Kamla Rani & Anr. vs Joginder Singh & Ors.
2011 Latest Caselaw 3794 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%               Judgment Reserved on: August 4, 2011
                Judgment Pronounced on: August 8, 2011

+ CS(OS) 2483/2008


KAMLA RANI AND ANR.                   ..... Plaintiffs
             Through: Mr. Suresh Singh, Adv.

                     versus

JOGINDER SINGH AND ORS.        ...... Defendants
              Through: Mr. Vikas Sharma, proxy
              counsel.

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. The case of the

plaintiffs is that they purchased second floor of property

No.108 comprised in Khasra No.250 of Mehrauli from

defendant No.1 on 21.05.2004 and the sale deed was duly

executed by defendant No.1 in their favour. The sale deed

by defendant No.1 was executed as attorney of the previous

owner Smt. Deep Mala. This is also the case of the plaintiffs

that possession of the aforesaid property had already been

delivered to them on 29.03.2004. It later transpired that in

a sham transaction, defendant No.1 had conveyed title of

the aforesaid property to defendant No.2 in a clandestine

manner. Defendant No.2 then took a loan from defendant

No.3 - Allahabad Bank on the strength of the title deed

executed by defendant No.1 in his favour. The plaintiffs

have accordingly sought a declaration that the right, title

and interest in the second floor of property No.108

comprised in Khasra No.250 of Mehrauli vest with them and

the sale deed executed by defendant No.1 in their favour is

legal and valid in law. They have sought a further

declaration that the sale deed executed by defendant No.1 in

favour of defendant No.2 is void ab initio. They have also

sought a declaration that the mortgage of the suit property

by defendant No.2 in favour of defendant No.3 is vitiated in

law.

2. Defendant No.1 filed written statement contesting

this suit. It is alleged in the written statement that the

dispute is between defendants No.2 & 3 and defendant No.1

has nothing to do with that dispute.

3. The name of defendant No.3 was deleted from the

array of the defendants vide order dated 30.08.2010 since it

had received the amount due to it from defendant No.2.

Defendant No.2 was proceeded ex-parte on 24.08.2009

whereas defendant No.1 was proceeded ex-parte on

24.05.2011.

4. The plaintiffs have filed the affidavit of attorney -

Shri Vinay Kumar Gupta by way of ex-parte evidence. In

his affidavit by way of ex-parte evidence, Mr. Vinay Kumar

Gupta had stated that the plaintiffs had purchased the

second floor of property No. 108 comprised in Khasra

No.250 of Mehrauli from defendant No.1 on 21.05.2004 vide

sale deed executed PW-1/2. He has further stated that the

plaintiffs were put in possession on 29.03.2004 and at that

time the possession letter Ex.PW-1/3 and General Power of

Attorney Ex.PW-1/4 were executed in their favour.

According to him, part sale consideration was paid by the

plaintiffs on 29.03.2004 and documents were handed over

to them on the same date in the presence of defendant No.2.

The possession letter and General Power of Attorney

Ex.PW-1/3 & Ex.PW-1/4 respectively have also been signed

by defendant No.2 as an attesting witness. He has further

stated that on coming to know that some officials from

defendant No.3 Bank had visited the suit property, the

plaintiff made enquiry in the matter and came to know that

defendant No.2 had obtained a loan from defendant No.3

after mortgaging the suit property. On enquiry from the

office of Sub-Registrar, they came to know that a sale deed

had been executed by defendant No.1 in favour of defendant

No.2 on 07.01.2004 and that sale deed is Ex.PW-1/6. He

has further stated that during pendency of this suit,

defendant No.2 has paid the loan amount to defendant No.3

and the documents of title have been returned to him by the

Bank.

5. It is an admitted case that this sale deed by

defendant No. 1 in favour of defendant No. 2 was executed

on 07th January, 2004, more than two months before he

executed documents, such as Power of Attorney and

possession letter in favour of the plaintiff. Thus, this is not a

case where defendant No. 1 first agreed to sell/sold the suit

property to the plaintiffs and later sold it to defendant No. 2.

Since defendant No. 2 had already become owner of the suit

property on execution of the sale deed in his favour on 07 th

January, 2004, defendant No. 1, who, thereafter, was left

with no right, title or interest in the aforesaid property, had

no legal right to enter into an agreement to sell the aforesaid

property, deliver its possession to the plaintiffs and execute

the sale deed in their favour.

6. Though the case of the plaintiffs is that the

transaction between defendants No. 1 and 2 was a sham

transaction, there is absolutely no evidence which would

substantiate the case of the plaintiffs in this regard. A

perusal of the sale deed executed in favour of defendant No.

2 would show that the property was sold by defendant No. 1

to defendant No. 2 for a sale consideration of Rs

10,50,000/- out of which Rs 1,50,000/- was paid in cash on

07th January, 2004 and the balance amount of Rs 9 lac was

paid by banker's cheque No. 626766/3624 dated 07th

January, 2004, drawn on Allahabad Bank, Lajpat Nagar,

New Delhi. There is no evidence to prove that no such

payment was actually made by defendant No. 2 to defendant

No. 1. In fact, the sale deed executed by defendant No. 1 in

favour of the plaintiffs is for a consideration of Rs 5 lac,

which is less than half of the sale consideration, purporting

to have been received by him from defendant No. 2. Thus,

there is no evidence produced by the plaintiffs, which would

persuade the Court to hold that the transaction between

defendants No. 1 and 2 with respect to sale of the suit

property, was not a genuine sale transaction.

7. In any case, the plaintiffs have not sought any

cancellation of the sale deed executed by defendant No. 1 in

favour of defendant No. 2. The declaration sought by the

plaintiffs cannot be granted to them unless they seek relief

of cancellation of the sale deed executed by defendant No. 1

in favour of defendant No. 2. Section 34 of Specific Relief

Act, to the extent it is relevant, provides that a declaration

with respect to any legal character was or to any right as to

any property shall not made by the Court, where the

plaintiff, being able to seek further relief than a mere

declaration of title, omits to do so. The words "further relief"

means a relief flowing directly necessarily from the

declaration sought. This is a relief appropriate to and

necessarily consequent on the right or title asserted by the

plaintiffs, would complete the claim of the plaintiff and avoid

multiplicity of suits. Of course, the relief must be in

relation to the legal character or right to any property,

which the plaintiff is entitled to and which the defendant

denies or is interested to deny.

In the case before this Court, the Sale Deed in

favour of defendant No.2 is prior in point of time. The

plaintiffs do not claim to have purchased this property from

defendant No.2. Hence, they cannot be declared owners of

the suit property on the basis of the subsequent Sale Deed

executed by defendant No.1 in their favour unless and until

the Sale Deed executed by defendant No.1 in favour of

defendant No.2 is cancelled. The plaintiffs cannot be

declared owners of the suit property, when a prior Sale Deed

stands in favour of defendant No.2. The Sale Deed executed

in favour of defendant No.2 is an obstacle in the way of

plaintiffs which they must necessarily remove before they

can be declared owners of the suit property. The suit,

therefore, is clearly hit by the proviso to Section 34 of

Specific Relief Act. Since I am of the view the even on

merits the plaintiffs have failed to prove that the transaction

between defendants No.1 and 2 was a sham or bogus

transaction, I need not give an opportunity to the plaintiffs

to amend the plaint so as to claim the relief of cancellation

of the Sale Deed executed by defendant No.1 in favour of

defendant No.2.

8. The case of the plaintiffs is that the Power of

Attorney and possession letter executed by defendant No. 1

in their favour was witnessed by defendant No. 2. The

documents filed by the plaintiffs do show that defendant No.

2 Sunil was a witness to the General Power of Attorney,

purporting to be executed by defendant No. 1 in favour of

the plaintiffs, but, this only means that both defendants No.

1 and 2 had connived and conspired to cheat the plaintiffs

by misrepresenting to them that the suit property was still

owned by defendant No. 1, whereas, in fact, it had already

been sold by him to defendant No. 2. If this is so, the

appropriate remedy available to the plaintiffs in law is to sue

defendants No. 1 and 2 for damages and also seek return of

the money which they paid to defendant No. 1. They can

also initiate appropriate criminal proceedings against the

defendants for cheating them by misrepresenting that the

suit property was owned by defendant No. 1, whereas he

had, by that time, already sold it to defendant No. 2. But,

defendant No. 2 being a witness to the documents executed

in favour of the plaintiffs on 29th March, 2004, does not, by

itself, show that the sale transaction between defendants

No. 1 and 2 on 07th January, 2004 was a sham and bogus

transaction which was not intended to be acted upon.

9. For the reasons given in the preceding paragraphs,

I am of the considered view that the declarations sought by

the plaintiffs cannot be granted to them.

The suit is hereby dismissed, without any order as

to costs.

(V.K. JAIN) JUDGE AUGUST 08, 2011 'sn'/bg