Shri Rakesh Kumar Juneja & Ors vs Shri Rakesh Kathuria & Ors
2008 Latest Caselaw 1464 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      CS (OS) No. 2762/1999

%                                  Date of decision : 28.08.2008

SHRI RAKESH KUMAR JUNEJA & ORS                          ....... Plaintiffs
                              Through:    Mr. R.M. Bagai, Advocate

                                 Versus

SHRI RAKESH KATHURIA & ORS                      ....... Defendants
                                          Ex parte.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may             Yes
      be allowed to see the judgment?

2.    To be referred to the reporter or not?          Not Necessary

3.    Whether the judgment should be reported
      in the Digest?                          Not Necessary


RAJIV SAHAI ENDLAW, J.

1. The plaintiffs have instituted this suit under Section 31 of the

Specific Relief Act, 1963 for cancellation of documents. It is inter

alia the case of the plaintiffs that they are the owners of property

no.E-255, Greater Kailash-II, New Delhi. The colony of Greater

Kailash-II was developed by DLF Housing & Construction Ltd.; plot

no. E-255, Greater Kailash-II, New Delhi, was sold by DLF Housing &

Construction Ltd. to Smt. Gurdial Kaur vide registered sale deed

dated 27.7.1964; Smt. Gurdial Kaur vide registered sale deed dated

21.3.1966 sold the said plot to Shri Thakur Singh and Sh. Lashkar

Singh; the said Shri Thakur Singh and Shri Lashkar Singh vide

registered sale deed dated 14.12.1970 sold the said plot to Shri

Satender Singh; that the said Shri Satender Singh vide registered

sale deed dated 2.5.1986 sold the said plot to the plaintiffs no.1 & 2

and their deceased father Shri Nand Lal Juneja and put them into the

vacant peaceful possession of the said plot of land; that Shri Nand

Lal Juneja expired on 28.3.1991 bequeathing his 1/3rd share in the

property to the plaintiff no.3; the plaintiff no.3 is the mother of the

plaintiffs no.1 & 2; that the plot is mutated in the record of the MCD

in the name of the plaintiffs.

2. It is further the case of the plaintiffs that they came across a

public notice in the newspaper Hindustan Times of 8.11.1996 of the

Advocate for the defendant no.3 Punjab & Sind Bank, informing the

public that the aforesaid property no. E-255, Greater Kailash-II, New

Delhi, had been mortgaged by the defendants no.1 & 2 in favour of

the defendant no.3 bank. The plaintiffs claimed to have got sent a

legal notice to the Advocate of the defendant no.3 Bank claiming

their ownership and disclaiming any right of the defendants no.1 & 2

to the said property.

3. It is further the case in the plaint that some other persons had

also asserted ownership in respect of the said plot of land on the

basis of a bogus gift deed dated 23.6.1966 purported to be executed

by Smt. Gurdial Kaur; yet another defendant in that suit, and yet

some other persons had claimed that Smt. Gurdial Kaur executed a

will dated 22.7.1976 in his favour prior to her demise on 23.9.1976

and such person had claimed to have become the owner of the plot

on the basis of the said Will and had executed four sale deeds all

dated 11.9.1989 in favour of four different persons with respect to

the 1/4th undivided share in the said plot of land. The plaintiffs

claimed that they were forced to file the suit no.3416/1992 in this

court for cancellation of the said Gift Deed and sale deeds and this

court vide judgment dated 6.10.1998 decreed the suit of the

plaintiffs and held the four Sale Deeds and Gift Deed to be void.

4. The plaintiffs pleaded that they had learnt that the defendant

no.1 had claimed before the defendant no.3 Bank to be the owner of

the said plot of land on the basis of a sale deed registered as

document no.1411 in Additional book no.1, volume no.8185 at pages

72 to 76 registered with the office of Sub-Registrar, Delhi (defendant

no.4) and Rectification deed thereof registered with the Sub-

Registrar-III, Delhi, as document no.5775 on 12.8.1994. Similarly, it

was claimed that the defendant no.2 vis-a-vis the defendant no.3

bank claimed himself to be the owner of the other half share of the

said plot of land on the basis of the sale deed registered as document

no.1417 in Additional book no.1, volume no.8185, at pages 77 to 81

on 25.2.1994 and Rectification deed thereof registered as document

no.5776 registered with the defendant no.4 Sub-Registrar, on

12.8.1994.

5. It was the claim of the plaintiffs that the aforesaid two sale

deeds purportedly executed by Smt. Gurdial Kaur in favour of

defendants no.1 & 2 respectively and both registered on 25.2.1994

and the rectification deeds both registered on 12.8.1994 set up by

the defendants no.1 & 2 are bogus; Smt. Gurdial Kaur had died at

Chandigarh on 23.9.1976. It is further claimed that Smt. Gurdial

Kaur had in any case sold the plot on 21.3.1966 and was not the

owner thereof thereafter and could not have executed the sale deed

dated 25.2.1994. Several other grounds have also been taken to

show falsity of the documents with respect to the plot set up by the

defendants no.1 & 2 in their favour.

6. The plaintiffs accordingly filed the present suit and since the

sale deeds and the rectification deeds alleged to have been forged by

the defendants no.1 & 2 in their favour with respect to the plot of the

plaintiffs had been deposited by the defendants no.1 & 2 with the

defendant no.3 Bank, the defendant no.3 Bank was impleaded as

party. The Sub-Registrar, Asaf Ali Road, New Delhi, and the Sub-

Registrar, Vikas Sadan, New Delhi, were impleaded as defendants

no.4 & 5 as proforma defendants.

7. That neither of the defendants appeared in spite of being

served and were proceeded ex parte vide order dated 13.4.2005 and

the plaintiffs were directed to lead their ex parte evidence. The

defendants remain ex parte.

8. The plaintiffs have in their ex parte evidence proved the sale

deed dated 2.5.1986 with respect to the said plot of land executed by

Shri Satender Singh in favour of plaintiffs no.1 & 2 and their father

Shri Nand Lal Juneja as Ex. PW1/1 and the letter of mutation of the

said plot of land in favour of the plaintiffs as Ex. PW1/2. The

plaintiffs have proved the advertisement of the advocate of the

defendants no.3 bank from which the plaintiffs learnt of the

documents deposited by the defendants no.1 & 2 with the defendant

no.3 Bank as Ex. PW1/3 and the correspondence with the Bank as

Ex. PW1/4 to Ex. PW1/8. The plaintiffs have proved the certified

copy of the ex parte judgment dated 6.10.1998 in Suit No. 3416/1992

as Ex. PW1/9. The plaintiffs have proved the certified copy of the

bogus rectification deed of which cancellation is sought as Ex.

PW1/10 & Ex. PW1/11. The plaintiffs have proved the certified copy

of the death certificate of Smt. Gurdial Kaur, showing her date of

death as 23.9.1976 as Ex. PW1/12. It has further been deposed that

the certified copies of the bogus sale deeds both dated 25.2.1994

were applied for by the plaintiffs, but were not provided for by the

office of the Sub-Registrar.

9. Needless to add that the evidence of the plaintiffs remains

unrebutted.

10. After the conclusion of ex parte evidence, this court, finding

that the financial interest of the defendant no.3 Bank was likely to be

affected by the outcome of the suit, issued notice to the defendant

no.3 bank even though it had not cared to appear and contest the

suit. Pursuant thereto, the counsel for the defendant no.3 bank

appeared and an affidavit of the Chief Manager, Assets Recovery

Branch-I of the defendant no.3 Bank has been filed. It is stated in

the said affidavit that one M/s. Univest Leasing and Finance Pvt.

Ltd., had availed of financial assistance from the defendant no. 3

Bank and had offered property no. E-252, Greater Kailash-II, New

Delhi, as security; that the Bank filed an application u/s. 19 of the

Debts Recovery Act and in which a recovery certificate for recovery

of Rs. 1,30,86,160/- with interest was issued; that the bank upon

realizing that the security offered by the defendants no.1 & 2 was

forged had filed a criminal complaint against the defendants no.1 &

2 and others and which was pending in the court of Metropolitan

Magistrate, Patiala House Courts; that in the said case a report was

called from the SHO Connaught Place, who had reported that the

original documents of title of property no. E-252, Greater Kailash II,

New Delhi, which were offered to create equitable mortgage for the

facilities availed by M/s. Univest Leasing and Finance Pvt. Ltd. were

forged documents. Though the affidavit refers to property no. E-252,

Greater Kailash-II, New Delhi, but the same appears to be a

typographical error in as much as the final report of enquiry

conducted u/s. 202 Cr.PC attached to the affidavit gives the property

no. E-255, Greater Kailash-II, New Delhi. Also the report of the

advocate for the defendant no.3 bank enclosed to the said affidavit

gives the number of the property as E-255, Greater Kailash-II, New

Delhi.

11. Mr. B.T. Singh, advocate for the defendant no.3 bank on

31.7.2008 also stated that the defendant no.3 bank does not claim

any rights with respect to the property no. E-255, Greater Kailash-II,

New Delhi, and does not want to contest the suit and that the bank

had in fact admitted the position that the title deeds of the said

property deposited by the defendants no.1 & 2 with the defendant

no.3 bank were forged and fabricated.

12. The plaintiff had sought production of the sale deeds dated

25.2.1994 and the rectification deeds of which cancellation is sought

in the present case, but the counsel for the defendant no.3 bank

stated that the documents were not available with the bank also and

were lying in the court of Mr. Pritam Singh, Metropolitan

Magistrate, Delhi, in the aforesaid complaint case filed by the bank

against the defendants no.1 & 2.

13. That as aforesaid the certified copies of the two sale deeds

dated 25.2.1994 purported to be executed by Smt. Gurdial Kaur of

which cancellation is sought have not been produced before the

court. However, the certified copies of the rectification deeds dated

12.8.1994 also purported to be executed by Smt. Gurdial Kaur have

been proved as Ex. PW1/10 & Ex. PW1/11. The same refer to sale

deeds having been executed by Smt. Gurdial Kaur in favour of the

defendants no.1 & 2 on 25.2.1994. The death certificate of Smt.

Gurdial Kaur proved as Ex. PW1/12 establishes that Smt. Gurdial

Kaur died on 23.9.1976. Thus question of her executing the sale

deed on 25.2.1994 does not arise. In the facts and circumstances

aforesaid, the plaintiffs have made out a case that the sale deeds

dated 25.2.1994 and the rectification deeds dated 12.8.1994 are

forged and fabricated documents. Since the same relate to the

property of which the plaintiffs have established themselves to be

the owner, the plaintiffs are entitled to have the said documents

cancelled.

14. A decree is thus passed in favour of the plaintiffs and against

the defendants declaring the following documents :

i) Document no.1411 in Additional book no.1, volume no.8185 at

pages 72 to 76 registered with the office of Sub-Registrar,

Delhi,

ii) Rectification deed registered with the Sub-Registrar-III, Delhi,

as document no.5775 on 12.8.1994,

iii) Sale deed registered as document no.1417 in Additional book

no.1, volume no.8185, at pages 77 to 81 on 25.2.1994,

iv) Rectification deed registered as document no.5776 registered

with the Sub-Registrar, on 12.8.1994,

as null and void and cancelling the same. However, since the

original of the documents could not be brought before the court, it is

ordered that upon the plaintiffs producing a certified copy of this

judgment and decree, the plaintiffs shall be entitled to have an

endorsement of cancellation made on the originals of the said

documents, wheresoever they may be and by the person

incharge/custody of the said documents. A copy of this judgment

and decree be also sent to the Sub-Registrars, defendants no.4 & 5

who shall on the registers maintained by them make entry of the

cancellation of the documents aforesaid. The decree sheet be drawn

up. The plaintiffs shall also be entitled to costs of the suit from the

defendants no.1 & 2.

RAJIV SAHAI ENDLAW (JUDGE)

August 28, 2008 k