Smt. Khazano Devi vs Shri Brahm Pal
2012 Latest Caselaw 754 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI
+                           RFA No.276 /1993
%                                                        3rd February, 2012

SMT. KHAZANO DEVI                        ...... Appellant
                            Through:     Mr. N.S. Dalal, Advocate


                            VERSUS

SHRI BRAHM PAL                                    ...... Respondent

                            Through:         Mr. Arun Kumar Srivastava,
                            Advocate

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal filed under Section 96 of Code of Civil

Procedure, 1908 (CPC) impugns the judgment and decree dated 09.02.1993

dismissing the suit of the appellant/plaintiff filed for possession with

respect to the suit property being 500 sq. yds. of land situated in Khasra No.

132 Min., 144, 1109 Min. and 1110 Min. within the Abadi of village

Rithala, Delhi. Besides praying for possession, the appellant/plaintiff had

also prayed for cancellation of the documents dated 12.8.1981 executed by

the appellant/plaintiff in favour of the respondent/defendant with respect to

the suit plot of 500 sq. yds. Injunction and mesne profits were also claimed.

2. The facts of the case are that the appellant/plaintiff filed the subject

suit stating that there was an agreement between the appellant/plaintiff and

the respondent/defendant for exchanging the suit plot of 500 sq. yds. with

the plot of 400 sq. yds. belonging to the father of the respondent/defendant.

It was pleaded that this arrangement of exchange of the plot was made so as

to park a truck of the appellant/plaintiff and for which parking the plot of

the respondent/defendant was more suitable.

3. It was pleaded that the parties went to the office of the Sub-Registrar

on 12.8.1981 when the appellant/plaintiff executed the receipt of a sum of `

40,000/-, and also General Power of Attorney in favour of the

respondent/defendant, however, the father of the respondent/defendant

never reached the office of the Sub-Registrar. It was pleaded that the

respondent/defendant assured that his father will execute the sale deed with

respect to the plot of 400 sq. yds. in favour of the appellant/plaintiff in the

shortest possible time inasmuch as the father could not reach the office of

the Sub-Registrar due to having some work in the district court. It was

pleaded that as there were cordial relations between the parties the

appellant/plaintiff believed the promise that the father of the

respondent/defendant will subsequently execute the documents in favour of

the appellant/plaintiff with respect to the plot of 400 sq.yds. It was further

pleaded that the appellant/plaintiff thereafter gave the possession of the

subject plot to the respondent/defendant and took possession of the plot of

400 sq. yds. from the respondent/defendant. Disputes thereafter arose after

about four years in and around February 1985 when it transpired that the

respondent/defendant was trying to transfer the suit plot resulting in filing

of the suit for permanent injunction against the respondent/defendant by the

husband of the plaintiff. This suit for permanent injunction, filed on

8.3.1985, was rejected by the court of Sh. O.P. Gupta, Sub-Judge, Delhi on

7.12.1987 under Order 7 Rule 11CPC. Thereafter subject suit for

possession and mesne profits including claiming the relief of cancellation of

documents was filed.

4. The respondent/defendant contested the suit and stated that the

appellant/plaintiff has falsely pleaded a case of exchange, and that the

transaction in fact, entered into between the parties, was for a sale of the

plot of 500 sq. yds. by the appellant/plaintiff in favour of the

respondent/defendant, and under which transaction, appellant/plaintiff after

receiving a sum of ` 40,000/-, executed the necessary documents in the

office of the Sub-Registrar, Delhi and one document being the receipt was

registered in the Sub-Registrar's office. It was also pleaded that the fact

that the suit was filed after a period of about four years after the alleged

fraud was said to have been played, shows the lack of substance in the suit.

It was also pleaded that there was no agreement whereby the father of the

respondent/defendant was to transfer the plot of 400 sq. yds. to the

appellant/plaintiff as was alleged.

5. The trial court, after pleadings were completed, framed the following

issues:

"1. Whether the plaintiff has locus standi to file the suit? OPP

2. Whether the suit is maintainable? OPP

3. Whether the suit is within time? OPP

4. Whether the suit has been properly valued for purposes of court fee and jurisdiction and proper court fee has been paid? OPP.

5. Whether the documents were executed by the plaintiff, and her husband dated 12.8.81 are null and void and without consideration? If so, its effect? OPP

6. Whether the plaintiff is entitled to the relief prayed for? OPP

7. Relief."

6. The trial court has dismissed the suit by holding that there was no

agreement for exchange of plots as pleaded by the appellant/plaintiff. The

trial court also held that the appellant/plaintiff received the sum of `

40,000/- under the registered receipt dated 12.8.1981 and had transferred

rights in the suit plot to the respondent/defendant. The trial court held that

it was not believable that if the appellant/plaintiff had been put in

possession of the other plot of 400 sq. yds. on being dispossessed from the

same, no Police complaint has been filed considering that an immovable

property is a very valuable thing. I, at this stage, must note that the son of

the appellant/plaintiff is employed with the Delhi Police as a driver and who

could have easily got a criminal complaint registered. Trial court has also

referred to various inconsistencies in the deposition of the witnesses of the

appellant/plaintiff to hold that the case as put up by the appellant/plaintiff

was not believable. The trial court has also referred to the fact that in the

earlier suit filed by the husband of the appellant/plaintiff for injunction and

which was rejected by Sh. O.P. Gupta, Sub-Judge, Delhi 07.12.1987, there

was no mention of plaintiff/appellant having constructed a boundary wall

with a room on the suit plot, and which facts were however claimed in the

present suit.

7. In addition to the aforesaid, I find that the case as set up by the

appellant/plaintiff, is not believable because of the following

inconsistencies:

(i) In para 10 of the plaint it was pleaded that when the parties went for

registering the documents on 12.8.1981 with respect to the suit plot, the

respondent/defendant replied that his father is likely to come in a short-

while as he is busy in some court case in Tis Hazari Court whereas in the

evidence which was led by the husband of the appellant/plaintiff-Sh. Ram

Pat as PW-1, he stated that the father of the respondent/defendant

"disappeared under some pretext" , and so the document in favour of the

appellant/plaintiff for 400 sq. yds. plot could not be executed.

(ii) As per the deposition made by the said Sh. Ram Pat as PW-1

possession of the suit plot was given to the respondent/defendant in the year

1982 i.e. about one and a half year from 12.8.1981 when the documents

were executed.

In my opinion, if the appellant/plaintiff was cheated/defrauded as

alleged on 12.8.1981 there was no question of the appellant/plaintiff

handing over the possession of the suit plot to the respondent/defendant in

1982 after about a year and a half without getting documents executed in

favour of the appellant/plaintiff with respect to the plot of 400 sq. yds.

which was alleged that the same was to be exchanged for the suit plot.

(iii) Sh. Siri Kishan-son of the appellant/plaintiff and Sh. Ram Pat-PW1,

who deposed as PW-4, stated in his examination-in-chief that the original

documents with respect to the suit property were handed over in the year

1984-1985 to the respondent/defendant as the respondent/defendant

requested that he be given the original papers so that after showing the same

to his father, he can pursuade him for execution of the similar documents in

favour of the appellant/plaintiff.

In my opinion, it is inconceivable that although the appellant/plaintiff

claims to have been defrauded and which defrauding continued from

August 1981 till 1984-1985, then, yet in such circumstances still the entire

original documents of the suit property executed on 12.8.1981 would have

been handed over to the respondent/defendant in 1984-85.

(iv) There was no notice issued from August 1981 till the year 1985 to

the respondent/defendant of the alleged fraud and of the appellant/plaintiff

not having received ` 40,000/- and of the fact that the

respondent's/defendant's father ought to have executed the sale deed with

respect to the other plot of 400 sq. yds.

8. Therefore, in my opinion, the trial court has rightly come to a finding

that the appellant/plaintiff has transferred rights in the suit plot to the

respondent/defendant after receiving ` 40,000/- as consideration and has

executed the necessary documents including the receipt of ` 40,000/- which

was registered before the Sub-Registrar.

9. Learned counsel for the appellant/plaintiff argued before this Court

that the transaction dated 12.8.1981 was bound to fail inasmuch as the

appellant/plaintiff has not received ` 40,000/-. Firstly, this stand is not

believable inasmuch as under normal course of human conduct, no one will

execute a receipt, much less register it, although, no amount was paid under

the said document. Further, if this consideration was not paid, the

appellant/plaintiff had no reason to remain silent from 1981 to 1985 and not

send at least a letter, if not a legal notice, that the amount of ` 40,000/- has

not been received or that the other plot of 400 sq. yds. has not been

transferred to the appellant/plaintiff. I have already reproduced four major

inconsistencies and circumstances above as to why the stand of the

appellant/plaintiff is not believable, in addition to the reasoning given by

the trial court.

10. Another argument of the learned counsel for the appellant/plaintiff

was that it was admitted by the respondent/defendant that he did not have

even an inch of land in village Rithala and thus the same showed that a

fraud was played, because the suit land could never have been exchanged, is

an argument without any substance inasmuch as it is not the case in the

plaint that it was the respondent/defendant who was to execute any transfer

documents with respect to a plot owned by him and even as per the plaint,

the stand which was taken up by the appellant/plaintiff that it was the father

of the respondent/defendant who was the owner of the plot of 400 sq. yds.

and whose plot was to be transferred in favour of the appellant/plaintiff.

11. The learned counsel for the appellant/plaintiff has finally argued that

since the original title deeds of the suit plot by which the suit plot was

purchased by the appellant/plaintiff continued to be with the

appellant/plaintiff, and therefore, it should be held that the suit plot was

never transferred to the respondent/defendant. Of course, normally original

title deeds were given to the buyer of the property on the transfer of the

property, and the fact that the original documents of the suit property are

with the appellant/plaintiff is indeed a salient aspect in favour of the

appellant/plaintiff, however, after giving considerable thought, and

considering the totality of the facts and circumstances of the present case

including of the lack of the credibility in the stand of the appellant/plaintiff

and which has already been detailed by me above, on the preponderance of

the probabilities, I would hold that merely because the original documents

are with the appellant/plaintiff cannot mean that the appellant/plaintiff was

defrauded in entering into the documents of the transfer of property dated

12.8.1981. The various reasons, and which I have already reproduced

above, and which I am reiterating herein at the risk of the repetition are:-

Firstly, the case set up in the plaint was that the father of the

respondent/defendant did not come because he was said to be in Tis Hazari

Court whereas Sh. Ram Pat, PW-1, husband of the appellant/plaintiff, made

a statement that the father of the respondent/defendant suddenly

disappeared. Secondly, it is inconceivable that if the appellant/plaintiff was

defrauded, yet physical possession of the suit plot would have been handed

over after one and a half year of 12.8.1981 (in the year 1982) to the

respondent/defendant and even the original documents executed on

12.8.1981 would have been handed over to the respondent/defendant much

later in the year 1985 allegedly for being shown to the father of the

respondent/defendant. The third important aspect is that if the

appellant/plaintiff was put in possession of the plot of 400 sq. yds. and was

dispossessed then surely a hue and cry would have been raised by filing of a

criminal complaint inasmuch as dispossession of the immovable property is

a very serious matter, however, admittedly no criminal complaint was filed.

The filing of a criminal complaint by the appellant/plaintiff was very easy

because the son of the appellant/plaintiff was an employee of the Delhi

Police. Finally, there is also the aspect that the earlier suit which was filed,

was filed not on behalf of the appellant/plaintiff but for some strange reason

by her husband and in which suit there was no averment of

appellant/plaintiff having constructed a boundary wall with a room, a stand

which has been taken up thereafter in the present suit. Accordingly, I hold

that possibly the respondent/defendant may not have realized the

importance of original title documents of the suit property to be with him

and when the disputes arose in the year 1985 it would have been too late to

ask the appellant/plaintiff for the original title documents of the suit

property. I must in the end note that it is not the case of the

appellant/plaintiff either in her pleadings or in the evidence of her witnesses

that the original title deeds of the suit property in her possession were

retained by her because defendant's father was not executing the necessary

transfer documents in her favour of the plot of 400 sq. yds.

12. A civil case is decided on balance of probabilities. The

preponderance of probabilities in the present case leads to the conclusion

that the trial court was justified in dismissing the subject suit. A civil court

after complete evidence is led, puts the same in a melting pot so as to decide

a picture which will finally emerge. The final picture which has emerged in

this case was that it cannot be said that the appellant/plaintiff was defrauded

as is being claimed and, the appellant/plaintiff had transferred rights in the

suit plot to the defendant/respondent under the documents dated 12.8.1981.

13. In view of the above, the appeal is therefore dismissed with costs of

` 10,000/-. Trial court record be sent back.

VALMIKI J. MEHTA, J FEBRUARY 03, 2012 godara