Madan Lal Aggarwal vs Rakesh Sharma
2012 Latest Caselaw 2593 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 769/2010


MADAN LAL AGGARWAL                         ..... Plaintiff
              Through             Mr. Avinash Lakhanpal, Adv.

                       versus


RAKESH SHARMA                           ..... Defendant
                       Through      Nemo.

       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR

                      ORDER

%                      20.04.2012


1.            The present        suit has been     filed by the plaintiff   to

seek decree of declaration            against the defendants         declaring

cancellation of sale deed dated 9.5.2008                    and for permanent

injunction for restraining the defendants from creating any third

party interest on the basis of the said sale deed qua the suit

property.

2. The facts in brief which necessitated the filing of the

present suit are that the plaintiff has claimed himself to be a

bona fide, lawful and absolute owner of the agricultural land

measuring 4 Bighas 1 Biswas out of Khasra No. 150 situated in

Revenue Estate of Village Bhalswa Jahangirpuri, Delhi vide

registered sale deed dated 2.2.98 registered as Documents No.

57 in Additional Book No.1, Volume No. 518. The plaintiff has

also claimed to be in possession of the said land and also in

possession of the entire chain of documents tracing his title to

the said suit property. The plaintiff has further averred that the

defendant no.1 is alleged to have purchased the said property

from the defendant no.2 who impersonated himself to be the

plaintiff and owner of the said property. The plaintiff has further

averred that in the month of August 2009, when the plaintiff

visited the suit property it came to his knowledge that some

persons are attempting to grab the suit property and

apprehending danger to his suit property, the plaintiff had

approached the revenue authority and on perusal of the record

of the revenue authority the plaintiff was shocked to find that

the revenue records were reflecting the name of the defendant

no.1 as purchaser of the said property. On making further

enquiries the plaintiff found that the defendant no.2 had

impersonated himself as plaintiff to execute the said sale deed

dated 9.5.2008 registered as document no. 7530 in additional

book No. 1 Volume No. 1854 for a total sale consideration amount

of Rs.44,72,000/- in favour of the defendant no.1. The plaintiff

made a written complaint to the police station Swaroop Nagar

and based on that an FIR No. 224 dated 1.10.2009 under Section

419/420, 468, 471,474,34 120(b) was registered against the

defendants and the same is pending investigation.

3. The plaintiff has claimed himself to be the lawful

and absolute owner of the said property and hence the defendant

no.2 was vested with no legal rights to sell or transfer the same

in favour of the defendant no.1 by executing the sale deed dated

9.5.2008. The plaintiff has also claimed that defendant Nos. 1

and 2 are total strangers to the said suit property and no right of

any nature has accrued in their favour in the said property on

the basis of any documents. The plaintiff has also claimed that

the sale deed dated 9.5.2008 executed by the defendant no.2 in

favour of defendant no.1 is null and void and therefore such a

sale deed cannot create any right, title or interest in favour of the

defendant no.1 and the same thus deserves to be cancelled in

accordance with law. Based on these averments, the

plaintiff has claimed decree of declaration to declare the sale

deed dated 9.5.2008 in respect of the agricultural land area

measuring 4 Bighas, 1 Biswas out of Khasra No. 150 situated in

Revenue Estate of Village Bhalswa Jahangirpuri Delhi as illegal

and null and void in the eyes of law. The plaintiff has claimed

decree of permanent injunction to restrain the defendants from

selling, alienating, transferring, assigning or creating any third

party right or interest in the said suit property based on the sale

deed dated 9.5.2008. Along with the present suit, the plaintiff

had also filed an application under Order 39 Rule 1 and 2 of CPC

and vide order dated 30.4.2010, this court had restrained the

defendants from selling, alienating, transferring, assigning or

creating any third party interest with respect to the suit

property and the said interim order continued to remain in force.

After service, the defendant no.1 had appeared in this matter and

the plaintiff and the defendant no.1 had moved an application

bearing IA No. 13648/2011 under Order 23 Rule 3 read with

Section 151 of CPC to bring on record the terms of the

settlement arrived at between them. In the said compromise

application the defendant no.1 unequivocally admitted the

ownership of the plaintiff over the suit land. The defendant no.1

also stated that he will not have any right, title or interest in the

said land in question based on the said sale deed. Based on the

said compromise separate statements of the plaintiff and of the

defendant no.1 were recorded by this court on 26.8.2011 and

based on the said statements, vide order dated 26.8.2011, the

present suit was decreed by this court qua defendant no.1 in

terms of the compromise application. The decree sheet was

accordingly drawn up by this court vide decree dated 26.8.2011

as against the defendant no.1.

4. The defendant no.2 was served through publication

as well as by means of affixation and vide order dated 10.8.2011,

the defendant no.2 was proceeded ex-parte as the defendant no.2

did not come forward to contest the present case. The ex-parte

evidence as against the defendant no.2 was adduced by the

plaintiff Madan Lal Aggarwal as PW-1. In ex-parte evidence the

said witness proved photo copy of the sale deed dated 9.5.2008

as Ex.PW1/2 and photo copy of the FIR No. 224/2009 as

Ex.PW1/3. Besides proving the said documents, the plaintiff also

proved the case set up by him in the plaint. The testimony of the

plaintiff remained unchallenged and unrebutted, there is thus no

reason to disbelieve the testimony of the plaintiff through which

he has successfully proved his case. The ownership of the plaintiff

in respect of the suit property is not in dispute as the defendant

no.1 has also admitted the ownership of the plaintiff. The

defendant no.1 has further admitted the fact that the defendant

no.2 had impersonated himself as plaintiff and then had executed

the sale deed in question dated 9.5.2008 in favour of the

defendant no.1. Once the said property could not be sold by the

defendant No.2 in favour of defendant no.1, therefore, no right or

interest in the said property could be transferred in favour of

the defendant no.1 through the said sale deed dated 9.5.2008.

The defendant no.1 has also taken a stand that the said

property was sold by the defendant no.2 not on his own but by

impersonating the plaintiff with dishonest and oblique motives

to earn illegal money out of such sham sale transaction. Thus

the said sale deed dated 9.5.2008 registered in the office of Sub-

Registrar is a creation of illegal and fraudulent transaction and

therefore the same deserves to be set aside and the same is

accordingly declared as null and void. The decree of cancellation

is also passed in favour of the plaintiff and against the defendant

no.2 thereby cancelling the sale deed dated 9.5.2008. The decree

of permanent injunction is also passed in favour of the plaintiff

and against the defendant no.2. The defendant no.2, his

representatives, assignees, attorneys or any other person acting

on his behalf are restrained from selling, alienating,

transferring, assigning or creating any third party interest in the

said property. The suit filed by the plaintiff is accordingly decreed

with costs qua defendant no.2.

5. Let decree sheet be drawn up accordingly.

                                  KAILASH GAMBHIR, J
APRIL       20, 2012
mg