Pritam Chand Jain vs Bir Kumar & Another
2000 Latest Caselaw 572 Del

ORDER

K.S. Gupta, J.

1. Plaintiff filed this suit, inter alia, alleging that he became member of Vardhman Cooperative House Building Society, Kamla Nagar, Delhi in the year 1966 and against payment of Rs.14,155.40 from time to time to the Society, he was allotted plot bearing No. 87, situated in Madipur Village, Delhi, admeasuring 217.77 sq. yds. Sublease regarding this plot was execut- ed in his favour on 13th August 1974. It is alleged that the plaintiff completed the construction of boundary wall around the said plot in the year 1990. Defendant No. 2 is the son of defendant No. 1 and both the defendants have no right whatsoever over the said plot. On 30th April 1990 the defendants threatened to occupy the plot forcibly and as such the plaintiff was compelled to file a suit of permanent injunction against them on that date itself in the Subordinate courts. However, in the suit no ex parte ad interim injunction was granted. The plaintiff filed another application under Order 39 Rules 1 & 2 alongwith application for appointment of a Local commissioner under Order 26 Rule 9 CPC and notices of both these applications were issued to the defendants for 1st June 1990. For want of service on the defendants the case was postponed to 5th July 1990. It is pleaded that after 1st June 1990 the defendants broke open the locks placed on the front side and took forcible possession of the said plot. Now they intend to raise construction on it. It was prayed that a decree of possession of said plot No. 87 may be passed against the defendants. They be further restrained by means of a decree of permanent injunction from subletting/parting with possession/transferring/alienating or raising any construction on the said plot.

2. Defendant No. 2 contested the suit by filing written statement. By way of preliminary objections, it is alleged that the suit as framed is not maintainable, that the suit is barred under section 53-A. Transfer of Property Act; that the suit has not been properly valued for the purposes of payment of court fees and jurisdiction. On merits, by way of preliminary submissions it is further alleged that the plaintiff was a member of Vardhman Cooperative House Building Society Ltd, Kamla Nagar whom the President of India allotted land vide lease deed dated 13th August 1974. In turn the Society offered plots to its members and the plaintiff was allotted plot No. 87, Madipur Village. However, it is claimed that the plaintiff is no more a member of the said Society. It is stated that the plaintiff had neither the means nor intention to raise construction on the said plot and he agreed to sell it to the answering defendant under an agreement to sell dated 5th July 1988. Relevant clauses of the agreement to sell have been set out in Para No. 4 of the written statement. It is further pleaded that on 5th July 1988 itself the plaintiff executed an irrevocable general power of attorney, three special power of attorneys, a will and affidavits in addition to delivering Form "C", Form "D", Form-I, letter dated 10th May 1989, receipts dated 24th June, 1966 and 28th May 1988, letter dated 30th May 1988 and sanctioned plans, all in originals to the answering defendant. Since permission to sell the said plot could not be granted to the plaintiff by the Lessor it was found necessary to enter into an agreement for construction to enable the answering defendant to raise construction on the plot. Accordingly, an agreement for construction was also executed between the plaintiff and the answering defendant on 5th July, 1988. In pursuance of the said agreement to sell the plaintiff handed over the vacant possession of plot to the answering defendant on 5th July 1988 and thereafter he started construction of a residential house thereon in July 1988 itself and substantial construction stands already made. It is claimed that the plans for construction were submitted by the answering defendant on 9th June,1988 and payment of Rs.1883/ was made vide receipt No.957817 dated 28th May,1988. Rs.366/ were further paid on 30th May, 1988 vide receipt No.324442 for extension of time. It is alleged that to enable the answering defendant to obtain sanction of the plans for construction on the said plot, the plaintiff further executed indemnity bond, affidavits and undertaking. Plans were duly sanctioned by the DDA on 9th June,1988 and sanction was valid upto 8th June,1990. Extension was granted by the DDA upto 24th December, 1990 vide letter dated 10th May,1990. For obtaining extension from DDA by the answering defendant the plaintiff also signed Forms "C" and "D" and handed over to the answering defendant who deposited them with the DDA. It is denied that the plaintiff got constructed boundary wall around said plot No.87 in the year 1988 or thereafter at any point of time as alleged. It is further denied that the defendants broke open the locks placed on the front side and took forcible possession of the suit plot as alleged. It is admitted that the plaintiff filed a suit of permanent injunction in the Subordinate Courts, against the defendants. It is stated that in that suit material facts regarding execution of agreement to sell dated 5th July, 1988 in favour of the answering defendant was suppressed and the present suit has been filed only to extract more money from the defendants. It is further stated that defendant No.1 is neither a necessary nor proper party and the suit is, therefore, bad for misoinder of parties.

On 20th September, 1990 Sh. Mohinder Rana, Advocate, appearing for both the defendants made the statement that defendant No.1 adopts the written statement filed by defendant No.2.

3. In the replication filed to the written statement of defendant No.2, the plaintiff denied the execution of receipt, agreement to sell, general power of attorney, special power of attorneys, will, agreement of construction and affidavits in favour of defendant No.2 as alleged. It is further denied that any amount of Rs.1,10,000/- was received by the plaintiff from defendant No.2 towards sale price of the suit plot. It is stated that the plaintiff paid a sum of Rs.2,000/- to defendant No.2 for getting the plans sanctioned on his behalf. Defendant No.2 deposited some of the amount for this purpose. However, the receipt thereof was not given by him to the plaintiff despite repeated requests. The indemnity bond, affidavits and undertaking were given by the plaintiff to defendant No.2 for getting the plans sanctioned by the DDA. It is denied that the original sanctioned plan is in possession of defendant No.2. It is claimed that the construction over the suit plot was commenced by defendant No.2 in the third week of May 1990.

4. On the pleadings of the parties the following issues were framed:-

1. Whether the suit as framed is not maintainable as alleged in the written statement?

2. Whether the suit is barred under Section 53-A of Transfer of Property Act?

3. Whether the suit is bad for misjoinder of parties as alleged in the written statement?

4. Whether the defendant No.1 is neither a proper nor a necessary party to the suit?

5. Whether the suit has been correctly valued?

6. Whether the present suit is liable to be stayed in view of the pendency of suit No.312/90 in the court of Sub Judge, Ist Class, Tis Hazari, Delhi at the time of institution of the present suit?

7. Whether any agreement to sell dated 5th July 1988 was executed between the plaintiff and defendant No.2 for the sale and transfer of plot bearing No.87, Madipur Village, Delhi as alleged in the written statement and a sum of Rs.1,10,000/- was paid as consideration of that agreement to sell?

8. Whether the plaintiff delivered vacant possession of the suit property to the defendant No.2 in pursuance of agreement dated 5.7.1988?

9. Whether the plaintiff executed irrevocable General Power of Attorney, three Special Power of Attorneys, Will and three affidavits, all dated 5.7.1988? If so, to what effect?

10. Whether the plans for the proposed building to be raised on the suit property were submitted by the defendant to the DDA and in lieu made a payment as mentioned in para 6 of the reply on merits in the written statement? If so to what effect?

11. Whether the defendants made any construction on the said plot? If so, to what effect?

12. Whether the Agreement to Sell, Receipt, Agreement of construction and Power of Attorney are forged documents and do not bear the signatures of the plaintiff? If so, to what effect?

13. Whether the Indemnity Bond and an affidavit were given by the plaintiff to the defendant for getting the plans sanctioned at an earlier date? If so, to what effect?

14. Whether the plaintiff is no more a member of the said Society and no longer the sublessee of the plot bearing No.87, Madipur Village, Delhi? If so, to what effect?

15. Relief.

5. These issues are interinked and can be conveniently taken for discussion together. It is admitted case of the parties that Plot No.87, situated in Madipur Village was allotted to the plaintiff by Vardhman Cooperative House Building Society Ltd and a perpetual sublease in respect of the plot was also executed in his favour. The controversy between the parties mainly centres around the alleged sale of the said plot, execution of an agreement to sell by the plaintiff in favour of defendant No.2 and payment of sale consideration of Rs.1,10,000/- by the later to the former against a receipt on 5th July,1988. In connection with the disposal of I.A. No.4664/90 filed under Order 39, Rule 4 read with Section 151 CPC by defendant No.2 for vacation of status quo order as regards possession and construction on the suit plot dated 8th June, 1990, this court suo moto by the order dated 6th July 1990 had directed that the documents of title on which the plaintiff denies his signatures be sent for comparison with his admitted signatures on the documents noted in the order to the Institute of Criminology & Forensic Science, Jhandewalan Extension, New Delhi, for eliciting the opinion if both sets of signatures are of the same person i.e. the plaintiff. Ex. PW4/4 is the report prepared by A.K. Gupta, Director-in-charge FSL, PW-4. Only the statements of plaintiff, PW-5 and PW-4 are relevant and particularly the plaintiff's statement needs to be referred in detail. Plaintiff deposed that defendant No.1 is the son of his maternal uncle while defendant No.2 is the son of defendant No.1. He also used to work with defendant No.1. He wanted to get the building plans approved by the DDA for raising construction on suit plot. Defendant No.1 told him that defendant No.2 would get the plans approved if he signed the papers and gave them to him. Ex. PW5/D-1 to PW5/D-5 are the photostat copies of the documents which were signed by him and given to defendant No.1. Later on defendant No.1 told him that the building plans had been approved but he did not handover the sanctioned building plans to him. Thereafter, he got constructed a boundary wall on suit plot and further construction was not carried out as he did not have sufficient funds. He further deposed that on 30th April, 1990 he came to know through Ajay Jain that the defendants attempted to take forcible possession of the suit plot. He went to the Society's office where he was advised to go to the court and on the same day he filed a suit for injunction in District courts. However, the defendants kept on avoiding the receipt of summons for about 10/12 days or more and during that period they started making construction day and night on the suit plot. He did not enter into any agreement nor received any money from anyone in regard to the suit plot. In cross-examination, he stated that the present suit was filed during the pendency of the suit filed in District courts and when he visited the suit plot on 30th April, 1990 he found the mason and labourers removing the boundary wall and raising construction on the plot. He denied the suggestion that on 5th July 1988 he entered into an agreement to sell the suit plot to the defendants for a consideration of Rs.1,10,000/- and after receipt of that consideration against a receipt, he handed over the possession of the same to the defendants. He further denied the suggestion that on 5th July, 1988 itself he delivered to the defendants Form "C", Form "D", sanctioned plans, Form-I relating to sanction of construction on suit plot, letter dated 10th May, 1990, receipts dated 24th June, 1966 and 28th May, 1988 and letter dated 30th May, 1988, all in originals. He also denied that no documents out of these documents were ever received by him or given by, him to the defendants. It is further in his cross examination that for the purpose of getting the building plans sanctioned he handed over 3 to 4 papers after signatures to the defendants. He expressed his inability in telling the nature of the documents which were signed and handed over by him to the defendants or the dates of signing those documents. He signed the documents sometime in 1987-88. It is further in his cross-examination that he cannot admit or deny the suggestion that the documents signed by him comprised the agreement to sell, receipt and power of attorney. He gave Rs.2,000/- to the defendants for depositing with the DDA but no receipt in token of having paid that amount was obtained from the defendants. Defendants started raising construction forcibly on the suit plot on 30th April 1990. The building plans were submitted by the defendants to the DDA. He never received the sanctioned building plans but the same were shown to him by the defendants after they were sanctioned. He admitted that in the replication it is wrongly recorded that the building plan is in his possession. To a question why did he not keep the building plans with him when they were shown to him after sanction by the defendants, he replied that he had full faith in the defendants as they are related to him and he had been working with them. It is also in his cross examination that he did not sign or handover Form "C" and "D" which the defendants have filed in court. Receipts of the payment made to DDA for the purpose of getting the building plans sanctioned are in possession of the defendants. He did not receive any letter from the DDA purporting to be addressed to him in connection with the extension of time for completing the construction. He denied the suggestion that all the letters addressed to him by the DDA were received by him and handed over to defendant No.2 as he had agreed to sell the suit plot to him. He deposed that he can write in Hindi and Ex. PW2/12 is signed by him. It was blank when he signed it. One or two papers signed by him were blank. In all he had not signed more than 4-5 papers. Writing at point "A" on said Ex. PW2/12 seems to be in the hand of the Secretary of society. He admitted that the defendants did not break open the locks after 1st June 1990 as alleged in Para No.15 of the plaint and this mistake was noticed when this Para was read over to him. He also admitted that in Para No.4 of the plaint of Suit No.312/90 filed in the District courts it was wrongly recorded that defendants 2 to 4 in that suit reached the suit plot at 10.30AM on 30th April, 1990 accompanied by 6-7 other men to take forcible possession of the suit plot or that he dumped building material on the suit plot to construct boundary wall in first week of April 1990. He did not go through the plaint of the said suit and signed it as directed by Sh. Neeraj Sharma, advocate, who spoiled his case.

6. A.K. Gupta, PW-4 stated that he compared, the qusetioned signatures reading as Pritam Chand marked as Q-1 to Q-23 with the admitted signatures marked as A-1 to A-23. The photographs marked as Q-1 to Q-23 & A-1 to A-23 were taken by him and their negatives numbering 21 are kept in the wallet Ex. PW4/1. Ex. PW4/4 is the report submitted by him. This report discloses that the signatures compared by PW-4 appear on agreement to sell, construc-tion agreement, two general power of attorneys, three special power of attorneys, stamped receipt for Rs.1,10,000/-, will, three affidavits, plaint of this suit, application filed under Order 39, Rules 1 & 2 and the affidavit filed in support thereto, application under Order 26, Rule 9 CPC and the affidavit in support thereof, Vakalatnama in favour of Sh. Y.P. Ahuja, Advocate, Appendix C, Form III, Indemnity bond, undertaking, affidavit dated 7th May, 1980, Appendix "M" and Appendix "C". In cross examination witness admitted that said Appendix "C", undertaking, affidavit dated 7th May, 1980, Appendix "M" and Appendix "C" listed at serial No.(xii) to (xvi) are the Zerox copies and he did not insist for the originals thereof as it was not scientifically necessary. He further admitted that in zerox copies manipulation in the form of erasure, alteration or substitution of signatures can be attempted with ease but in the said documents no such attempt of manipulation was found to have been made. He denied the suggestion that the opinion given in the said report is incorrect.

7. On the other hand, Sanjay Jain, defendant No.2(DW-2) whose statement also requires to be referred to in detail deposed that the plaintiff offered to sell the suit plot for a consideration of Rs.1,10,000/-. Agreement to sell Ex. DW2/1, construction agreement Ex. DW2/2, general power of attorney Ex. DW2/3, another general power of attorney EX. DW2/4, special power of attorneys Ex. DW2/5, Ex. DW2/6 and Ex. DW2/7, receipt Ex. DW2/8, Will Ex. DW2/9, affidavits Ex. DW2/10, Ex. DW2/11 and Ex. DW2/12 are signed by the plaintiff. Originals of Exs. PW5/D1 to Ex. PW5/D-5 were also signed by the plaintiff and given to him by the plaintiff alongwith other documents. A sum of Rs.1,10,000/- was paid to the plaintiff against the receipt Ex. DW2/8. Originals of said Exs. PW5/D-1 to PW5/D-5 were submitted with the DDA and the building plans were got sanctioned by him. He submitted to the society a letter signed by the plaintiff seeking permission to put a jhuggi on the plot in connection with the raising of construction on the plot and Kala Ram, an official of the society demarcated the suit plot on the site and gave its possession to him. Cement etc. was kept in the jhuggi to save it from being damaged during rains. Plaintiff also gave a signed letter addressed to the DDA seeking extension of time for completing construction in addition to handing over Form "C" and "D" duly signed by him. He further deposed that the possession of suit plot was given by the plaintiff on 12th or 13th June 1988. Said letter Ex. PW2/12 is in his handwriting. He had been representing the plaintiff before the DDA on the basis of power of attorney given to him pursuant to the said agreement to sell. Original sanctioned plans are in his possession. Sunil Kumar and Wazir Chand are the witnesses to the said agreement to sell etc. In cross examination he stated that he knew the plaintiff since childhood when he was working with his father. He admitted that the plaintiff had executed a general power of attorney as well as a special power of attorney in his favour. However, he denied the suggestion that the said general power of attorney/special power of attorney alongwith indemnity bond etc. were given to him by the plaintiff only for the purpose of getting the building plans sanctioned. He expressed his inability in saying whether the plaintiff knows English but he signed the documents in English. It is further in his cross examination that construction was started on the suit plot on 10th or 12th June, 1988. Plaintiff, his wife and the son were present at their residence when the documents were delivered for the purpose of signatures. He denied the suggestion that said Exs. DW2/1 to DW2/12 are not signed by the plaintiff and he forged the signatures of the plaintiff thereon. He further denied the suggestion that no amount was paid to the plaintiff towards sale of the suit plot and the construction was not started in 1988 and that till 30th April, 1990 there was no construction except the boundary wall on the suit plot. He denied the suggestion that forcible possession of the suit plot was taken between 30th April to 8th June, 1990. It is also in the cross examination of DW-2 that payment was made to the plaintiff on 5th July 1988 when he signed the documents Ex. DW2/1 to DW2/12 at about 1-2 PM. He denied the suggestion that the plaintiff never went to any Notary for getting the said documents attested and he is a trespasser on the suit plot.

8. Sunil Gupta, DW-3 whose signatures as attesting witness appear on Ex. DW2/1 to DW2/9 deposed that the said documents were signed at the house of plaintiff in "F" Block, Kohlapur Road sometime in May, 1998 in the after noon and defendant No.2 paid Rs.1 lakh and odd to the plaintiff in his presence on that date. In cross- examination he stated that he is unable to recollect the location of the plaintiff's house and also the room which he visited with defendant No.2. He stated that the date put on the said documents was either 5th or 6th July, 1988. He admitted that he has been a friend of defendant No.2 for the last about 20 years as he is residing next door and his sister-in-law is also married to him.

9. Mrs. R.K. Wiz, handwriting expert, DW-4 stated that after careful examination and comparison of the disputed signatures marked Q-1 to Q-23 on the documents in dispute and the admitted signatures of the plaintiff marked under "A" series and A-E and 1 - 15 she is of the opinion that the disputed signatures are written by the writer of admitted signatures and Ex. DW4/1 is the report prepared by her. (The photographs Ex. DW4/2 were exhibited subject to the defendants' either filing the negatives thereof or an affidavit of DW-4 that the negatives are untraceable). In cross examination she admitted that she did not go through the report of the handwriting expert examined by the plaintiff before preparing the report Ex. DW4/1. She denied the suggestion that even from naked eye she can find 100% difference in the enlarged photographs of the disputed and compared signatures. She also denied the suggestion that she gave a false report in order to support the defendants as she was engaged by them.

10. It may be noticed that I.A. 1493/2000 under Order 13, Rule 2 read with Order 18, Rule 2-A and Section 151 CPC was filed on 9th February, 2000 by defendant No. 2 seeking permission to place on record the affidavit of Mrs. R.K. Wiz, DW-4 and 17 other documents as detailed in the list annexed with the application and to lead additional evidence to prove those documents. Although the plaintiff contested this application by filing a reply but on 10th February, 2000 Sh. Y.P. Ahuja appearing for the plaintiff made the statement that he has no objection if the affidavit of DW-4 is allowed to be placed on record and taken into consideration. Indisputably, present suit was filed on 7th June, 1990 and defendant No.2 closed his evidence on 2nd November, 1999. During this period of about 10 years the defendant No.2 had ample opportunity to produce the documents which are now sought to be filed and proved, Neither the application discloses sufficient ground nor defendant No.2 can be permitted to reopen the case at this belated stage and, therefore, said I.A. is dismissed making it clear that in view of the concession made on behalf of the plaintiff the affidavit of DW-4 is taken on record.

11. Submissions advanced by Sh. J.K. Seth, Senior Advocate appearing for the defendants are summarised as under:-

a) There was absolutely no occasion on the part of plaintiff to have handed over the documents in original, particulars whereof are noted in Para No.6 of the preliminary submissions of the written statement of defendant. No.2 if the plaintiff had not agreed to sell the suit plot to defendant No.2 under the agreement Ex. DW2/1 dated 5th July 1988.

b) It is not the case of plaintiff as set out in the plaint or replication that he had handed over any blank papers after signatures to defendant No.2 for the purpose of getting the building plans approved from DDA. Therefore, the letter Ex. DW2/12 probablises the statement of defendant No.2 that possession of the suit plot was delivered to him on 12th/13th June 1988 and construction thereon was started on 12th/13th June 1988 itself. As a part of this submission relying on the decision in S. Palanivelu Vs. K. Veradammal, , it was also urged by the learned counsel that as the present suit came to be filed in June 1990 after about two years of the commencement of construction on suit plot, the plaintiff will be deemed to have acquiesced in the construction by defendant No.2 on the plot and thus it is not a case for directing the delivery of possession of the suit plot to the plaintiff even if the case pleaded by defendant No.2 regarding sale of the plot to him is disbelieved by this court. According to him the plaintiff can be compensated in money for the value of the suit plot.

c) As is manifest from the cross examination of plaintiff (PW-5) averments made in paras 3 and 4 of the previous suit No.312/90 and also those made in Para 15 of the plaint in this case are admitted to be wrong by him and, therefore, much credence cannot be placed on his statement made in support of the case, he being an unreliable man.

Now, I will examine these submissions one by one.

12. By way of preliminary submission in Para No. 6 of the written statement it is pleaded by defendant No.2 that the plaintiff on execution of documents referred to in Para 5 delivered to him Form "C", form "D" Form "I" - relating to sanction of construction on the suit plot, letter dated 10th May 1990, receipts dated 24th June, 1966 and 28th May, 1988, letter dated 30th May 1988 and sanctioned plans, all in originals. In said Para No.5 reference is made to the agreement to sell etc. allegedly executed by the plaintiff on 5th July, 1988. Exs. DW1/9 is the photostat copy of Form "C" while Ex. DW1/10 is the copy of Form "D". Former bears the date of 10th May, 1990 while the later of 31st May, 1990. Needless to say that Suit No.312/90 (certified copy of plaint Ex. PW1/1) for permanent injunction was filed before the Senior Sub Judge by the plaintiff against both the defendants in this case and Parmeshthi Kumar and Shreshthi Kumar, other sons of defendant No.1 on 30th April 1990. It does not appeal to reason that the plaintiff would have handed over the originals of said Forms "C" and "D" after the institution of said suit in May, 1990 to defendant No.2. In his deposition the plaintiff has denied of having handed over original Forms "C" and "D" to the defendants or having signed them. It is in the deposition of Hari Ram, DW-1 that both the said Forms "C" and "D" purport to be signed by Satish Kumar, Architect. However, defendant No.2 has not examined him as a witness in this case. Considering the said probability and failure to examine the said Architect, there seems to be no reason to believe said part of the testimony of plaintiff in regard to non signing and non delivery of the said two forms in original to defendant No.2. Based on the above probability, handing over of the original letter dated 10th May, 1990 by which the time for completing construction was extended upto 24th December, 1990 by DDA is further ruled out. Defendant No.2 has neither filed the original receipt dated 24th June, 1966 or a copy thereof referred to in said Para No.6. As regards the handing over of remaining documents i. e. original Form-I, original receipt dated 28th May, 1988, original letter dated 30th May, 1988 and original sanctioned plan, it is in the testimony of the plaintiff (PW-5), as discussed above, that the building plans were shown to him by the defendants after they were sanctioned by the DDA and he never received them; that he paid Rs.2,000/- to defendant No.1 for which no receipt was taken, for being deposited with the DDA in connection with the sanction of building plans and the receipts of payments made to DDA are in possession of the defendants; that the defendants are related to him and he had also been working with them in the past and, therefore, he had full faith in them and that is the reason why he did not ask them to handover the building plans to him after sanction. Vide said receipt dated 28th May 1988 amount of Rs.1883/- was deposited with the DDA on 28th May 1988 while sanction of building plans was conveyed through the letter dated 9th June 1988 (copy Ex. DW1/7) by the DDA. Said letter dated 30th May 1988 relates to extending the time of construction upto 24th July 1989. As the suit plot as per the plea raised by defendant No.2 was agreed to be sold by the plaintiff on 5th July 1988 there was every possibility of the said documents being withheld by defendant No.2 who admittedly was pursuing the case of the plaintiff with the DDA for getting the building plans etc. sanctioned. Thus there appears to be grain of truth in the aforesaid statement made by the plaintiff. In my opinion, no advantage can be derived by reason of the fact of the said original documents being in possession of defendant No.2.

13. Plaintiff's case is that he was dispossessed from the suit plot on 30th April 1990 while according to defendant No.2 he came to occupy the plot on 12th /13th June 1988 and he commenced construction thereon on those dates itself. Ex. PW2/12 is the copy of letter on which considerable reliance was placed on behalf of the defendants written in Hindi. It is addressed to the President/Secretary of the said Society and reads as under:-

"Apse nivedan hai ki main apna plot no.87 shuru kar raha huin aur ek temporary shed jisme saman rakhnay ke liye plot no.88 mein daal raha huin. Aap se anurodh hein ki aap plot banane aur shed dalane ki anumati de. Apki ati kirpa hogi."

14. On the left hand margin of the letter there is an endorsement presumably in the hand of the Secretary of Society that if the owner of Plot No.88 would like to raise construction on his plot, the plaintiff will have to remove the shed and permission is granted subject to this condition. The signature of the plaintiff is appended in English towards the end on right hand side of this letter. It is in the testimony of plaintiff (PW-5), as discussed above, that he can write in Hindi and the original of Ex. PW2/12 was blank at the time he signed it; that one, or two papers signed by him were blank and the endorsement at point "A" probably is in the hand of Kartar Singh, the then Secretary of the Society. As against this, it is in the aforesaid testimony of DW-2 (defendant No.2) that the original of Ex. PW2/12 is in his hand and signed by the plaintiff; that this letter was submitted to the Society for seeking permission to put a jhuggi on the plot and kale Ram, an official of Society demarcated the suit plot on the site and gave its possession to him. It is further in his deposition that the possession of suit plot was taken on 12th/13th June, 1988 and construction was commenced simultaneously. It is pertinent to note that the plaintiff allegedly agreed to sell the suit plot for Rs.1,10,000/- under the agreement Ex. DW2/1 and he allegedly received that amount against the receipt Ex. DW2/8 on 5th July 1988. That being so, there was hardly any occasion on the part of defendant No.2 to have obtained the possession of the suit plot on 12th/13th June 1988 when there was no agreement to sell the plot nor sale consideration thereof paid to the plaintiff. Kale Ram who is alleged to have demarcated the plot and delivered possession, has not been examined by defendant No.2. The original of Ex. PW2/12 could well have been written by the plaintiff who knows Hindi. Viewed in this light, the said statement of the plaintiff that the original of said Ex. PW2/12 was blank when he put his signature thereon, cannot be brushed aside merely on the ground of absence of pleadings of the plaintiff in regard to having signed some of the blank papers by him. The plea regarding possession of the suit plot having been handed over to defendant No.2 on the said dates being false deserves to be rejected. It may be noticed that on the plaintiff's I. A. No.4621/90 by the order dated 8th June 1990 Sh. Bimal Roy Jad was appointed as Local commissioner and directed to visit the suit plot and to file report as to the existing state of possession and construction. The Local commissioner after notice visited the suit plot on 15th June, 1990 and his report is placed on the file. The extent of construction found at the site as noted in this report does not support the version of defendant No.2 about the construction having been commenced on 12th/13th June 1988. Thus the case of the plaintiff that construction work was started by the defendants on 30th April 1990 and not in the month of June 1988 as alleged, is to be accepted. Decision in S. Palanielu's case (supra) has no applicability to this case. Admissions on the part of the plaintiff in regard to averments in paras 3 & 4 of the previous suit and in para 15 of the plaint of this suit being incorrectly made, are inconsequential. This covers the submissions listed at (b) and (c) above.

15. This brings me to the main controversy about alleged execution of the agreement to sell etc. In his testimony the plaintiff(PW-5) has emphatically denied his signatures on the agreement to sell Ex. DW2/1, construction agreement Ex. DW2/2, two general power of attorneys Ex. DW2/3 and DW2/4, three special power of attorneys Ex. DW2/5 to DW2/7, receipt Ex. DW2/8, will Ex. DW2/9 and three affidavits Ex. DW2/10 to Ex. DW2/12 and also receipt of Rs.1,10,000/- by way of sale consideration of the suit plot from defendant No.2. Sunil Gupta, DW-3 and Wazir Chand are alleged to be the attesting witnesses to the said documents excepting the three affidavits. Wazir Chand has not been examined by defendant No.2 while Sunil Gupta, DW- 3, friend of defendant No.2 and his sister-in-law being married to him, has not only not supported the statement of defendant No.2 by deposing that the said documents were signed by the plaintiff and amount of Rs.1 lakh and odd paid to him sometime in May instead of 5th July 1988 but has also rendered the testimony of defendant No.2 highly doubtful. In the report Ex. PW4/4 A. K. Gupta, Director in charge, FSL has given convincing reasons in support of the conclusions reached by him about the writers of both the aforementioned sets of signatures being different. During the course of argument relying on section 73 of the Evidence Act it was submitted by Sh. Y.P. Ahuja for the plaintiff that this court should compare the disputed and admitted signatures appearing on a number of documents and reach its own conclusion regarding the authorship of both the sets of signatures. Statement of the plaintiff was concluded on different five dates and the Joint Registrar who recorded that statement, also obtained the signatures of the plaintiff on each page of his statement. Having carefully perused both the sets of the disputed and admitted signatures as also the signatures of the plaintiff obtained on his statement I have no hesitation in recording the finding that the disputed signatures on Ex. DW2/1 to DW2/12 are not that of the plaintiff. I am tempted to reproduce below the observations made in Para No.8 on page 346 of the report in the decision in Guljar Ali Vs. State of Himachal Pradesh, JT 1998(4) SC 342 to which my attention was drawn on behalf of the plaintiff in support of the contention that no reliance can be placed on the statement of DW-4 Mrs.R. K. Wiz, handwriting expert, examined by the defendants:-

"If those letters are genuine, no doubt they would reflect the mind ;of A-1 and A-2 towards the deceased. PW 20 (M. L. Sharma), Government Examiner on questioned documents, after comparing the handwriting in the said letters gave an opinion that both were written by the accused. An attempt was made by the accused, through the evidence of DW-1 (N. K. Jain who claimed to be an expert in the science of handwriting) to show that opinion of the Government Examiner is basically faulty. The High Court has observed that " there is a natural tendency on the part of an expert witness to support the view of the person who called him" and preferred the opinion of PW 20 M. L. Sharma. The said observation of the High Court cannot be downstaged, for many socalled experts have been shown to be remunerated witnesses making them selves available on hire to pledge their oath in favour of the party paying them."

16. Having considered the reasons recorded in the report Ex. DW4/4 I am not inclined to rely on the testimony of said Mrs.R. K. Wiz, DW-4. Defend- ant No.2 he has not offered any plausible explanation whatsoever why did he not get the documents out of the documents Ex. DW2/1 to 12 which could have been registered, got registered with the concerned Sub Registrar or taken any action pursuant to clause 6 of the agreement to sell in question. The testimony of defendant No.2 in regard to the plaintiff having executed the agreement to sell in question and payment of Rs.1,10,000/- to him against the receipt Ex. DW2/8 cannot be accepted. From the said discussion it must follow that the plaintiff had neither agreed to sell the suit plot nor received the amount of Rs.1,10,000/- and his signatures on the said agreement to sell and receipt etc. were fabricated by or at the instance of defendant No.2(DW-2). Issues are answered accordingly.

ISSUE NO.11

It is even admitted by the plaintiff that the construction presently existing on suit plot was got raised by the defendants and effect thereof has been specifically dealt with in the preceding issues decided by me.

Since the plaintiff (PW-5) has made allegations against both the defendants the defendant No.1 is atleast a proper party to the suit. Issues are decided against the defendants.

ISSUE NO.1

Looking at the reliefs claimed in the suit, no fault can be found in the frame of suit nor was the same pointed out during the course of argument on behalf of the defendants.

ISSUE NO.2

Defendants being the trespassers on the suit plot, plea of Section 53A, T.P. Act is not available to them.

ISSUE NO.5

In Para No.27 of the plaint the value of suit for purpose of possession has been fixed at Rs.2,45,000/- and for permanent injunction at Rs.130/- and requisite court fee affixed. It was not pointed out on behalf of defendants how the said valuations which otherwise seem to be proper, were not in accordance with law.

ISSUE NO.6

Ex. PW1/2 is the copy of order dated 22nd January 1991 dismissing in default the Suit No.312/90 by the concerned Sub Judge. After this order, this issue has been rendered infructuous.

ISSUE NO.14

On this issue reference only to the statements of N. K. Jain, Secre- tary, Vardhman Cooperative House Building Society, PW-2 and Ram Pal, Assistant in Cooperative Societies Cell, DDA, PW-3 are relevant. PW-2 deposed that the plaintiff still continues to be the member of Society and till date suit plot continues to be in his name. PW-3 stated that PW2/11 is the copy of the sub lease in favour of the plaintiff and as per the record of DDA the plaintiff continues to be the sub lessee of the suit plot till date. In the face of these statements, the issues are answered against the defendants.

RELIEF

In view of my findings on the said issues, decree of possession with costs in respect of plot No.87, Madipur Village is passed in favour of the plaintiff and against defendants. However, the defendants are allowed one month time from today to handover the vacant possession of the said plot after demolition of the construction made thereon, to the plaintiff failing which the plaintiff will be entitled to get back the possession of plot after demolition of construction at the expense of defendants through the court. By means of decree of permanent injunction the defendants are also restrained from subletting/ parting with possession/ transferring/ alienating or raising further construction on the plot in the meantime.