* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 769/2010
MADAN LAL AGGARWAL ..... Plaintiff
Through Mr. Avinash Lakhanpal, Adv.
versus
RAKESH SHARMA ..... Defendant
Through Nemo.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
ORDER
% 20.04.2012 1. The present suit has been filed by the plaintiff to seek decree of declaration against the defendants declaring cancellation of sale deed dated 9.5.2008 and for permanent
injunction for restraining the defendants from creating any third party interest on the basis of the said sale deed qua the suit property.
2. The facts in brief which necessitated the filing of the present suit are that the plaintiff has claimed himself to be a bona fide, lawful and absolute owner of the agricultural land CS(OS) No. 769/2010 Page 1 of 7 measuring 4 Bighas 1 Biswas out of Khasra No. 150 situated in Revenue Estate of Village Bhalswa Jahangirpuri, Delhi vide registered sale deed dated 2.2.98 registered as Documents No. 57 in Additional Book No.1, Volume No. 518. The plaintiff has also claimed to be in possession of the said land and also in possession of the entire chain of documents tracing his title to the said suit property. The plaintiff has further averred that the defendant no.1 is alleged to have purchased the said property from the defendant no.2 who impersonated himself to be the plaintiff and owner of the said property. The plaintiff has further averred that in the month of August 2009, when the plaintiff visited the suit property it came to his knowledge that some persons are attempting to grab the suit property and apprehending danger to his suit property, the plaintiff had approached the revenue authority and on perusal of the record of the revenue authority the plaintiff was shocked to find that the revenue records were reflecting the name of the defendant no.1 as purchaser of the said property. On making further enquiries the plaintiff found that the defendant no.2 had impersonated himself as plaintiff to execute the said sale deed CS(OS) No. 769/2010 Page 2 of 7 dated 9.5.2008 registered as document no. 7530 in additional book No. 1 Volume No. 1854 for a total sale consideration amount of Rs.44,72,000/- in favour of the defendant no.1. The plaintiff made a written complaint to the police station Swaroop Nagar and based on that an FIR No. 224 dated 1.10.2009 under Section 419/420, 468, 471,474,34 120(b) was registered against the defendants and the same is pending investigation.
3. The plaintiff has claimed himself to be the lawful and absolute owner of the said property and hence the defendant no.2 was vested with no legal rights to sell or transfer the same in favour of the defendant no.1 by executing the sale deed dated 9.5.2008. The plaintiff has also claimed that defendant Nos. 1 and 2 are total strangers to the said suit property and no right of any nature has accrued in their favour in the said property on the basis of any documents. The plaintiff has also claimed that the sale deed dated 9.5.2008 executed by the defendant no.2 in favour of defendant no.1 is null and void and therefore such a sale deed cannot create any right, title or interest in favour of the defendant no.1 and the same thus deserves to be cancelled in accordance with law. Based on these averments, the CS(OS) No. 769/2010 Page 3 of 7 plaintiff has claimed decree of declaration to declare the sale deed dated 9.5.2008 in respect of the agricultural land area measuring 4 Bighas, 1 Biswas out of Khasra No. 150 situated in Revenue Estate of Village Bhalswa Jahangirpuri Delhi as illegal and null and void in the eyes of law. The plaintiff has claimed decree of permanent injunction to restrain the defendants from selling, alienating, transferring, assigning or creating any third party right or interest in the said suit property based on the sale deed dated 9.5.2008. Along with the present suit, the plaintiff had also filed an application under Order 39 Rule 1 and 2 of CPC and vide order dated 30.4.2010, this court had restrained the defendants from selling, alienating, transferring, assigning or creating any third party interest with respect to the suit property and the said interim order continued to remain in force. After service, the defendant no.1 had appeared in this matter and the plaintiff and the defendant no.1 had moved an application bearing IA No. 13648/2011 under Order 23 Rule 3 read with Section 151 of CPC to bring on record the terms of the settlement arrived at between them. In the said compromise application the defendant no.1 unequivocally admitted the CS(OS) No. 769/2010 Page 4 of 7 ownership of the plaintiff over the suit land. The defendant no.1 also stated that he will not have any right, title or interest in the said land in question based on the said sale deed. Based on the said compromise separate statements of the plaintiff and of the defendant no.1 were recorded by this court on 26.8.2011 and based on the said statements, vide order dated 26.8.2011, the present suit was decreed by this court qua defendant no.1 in terms of the compromise application. The decree sheet was accordingly drawn up by this court vide decree dated 26.8.2011 as against the defendant no.1.
4. The defendant no.2 was served through publication as well as by means of affixation and vide order dated 10.8.2011, the defendant no.2 was proceeded ex-parte as the defendant no.2 did not come forward to contest the present case. The ex-parte evidence as against the defendant no.2 was adduced by the plaintiff Madan Lal Aggarwal as PW-1. In ex-parte evidence the said witness proved photo copy of the sale deed dated 9.5.2008 as Ex.PW1/2 and photo copy of the FIR No. 224/2009 as Ex.PW1/3. Besides proving the said documents, the plaintiff also proved the case set up by him in the plaint. The testimony of the CS(OS) No. 769/2010 Page 5 of 7 plaintiff remained unchallenged and unrebutted, there is thus no reason to disbelieve the testimony of the plaintiff through which he has successfully proved his case. The ownership of the plaintiff in respect of the suit property is not in dispute as the defendant no.1 has also admitted the ownership of the plaintiff. The defendant no.1 has further admitted the fact that the defendant no.2 had impersonated himself as plaintiff and then had executed the sale deed in question dated 9.5.2008 in favour of the defendant no.1. Once the said property could not be sold by the defendant No.2 in favour of defendant no.1, therefore, no right or interest in the said property could be transferred in favour of the defendant no.1 through the said sale deed dated 9.5.2008. The defendant no.1 has also taken a stand that the said property was sold by the defendant no.2 not on his own but by impersonating the plaintiff with dishonest and oblique motives to earn illegal money out of such sham sale transaction. Thus the said sale deed dated 9.5.2008 registered in the office of Sub- Registrar is a creation of illegal and fraudulent transaction and therefore the same deserves to be set aside and the same is accordingly declared as null and void. The decree of cancellation CS(OS) No. 769/2010 Page 6 of 7 is also passed in favour of the plaintiff and against the defendant no.2 thereby cancelling the sale deed dated 9.5.2008. The decree of permanent injunction is also passed in favour of the plaintiff and against the defendant no.2. The defendant no.2, his representatives, assignees, attorneys or any other person acting on his behalf are restrained from selling, alienating, transferring, assigning or creating any third party interest in the said property. The suit filed by the plaintiff is accordingly decreed with costs qua defendant no.2.
5. Let decree sheet be drawn up accordingly.
KAILASH GAMBHIR, J
APRIL 20, 2012
mg
CS(OS) No. 769/2010 Page 7 of 7