Kundan Lal Gera & Anr. vs Krishan Lal & Anr.
2009 Latest Caselaw 4568 Del

*          HIGH COURT OF DELHI : NEW DELHI

+          C.S. [OS] No. 260/2007

                                 Reserved on:
%                                Decided on:     10th November, 2009

Kundan Lal Gera & Anr.                          ...Plaintiffs
                   Through : Ms. Kamlakshi Singh, Adv.

                       Versus

Krishan Lal & Anr.                                    ....Defendants
                       Through : Mr. Sunil Aggarwal, Adv. for
                                 defendant no. 2

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                     No

2. To be referred to Reporter or not?                  No

3. Whether the judgment should be reported             No
   in the Digest?

MANMOHAN SINGH, J.

1. This suit has been filed by the plaintiffs for declaration,

cancellation of a decision dated 17 th December, 2003 purported and

described as „General Power of Attorney‟ and permanent injunction.

2. The brief facts for deciding the present case are that the

defendant no. 1 (hereinafter referred to as „defendant‟) was the

allottee/owner in possession of Plot No. 11, Block B-2, Mianwali Nagar,

Delhi measuring 352.26 sq. yds. (hereinafter referred to as „the suit

property‟) by virtue of sub lease deed dated 31st March, 1991.

3. Allegedly, the suit property was sold by the defendant to the

plaintiffs on 21st October, 1986 by means of execution of documents

such as power of attorney, agreement to sell, Will etc. executed in

favour of plaintiff no. 2. The plaintiffs on the same date handed over

sale consideration of Rs. 48000/- to the defendants through bank draft.

An affidavit was also executed by the defendant on 21st October, 1986

stating that he had sold the suit property to the plaintiffs and executed

the abovesaid documents. Possession of the suit property was also

handed over by the defendants to the plaintiffs on 21 st October, 1986.

4. As per the plaintiffs, the suit property remained unbuilt and

the plaintiffs have been exercising ownership rights on the same since

21st October, 1986. A sum of Rs. 3,50,000/- was deposited by the

plaintiff no. 1 to the DDA as composition fees for the suit property vide

challan dated 17th October, 2001.

5. The plaintiffs in January, 2003 negotiated for selling the suit

property to one Mr. Chandan Aggarwal, defendant no. 2 herein but the

final deed did not materialize.

6. The plaintiffs contended that the defendant dishonestly on

gaining knowledge about the said negotiations between the plaintiffs

and Mr. Chandan Aggarwal executed a document purportedly described

as Cancellation of General Power of Attorney on 17 th December, 2003

whereby the defendant intended to cancel the registered General Power

of Attorney dated 21st October, 1986 executed by the defendant in

favour of plaintiff no. 1. The said Cancellation of General Power of

Attorney was also registered by the defendant with the Sub Registrar,

West District, Delhi.

7. Contention urged by the plaintiffs is that the said document

was executed by the defendant without sending or communicating any

prior notice to the plaintiffs to gain unlawfully. The plaintiff no. 1

came to know about the execution of the said document through the

property broker M/s Durga Estate in February, 2004 and applied to the

Sub Registrar, West District, Delhi for its certified copy which was

prepared on 20th February, 2004. On contacting the defendant regarding

the cancellation of the said documents, the defendant stated that the

market value of the plot had increased and demanded more money if the

plaintiffs want to cancel the said document.

8. The plaintiffs submit that the agreed sale consideration has

been paid by the plaintiffs to the defendant through bank draft which

has been accepted and encashed and the money appropriated by the

defendant. The defendant also executed irrevocable documents in favour

of the plaintiffs acknowledging the sale of the suit property by the

defendant in favour of the plaintiffs on 21 st October, 1986. The

plaintiffs contend that the act of the defendant executing a cancellation

of General Power of Attorney after almost 17 years of General Power of

Attorney registered in favour of plaintiff no. 1 is null and void ab initio.

9. The plaintiffs thus filed the present suit seeking a decree of

declaration and cancellation of the purported document described as

cancellation of General Power of Attorney dated 17 th December, 2003 as

null and void. The reliefs sought by the plaintiffs in the plaint read as

under:-

"a) Pass a decree of declaration declaring as null and void ab initio the document dated 17.12.2003 purported and described as the "Cancellation of General Power of Attorney".

b) Pass a decree of Cancellation cancelling the document dated 17.12.2003 purported and described as the "Cancellation of General Power of Attorney".

c) Pass a decree of permanent injunction in favour of the plaintiffs and against the defendant restraining the defendant and his agents/successors and assignees from interfering in the ownership rights of the plaintiffs qua the suit property/plot no. 11, Block B-2, Mianwali Nagar, Delhi and from executing any document qua the suit property, save and except documents in favour of the plaintiffs, creating any third party rights in favour of any other than the plaintiffs."

10. Summons were issued in the present suit on 13 th February,

2007. On the same date, an ex parte ad interim order was also passed in

favour of the plaintiffs restraining the defendant, his agents, successors

and assignees from executing any document purporting to sell, transfer,

alienate, encumber or creating any third party rights qua the suit

property being Plot No. 11, Block B-2, Mianwali Nagar, Delhi. On 18th

April, 2007, the defendant filed the written statement but no one

appeared on behalf of the defendant after 23 rd October, 2007. The

defendant was thus proceeded ex-parte on 25th November, 2008 and the

interim orders were made absolute.

11. During the pendency of the suit, the application being I.A.

No. 6036/2007 was filed by the applicant, Sh. Chandan Aggarwal for

impleadment in the present proceedings. The application was allowed

and the applicant Mr. Chandan Aggarwal was impleaded as defendant

no. 2. He submits that he is the owner and in possession of the suit

premises as plaintiffs entered into an Agreement to Sell dated 29th

January, 2003 with him pursuant to which he paid a sum of Rs. 18 lac to

the plaintiffs and in part performance of the agreement, the physical

possession of the suit premises was handed over by the plaintiffs to him.

12. Mr. Chandan Aggarwal, defendant no. 2 herein contends that

the plaintiffs failed to execute the sale deed in his favour who in turn

filed the suit being CS (OS) No. 1525/2007.

13. The defendant no. 1 by virtue of an order dated 25 th

November, 2008 was directed to be proceeded ex parte. The plaintiffs

thereafter led their ex parte evidence in the form of an affidavit of Mr.

Kundan Lal Gera, plaintiff no. 1 herein (Exhibit PW-1/A) and have

proved various documents as Ex. PW-1/1 to Ex. PW-1/10. The plaintiff

no. 1 has proved on record the lease deed as Ex. PW-1/1, agreement to

sell as Ex. PW1/2, registered General Power of Attorney as Ex. PW-1/3,

registered Will as Ex. PW-1/4, Special Power of Attorney as Ex. PW-

1/6 and the affidavit of defendant no. 1 as Ex. PW1/7 to Ex. PW1/9.

14. The learned counsel for defendant no. 2 made the statement

in the court on 15th September, 2008 and on 25th November, 2008 that

he has no objection to the prayer made in the suit being allowed since no

relief has been sought by the plaintiff against defendant no. 2.

15. In view of the above, as the case of the plaintiffs has gone

unrebutted and the plaintiffs have proved on record all documents

executed on 21st October, 1986 pertaining to the sale of property being

Plot No. 11, Block-B-2, Miawali Nagar, Delhi to them by the defendant

and defendant no. 2 also has no objection to the prayers sought by the

plaintiffs in the plaint. The suit is decreed in favour of the plaintiffs as

per prayer. Decree sheet be prepared accordingly. No costs.

MANMOHAN SINGH, J NOVEMBER 10, 2009 nn