Rajesh Kumar vs Madan Lal & Another
2010 Latest Caselaw 5313 Del

        THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on: 19.11.2010
                     Judgment Pronounced on: 23.11.2010

+           CS(OS) No.1325/2007

RAJESH KUMAR                                    .....Plaintiff

                            - versus -

MADAN LAL & ANOTHER                           .....Defendants

Advocates who appeared in this case:
For the Plaintiff:      Mr. H.M.Singh, Advocate.

For the Defendant:            None.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1.

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

2. To be referred to the Reporter or not? No

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

V.K. JAIN, J

1. This is a suit for declaration, permanent injunction

and mandatory injunction. It has been alleged in the plaint

that defendant No.2 Golden Projects Ltd. which was the

owner of agricultural land described in para 2 of the plaint,

authorized one Rakesh Kumar Arora as its representative to

implement/effect the sale/transfer of the aforesaid land. He

was further authorized to sale/transfer/dispose of the

aforesaid land to any person and to sign all relevant

documents on receipt of sale consideration. On 02.04.2003,

Rakesh Kumar Arora entered into an agreement to sell the

aforesaid land to defendant No.1 Madan Lal for a

consideration of Rs.50 lakhs and executed documents such

as Agreement to Sell, Power of Attorney, Receipt, Affidavit,

Will and Possession Letter in his favour. Defendant No.1

Madan Lal agreed to sell 70 bighas 14 biswas of land out of

the aforesaid land to one Sangeet Aggarwal vide Agreement

to Sell, Power of Attorney, Will, Possession Letter and

received the sale consideration from him. He sold 48 bighas

17 biswas out of Khasra No. 7/15/1 (3-16), 14/1 (3-16),

7/2 (2-8), 18/2 (2-1), 22/2 (3-8), 23(4-9), 5(2-16), 6(4-16),

3/2(1-19), 4(3-10), 7/1(2-8), 17 Min.(4-16), 24(4-16),

19(4-8) to the plaintiff and received the sale consideration.

The plaintiff claims to be in actual physical possession of

the aforesaid land as its owner. It has also been alleged

that defendant No.2 became dishonest and passed a

relation authorizing another person to deal with the

aforesaid land. It has been further alleged that on

11.07.2007, a number of persons came to the land of the

plaintiff and claimed to be its owner and expressed intention

to fence the aforesaid land. Thereafter, two brokers

approached the plaintiff and informed him that the suit land

was available in market for sale by defendant No.2. The

plaintiff has, therefore, sought a declaration that he is the

lawful owner in possession of the suit land. He has also

sought permanent injunction restraining the defendants

from interfering with his possession and has further sought

mandatory injunction directing defendant No.1 to execute

the sale deed in his favour.

2. The defendants were proceeded ex-parte since they

did not appear despite service on them.

3. The plaintiff has filed his own affidavit by way of

ex-parte evidence in which he had supported on oath, the

case set up in the plaint. He also stated that he was in

possession of the suit land having purchased it from

defendant No.1 Madan Lal by paying the entire sale

consideration.

4. Ex.PW-1/A is the Power of Attorney purported to

have been executed by Rakesh Kumar Arora, Authorized

Signatory of Golden Projects Ltd. in favour of defendant

No.1 Madan Lal, in respect of the land described in the

document. The Power of Attorney has been executed by

Rakesh Kumar Arora as Authorized Signatory of defendant

No.2 Golden Projects Ltd. and he claimed such an authority

by virtue of a Resolution dated 30.08.2000 in his favour.

Ex.PW-1/B is the affidavit sworn by Rakesh Kumar Arora

claiming to be Authorized Signatory of Golden Projects Ltd.

and confirming sale of the land mentioned in para-1 of the

affidavit to defendant No.1 Madan Lal. He has also

confirmed having delivered vacant possession of the

aforesaid land to the purchaser on the spot. Ex.PW-1/C is

the possession letter whereby possession purports to have

been delivered by Rakesh Kumar Arora to defendant No.1

Madan Lal. Ex.PW-1/D is the receipt executed by Rakesh

Kumar Arora on behalf of Golden Projects Ltd. However, the

document does not disclose the amount received by Rakesh

Kumar Arora. The column of the sum has been left blank in

this document. The receipt also refers to Agreement to Sell

dated 02.04.2003 between the parties. Ex.PW-1/E is the

receipt executed by Rakesh Kumar Arora while receiving

Rs.32,50,000/- from defendant No.1 Madan Lal towards

sale consideration in respect of the land described in the

document.

5. Ex.PW-1/G is the Power of Attorney purported to

have been executed by defendant No.1 Madan Lal in favour

of the plaintiff Rakesh Kumar Arora. Ex.PW-1/N is the

Agreement to Sell executed by defendant No.1 Madan Lal in

favour of the plaintiff. In this document, he claimed to be

the owner in possession of the land measuring 48 bighas 17

biswas out of Khasra No. 7/15/1(3-16), 14/1 (Min) (1-4),

5(2-16), 6(4-16), 7/2 (2-8), 14/1 Min. (2-12), 18/2 (2-1),

22/2 (3-8), 23(4-9), 3/2(1-9), 4(3-10), 7/1(2-8), 17(4-6),

24(4-16), 19(4-8), 29/2/1 (1-6), 9/2(2-0), 11/1(1-18),

12/1(1-4), 22(4-16), 23(4-16), 27(0-7), 13(4-16), 18(4-16),

19(4-16), 20(4-16), 21(4-9), 7(4-16), 8(4-16), 9/1 (12-16),

3(4-8), 4(4-8), 11/2(2-16), 2/2 (2-12), 12/2 (3-12).

Ex.PW-1/I is the receipt of Rs.7,50,000/- executed by

defendant No.1 in favour of the plaintiff. Ex.PW-1/J is the

Possession Letter whereby possession of the aforesaid land

measuring 48 bighas 17 biswas purports to have been

delivered by him to the plaintiff. Ex.PW-1/L is the affidavit

of defendant No.1 Madan Lal claiming to be owner in

possession of land measuring 48 bighas 17 biswas in Village

Issapur, Delhi and confirming that he had entered into an

agreement for sale and purchase of the aforesaid property

with plaintiff Rajesh Kumar and delivered vacant possession

of the said land to the purchaser.

6. This is plaintiff's own case that the land subject

matter of this suit was owned by defendant No.2 Golden

Projects Ltd. and by passing a Resolution on 30.08.2000,

the Board of Directors of Golden Projects Ltd. had

authorized Shri Rakesh Kumar Arora to sell the aforesaid

land on behalf of the Company and to execute the sale deed

in favour of the buyer. However, no such resolution has

been proved by the plaintiff before this Court. Though one

document purporting to be photocopy of the Minutes of the

Meeting of Board of Directors of Golden Projects Ltd. held on

30.08.2000 has been filed by the plaintiff, the document has

not been proved and, therefore, has not even been exhibited.

It has simply been marked as mark 'A'. The document was

required to be proved by summoning the minutes of the

meeting of the Board of Directors of defendant No.2, Golden

Projects Ltd., which has not been done. Even Mr Rakesh

Kumar has not been produced in the witness box to prove

that defendant No.2 Golden Projects Limited had authorized

him to sell the suit land on its behalf. In these

circumstances, it does not stand proved that the Rakesh

Kumar was duly constituted attorney of defendant No.2

Golden Projects Limited and was authorized by it to sell the

suit land on its behalf. If that be so, he could not be sold or

transferred the aforesaid land to defendant No.1 Madan Lal

or to any other person. Consequently, the transaction, if

any, between Rakesh Kumar and defendant No.1 Madan Lal

does not bind defendant No.2. It would be pertinent to note

here that no sale deed is alleged to have been executed

either by Rakesh Kumar in favour of defendant No.1 Madan

Lal or by defendant No.1 in favour of the plaintiff. In these

circumstances, it cannot be said that defendant N.1 Madan

Lal was the owner of the land which he had agreed to sell to

the plaintiff and possession of which was delivered by him

to the plaintiff. Since defendant No.1 did not acquire

ownership rights in the suit land, he could not have

transferred any such rights to the plaintiff. In any case, no

sale deed is alleged to have been executed by defendant

No.1 Madan Lal in favour of the plaintiff. Since the plaintiff

did not acquire ownership rights in the suit land, the relief

of declaration sought by him cannot be granted to him.

7. As regards relief of mandatory injunction, since no

agreement to sell has been executed by defendant No.2 in

favour of the plaintiff, it cannot be directed to execute a sale

deed, transferring the suit land to the plaintiff. Since

ownership of land in question continues to vest in defendant

No.2 Golden Projects Limited, defendant No.1 Madan Lal,

who himself is not the owner of the suit land, cannot be

directed to execute a sale deed in respect of the aforesaid

land in favour of the plaintiff. The relief of mandatory

injunction sought by the plaintiff, therefore, cannot be

granted to him.

8. As regards relief of permanent injunction, since the

plaintiff has not become the owner of the suit land and the

ownership of the same continues to vest in defendant No.2

Golden Projects Limited, he is not entitled to any injunction

against defendant No.2. Since there is no evidence of

possession of the suit land having been delivered to the

plaintiff either by defendant No.2 or by anyone duly

authorized by defendant No.2 in this regard, he is not

entitled to injunction against his dispossession by

defendant No.2. As regards grant of permanent injunction

against dispossession of the plaintiff by defendant No.1, I

find that no cause of action in this regard has been pleaded

by the plaintiff against defendant No.1. This is not the case

of the plaintiff that defendant No.1 had attempted to

dispossess him from the suit land or to interfere with his

possession. Therefore, the plaint does not disclose any

cause of action against defendant No.1 as far as the relief of

permanent injunction is concerned.

9. It would also be relevant to take note of the fact

that though the plaintiff has sought execution of sale deed

by defendant No.1 in his favour, he has not paid the Court

Fee which is required to be paid on the relief of specific

performance of a contract. It would hardly make any

difference that the plaintiff, instead of seeking specific relief

of the agreement, alleged to have been executed by

defendant No.1 in his favour has sought mandatory

injunction, claiming the same relief. What the Court has to

see is the substantive relief being claimed by the plaintiff

and the Court cannot go by the wording in which the relief,

claimed by the plaintiff is couched. In pith and substance,

the plaintiff is claiming specific performance of the

agreement to sell, alleged to have been executed by

defendant No.1 in his favour on 15th April, 2004 for a sale

consideration of Rs 7,50,000/- and, therefore, if he wanted

execution of sale deed in his favour in performance of that

agreement, he was required to pay Court Fee on the sale

consideration of Rs 7,50,000/-. The plaintiff, on the other

hand, has valued at Rs 130 for this purpose for the purpose

of this relief and has paid requisite Court Fee on that

amount. For this reason, the plaint to the extent it pertains

to relief of mandatory injunction, sought by the plaintiff, is

liable to be rejected.

ORDER

10. For the reasons given in the preceding paragraphs,

the suit is hereby dismissed.

Decree sheet be prepared accordingly.

(V.K. JAIN) JUDGE

NOVEMBER 23, 2010 'SN'/bg