54/-/-on account of cost of stamps for the regist- tration of the lease deed; 3. Rs. 1/-/-towards the charges for the preparation of the lease deed and 4. Rs. 5/-/-cost of boundary pillars. Total: 2098/3/- Within one month from the date of issue of this letter. Please note that failure to comply with it shall be treated as breach of the conditions of the tender and your deposit of earnest money will be liable to be forfeited under the conditions of the tender of the lease. No transfer of any rights by the tenderer will be recognised by the Trust until all the dues in respect of the plot have been paid by the tenderer and lease deed executed and registered and possession taken over by him or her. RSA No.229/1980 Page No.7 of 15  Yours faithfully, sd/- For Lands Officer.” 22. I also note that from the correspondence it is clear that the entire sale consideration in respect of the suit property was paid by the deceased. It is also clear that neither perpetual lease deed in respect of suit property was executed in favour of the deceased nor possession of the suit property was handed over to the deceased. 23. Another thing which emerges from Ex.D-3 to D-21 is that daughters of the deceased first time in the year 1965 applied to DDA that the suit property be allotted in their favour for the reason they are the only surviving legal heirs of the deceased. Vide 2 letters dated 5.6.1971 Ex. D-19 and Ex.D-20 appellant first time informed DDA and daughter of the deceased Compesh Kumari that the deceased had transferred her rights in the suit property in favour of the appellant. 24. After considering pleadings as also evidence led by the parties, the version of the appellant found favour with the trial court. The decision of the trial court can be summarized as under :- i.) Krishan Mohan was competent to sign and verify the plaint. ii.) The onus to prove that sale deed dated 27.1.1948 Ex.PW2/1 executed between the deceased and appellant was RSA No.229/1980 Page No.8 of 15 forged and fabricated document was upon the defendants/respondents which they failed to discharge. iii.) The onus to prove that the deceased was a Benami owner was also upon the defendants which they failed to discharge. iv.) Defendants/respondents failed to show as to how suit filed by the appellant was barred by limitation. v.) As regards Clause-13 relied upon the defendants the learned Trial Court opined as under :- “Admittedly, no document had been executed in favour of deceased Satya Wati by D.D.A. or its predecessor-in-interest the Delhi Improvement Trust. Yet I am of the view that this clause 13 of the tender form does not bind the present plaintiff who is a bonafide purchaser of the rights of the deceased Satya Wati in respect of the plot in question.” 25. Thus vide judgment and decree dated 17.8.1976 the learned Trial Court granted the relief prayed for by the appellant. 26. Aggrieved by the judgment and decree dated 17.8.1976 passed by the trial court DDA filed an appeal before the court of learned Additional District Judge, Delhi. 27. During the pendency of the appeal DDA filed an application under Order XIV Rule 5 CPC for framing of additional issues. Additional issues sought to be framed were that present suit is not maintainable in view of provisions of Section 53(B) of Delhi Development Act, suit is not valued properly for purposes of court fees and suit is not maintainable in its present form. RSA No.229/1980 Page No.9 of 15 28. Vide order dated 21.7.1980 the learned appellate court dismissed the application under Order XIV Rule 5 CPC filed by DDA. 29. After considering the case in its entirety, the case set up by the appellant impressed upon the learned appellate court. The decision of the appellate court can be summarized as under:- i) It was incumbent upon the appellant to prove that the sale deed dated 27.01.48 Ex.PW2/1 is a genuine document and not a forged and fabricated document. And the appellant failed to do so. ii) In view of clause 13 of the clause-13 of Terms and Conditions relating to the tender/offer for Lease the deceased had no right to transfer the suit property till the perpetual lease deed in respect of the suit property was executed in favour of the deceased and possession of the suit property was handed over to the deceased. iii.) Additionally, appellate court also reasoned that the appellant should not have filed a suit for injunction simpliciter but should have also prayed for relief of possession of the suit property. 30. Thus vide judgment and decree dated 12.08.80 learned appellate court allowed the appeal filed by the DDA and set aside the judgment and decree dated 17.08.96 passed by the learned Trial Court. RSA No.229/1980 Page No.10 of 15 31. Aggrieved by the judgment and decree dated 12.08.1980 passed by the learned appellate court the appellant has filed the present second appeal. 32. Vide order dated 24.9.1980 under-noted substantial question of law was framed by this court:- “Whether the First Appellate Court was right in law in reversing the decision on preliminary issues on maintainability of suit and cause of action against respondent No.1 which were already decided by Trial Court on 26.8.1974 and the First Appellate Court itself dismissed the application of respondent No.1 claiming additional issues?” 33. The afore-noted substantial question of law is inappropriate for the reason a perusal of the judgment of the appellate court makes it clear that suit filed by the appellant was not dismissed on account of maintainability but was otherwise dismissed on merits. 34. The only thing that has to be considered is that whether the decision of the appellate court was correct. 35. In so far as issue relating to genuineness of the sale deed dated 27.1.1948 Ex. PW-2/1 is concerned, suffice would it be to note the decision of the Supreme Court reported as Janki Narayan Bhoir Vs. Narayan Namdeo Kadam AIR 2003 SC 759. In the said decision the Supreme Court observed as under :- “10. Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if RSA No.229/1980 Page No.11 of 15  there by an attesting witness alive, and subject to the process of the Court and capable of giving an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence..........” 36. The sale deed dated 27.1.1948 Ex.PW2/1 purported to have been executed by the deceased has been witnessed by one Amar Nath Kakar and Brij Dayal. These witnesses have not been examined by the appellant. 37. Testimonies of PW-3 and PW-4 do not establish that sale deed dated 27.1.1948, Ex. PW-2/1 was executed by the deceased. 38. PW-3 has deposed that he had no knowledge about the execution of the sale deed by the deceased. 39. PW-4 deposed regarding the registration of the sale deed dated 27.1.1948, Ex. PW-2/1. At this stage suffice would it be to note the following observations of the Gujarat High Court in the decision reported as Lalbhai Trading Company & Ors. Vs. UOI & Ors. (2006) 1 GLR 497:- “It is also necessary to take into consideration that the petitioner is also disputing its liability as a surety. Whether or not, the petitioner has executed the bond is an issue which requires leading of evidence and thereafter adjudication. In normal circumstances, such an issue would not arise. However, where the party who is termed to be surety denies the execution of the bond it would fall within the realm of leading of evidence and proving of execution of document. In law execution means signing, sealing and delivery of RSA No.229/1980 Page No.12 of 15  document. The term execution may be defined as a formal completion of a deed. It is the last act or series of acts which completes it. Mere registration of a document is not in itself sufficient proof of its execution. Under Section 68 of the Indian Evidence Act, 1872 the proof of execution of document required by law to be attested is provided for. The concept of the term attested means that a person has signed the document by way of testimony to the fact that the said person saw it being executed. An attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment of the execution of the document by the executant. A document cannot be attested by a party to it.” 40. In said circumstances and considering the judgment of the Supreme Court in Janki Narayan's case (supra) I find no infirmity in the decision of the appellate court that the appellant failed to duly prove the sale deed dated 27.1.1948, Ex.PW-2/1. 41. Assuming that the sale deed dated 27.1.1948 Ex.PW2/1 was duly executed by the deceased, the question arises could the deceased transfer the suit property. 42. Clause-13 of Terms and Conditions relating to the tender/offer for Lease as noted in para 18 above and letter dated 30.8.1943, Ex.D-6 issued by Delhi Improvement Trust and addressed to deceased as noted in para 20 above are self speaking. From a perusal of the afore-noted documents it is clear that the deceased had no right to transfer the suit property till perpetual lease deed in respect of the suit property was executed in her favour and possession of the suit property RSA No.229/1980 Page No.13 of 15 was handed over to her. None had happened. 43. Before concluding I note that as per the records of Delhi Improvement Trust and DDA, for the first time in the year 1971 appellant informed DDA that he had purchased the suit property from the deceased. PW-2 in his testimony though has deposed that even prior to 1971 they had informed DDA but he failed to prove any record in support of same. That appellant informed DDA for the first time in the year 1971 is strengthened by the fact that appellant also informed daughter of the deceased about the said purchase in the year 1971 as well. The sale deed Ex. PW-2/1 is dated 27.1.1948. The fact that the appellant informed DDA about the purchase of the suit property from the deceased about a gap 23 years is highly suspicious of the due execution of the sale deed dated 27.1.1948 Ex.PW2/1. 44. I note that as per the records of the Delhi Improvement Trust no document was ever executed by it in favour of the deceased in respect of title in the suit property. 45. The only document from which deceased could have derived title in the suit property was the Letter of Allotment dated 27.1.1943 Ex.D-1. 46. Letter of Allotment dated 27.1.1943 Ex.D-1 was also the document on basis of which deceased could have transferred her rights in the suit property in favour of another person. RSA No.229/1980 Page No.14 of 15 47. As already noted Letter of Allotment dated 27.1.1943 Ex.D-1 contained therein Terms and Conditions relating to the tender/offer for Lease, clause 13 of which stipulated that the suit property could not have been transferred until execution of the perpetual lease deed in favour of the deceased and delivery of the possession of the suit property to the deceased. 48. Even if it is assumed that the deceased executed sale deed dated 27.1.1948 Ex.PW2/1, the fact which emerges is that at the time of the alleged purchase of the suit property appellant was fully cognizant of the Clause 13 of the Terms and Conditions relating to the tender/offer for Lease. 49. Appellant thus cannot be held to be a bonafide purchaser for the reason he was clearly aware of the fact that the deceased could not have transferred the suit property until execution of the perpetual lease deed in favour of the deceased and delivery of the possession of the suit property to the deceased. 50. In view of above discussion the present second appeal is dismissed. 51. No costs. January 3, 2008 (PRADEEP NANDRAJOG) vg JUDGE RSA No.229/1980 Page No.15 of 15