Shashi vs Sudershan Sharma & Anr
2013 Latest Caselaw 5906 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 20th December, 2013

+                                  RFA 596/2004
       SHASHI                                                 ..... Appellant
                            Through:      Mr. Shailendra Bhardwaj and Ms.
                                          Aroma S. Bhardwaj, Advocates.
                                       Versus

       SUDERSHAN SHARMA                                    ..... Respondent
                   Through:               Mr. O.P. Wadhwa, Mr. Ranjeet
                                          Pandey and Mr. Saurabh Kaushik,
                                          Advocates.

                                       AND
+                                  RSA 232/2004
       SHASHI                                                  ..... Appellant
                            Through:      Mr. Shailendra Bhardwaj and Ms.
                                          Aroma S. Bhardwaj, Advocates.
                                       Versus

    SUDERSHAN SHARMA & ANR                 ..... Respondents
                  Through: Mr. O.P. Wadhwa, Mr. Ranjeet
                           Pandey and Mr. Saurabh Kaushik,
                           Advocates.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.

1. The RFA impugns the judgment and decree dated 30th September,

2004 of the Court of the learned Addl. District Judge, Delhi in Suit

No.278/02/95 filed by the appellant. The RSA impugns the judgment and

decree also dated 30th September, 2004 in RCA No.432/2000 filed by the

respondent no.1 in RSA against the order dated 16th May, 1996 of the Court

of the Civil Judge, Delhi of dismissal as not maintainable of Suit

No.138/1996 filed by the respondent no.1 in the RSA.

2. The suit, from which RFA No.596/2004 is preferred, was instituted by

the appellant on 28th November, 1995, for permanent injunction restraining

the respondent in the RFA Smt. Sudershan Sharma from dispossessing the

appellant from premises No.C-123, Karampura, New Delhi and from in any

way creating any encumbrances, agreement, transfers, conveyance/sale of

the said premises in favour of any third party, pleading:-

(a) that the appellant was the owner of the said property having

purchased the same along with leasehold rights of the land

underneath granted by the DDA, from the respondent for a total

sale consideration of Rs.2,40,000/- paid to the respondent on

26th October, 1995;

(b) that the respondent after receiving the sale consideration from

the appellant, on 26th October, 1995 itself handed over vacant

peaceful possession of the property to the appellant in part

performance of the Agreement to Sell and also executed other

documents i.e. General Power of Attorney, Special Power of

Attorney, Will, Rent Agreement, Agreement to appoint

Arbitrator, Indemnity Bond and a receipt, all dated 26th

October, 1995 in favour of the appellant;

(c) that the respondent turned dishonest and filed false complaint

on 9th November, 1995 with PS Moti Nagar against the

appellant;

(d) that the respondent thus intended to fraudulently dispossess the

appellant from the suit property in collusion with the Police

who had sealed the said house depriving the appellant

therefrom;

(e) that all personal belongings of the appellant were still lying in

the said house and the appellant thus continued to be in lawful

possession of the same, notwithstanding the fact that the same

had been sealed by Police;

(f) that vide legal Notice dated 9th November, 1995 the respondent

had called upon the appellant not to interfere in her peaceful

occupation of the premises and cancelling all the documents

coercively got executed by the appellant from the respondent on

26th October 1995 and calling upon the appellant to return all

papers relating to the aforesaid property;

(g) that the appellant vide reply dated 25th November, 1995 had

claimed to be in lawful possession of the property and denied

that the respondent had any right or interest therein; and,

(h) that the appellant had performed her entire obligations under

the Agreement to Sell of the said property by the respondent

and consequently the sale of the property stood concluded and

the respondent was not entitled to deal with the property.

3. The respondent contested the suit by filing a written statement on the

grounds:-

(i) that the suit as filed for permanent injunction was not

maintainable as the appellant, on the date of institution thereof,

was not in possession thereof, the same having been sealed by

the Police on 9th November, 1995 in pursuance to FIR

No.586/1995 of PS Moti Nagar;

(ii) that the appellant had on 20th November, 1995 requested for de-

sealing of the property and restoration of possession before the

Metropolitan Magistrate but the said application was dismissed

vide order dated 31st January, 1996 holding that the appellant

had no right to the property;

(iii) that the respondent was the lawful owner of the property and

the appellant was attempting to grab the same;

(iv) that the respondent along with her family members had been

residing in the said property since acquiring the same on 14th

April, 1986 and was also running the business of cloth shop and

beauty parlour therein;

(v) that the property comprises of two shops, two rooms, two

latrines, kitchen and bathroom;

(vi) that the appellant was residing in neighbourhood, in property

no.C-110, Karampura, New Delhi;

(vii) that the respondent in the month of December, 1994 had

borrowed Rs.50,000/- from the appellant and on which the

appellant was charging exorbitant rate of interest;

(viii) that the appellant had also arranged some committees (chits) for

the respondent but the respondent could not continue the

payment of monthly chit money;

(ix) that the appellant claimed a sum of Rs.1,23,000/- to be due

from the respondent to the appellant;

(x) that the appellant asked the respondent to accompany her to the

Court to enter into an agreement recording that the respondent

will pay Rs.1,50,000/- to the appellant within three months and

if the respondent did not pay the said money then the

respondent's house would become that of the appellant;

(xi) that the respondent under coercion entered into the said

agreement with the appellant;

(xii) however on the night on 25th October, 1995 the appellant along

with other persons came to the house of the respondent and

demanded that the respondent transfer the said property in

favour of the appellant;

(xiii) that the appellant on 26th October , 1995 forced the respondent

to accompany her and the respondent under pressure and threat

executed Power of Attorney of her property and other

documents in the name of the appellant;

(xiv) that though the appellant promised that she would pay Rs.3 lacs

to the respondent but did not give even a single penny;

(xv) that the appellant also forcefully took the keys of the property

of the respondent on 26th October, 1995;

(xvi) that the respondent on 9th November, 1995 lodged the FIR

No.586/1995 supra but the Police officials instead of handing

over the possession of the house of the respondent to the

respondent, sealed the property;

(xvii) that the respondent on 20th November, 1995 got cancelled

documents got executed by the appellant under coercion and

got sent the notice dated 9th November, 1995 to the appellant in

that regard;

(xviii) denying that any amount of Rs.2,40,000/- by way of sale

consideration had been paid by the appellant to the respondent;

and,

(xix) denying that the respondent had in part performance of the

Agreement to Sell dated 26th October, 1995 put the appellant

into possession of the property.

4. Needless to state that the appellant filed a replication reiterating the

contents of the plaint and denying the contents of the written statement.

5. On the pleading aforesaid in the suit, the following issues were framed

on 11th August, 1998:-

"1. Whether the plaintiff is entitled for an injunction against the defendants restraining her from dispossessing the plaintiff from the premises in question or creating any third party interest in the property? OPP

2. Whether the defendant is lawful owner and in possession of the suit property, if so its effect? OPD

3. Whether the plaintiff has no locus standi to file the present suit? OPD

4. Whether the suit is not properly valued for the purpose of jurisdiction and costs? OPD

5. Whether there is any cause of action in the suit? OPD

6. Relief, if any."

6. The suit from which RSA No.232/2004 arises was filed on or about

16th May, 1996 by the respondent impleading only the SHO Police Station

Moti Nagar as defendant thereto and who is respondent no.2 in the RSA, for

mandatory injunction directing the SHO to handover the property to the

respondent.

7. The said suit was on 16th May, 1996 itself dismissed in limine by the

learned Civil Judge before whom it was filed, observing that since the

property was under the seal of the SHO, the only recourse available was to

file appropriate petition for de-sealing of the property before the superior to

the SHO or by filing a suit in Civil Court for declaration to the effect that the

action was null and void and the suit as filed was not maintainable.

8. The respondent filed RCA No.432/2000 supra against the said

dismissal in limine of her suit.

9. It is informed that the appellant filed Revision Petition against the

order dated 20th November, 1995 supra of the Metropolitan Magistrate

refusing to restore possession of the property to the appellant. The said

revision is informed to have been dismissed as not maintainable vide order

dated 13th May, 1996.

10. The appellant thereafter filed Writ Petition (Criminal) No.396/1996

for quashing of the sealing memo dated 9th November, 1995 with respect to

the property. The said writ petition was disposed of vide order dated 4th July,

2000 of the Division Bench of this Court, observing/holding (i) that

the Police did not have any right to seal the property and if there was any

breach of peace in relation to the possession of the suit property , the remedy

open to the Police was to file a Kalandara which had not been done; (ii)

recording the consent of the parties, to the premises being de-sealed (by the

SHO) and the keys thereof being handed over to the Civil Judge dealing with

the suit for mandatory injunction filed by the respondent (supposedly

incorrect as the suit had been dismissed in limine on 16th May, 1996 and

only the RCA preferred against the dismissal of the suit was then pending);

and, (iii) recording that the appellant had also moved an application for

impleadment in the said suit and to which the respondent had no objection

and directing the suit filed by the appellant and the RCA to be decided by

the same Court and further directing that the said Court will pass appropriate

orders for handing over the keys to the rightful person.

11. The parties went to trial on the basis of the aforesaid issues in the suit

filed by the appellant only and no separate issues were framed in the suit

filed by the respondent which was dismissed in limine and against which

RCA was filed.

12. The learned Addl. District Judge has vide the impugned judgment

dated 30th September, 2004, dismissed the suit filed by the appellant and

axiomatically directed handing over of the keys deposited in the Court to the

respondent, finding/observing/holding:-

(a) that the case of the appellant was that she had purchased the

property from the respondent;

(b) on the other hand the case of the respondent was that she never

sold the property and the documents were prepared, got signed

and registered by the appellant from the respondent under threat

and coercion;

(c) that the appellant appearing as PW1 had admitted giving three

months time to the respondent on 12th October, 1995 either to

repay the loan amount or to execute relevant documents of the

property in favour of the appellant - if that was so, there was no

occasion for the respondent to approach the appellant on 25th

October, 1995 and to say that the respondent wanted to dispose

of the house in order to discharge her liability qua the appellant;

(d) that the appellant had been unable to prove the source from

which she claimed to have paid the sale consideration of

Rs.2,40,000/- to the respondent;

(e) that there were inconsistencies between the deposition of the

appellant as PW1 and the deposition of her husband Shri Harish

Chand examined as PW2;

(f) that though the case of the appellant in the plaint in the suit

filed by her was of having paid the sale consideration of

Rs.2,40,000/- but the appellant in her cross examination

claimed to have purchased the house for Rs.3,90,000/-;

(g) that the appellant at one stage in her cross examination had

admitted that she was doing the business of committees/chits

earlier but at another place had denied the same - thus evidence

of the appellant was self-contradictory;

(h) that thus the case of the appellant about the transaction with the

respondent was not true and the case of the respondent of

having taken loan of Rs.50,000/- from the appellant and the

appellant subsequently getting the documents of property

executed under threat and coercion was true;

(i) that the appellant was thus not entitled to any injunction

restraining the respondent from dispossessing the appellant

from the property or creating any third party interest therein;

(j) that the respondent had proved registered deeds of cancellation

of the documents got executed by the appellant from the

respondent forcibly;

(k) that the respondent was thus the lawful owner of the property

though not in possession thereof, the same having been sealed;

(l) that though the case of the appellant had been found to be false

but the appellant could not be said to be having no locus to

institute the suit;

(m) issue no.4 qua valuation of the suit for the purpose of Court

Fees and jurisdiction was not pressed by the respondent; and,

(n) that since it had been found that the documents regarding

purchase of the property were got executed by the appellant

from the respondent under threat and coercion and had been

cancelled, it was also held that the appellant had no cause of

action for the suit.

13. The learned Addl. District Judge, vide the same judgment dated 30th

September, 2004 in the RCA No.432/2000 has held that since this Court

vide order dated 4th July, 2000 in W.P.(Criminal) No.396/1996 had directed

the keys deposited in the Court to be delivered to rightful claimant and since

the respondent had been held to be the owner, disposed of the RCA

No.432/2000 by directing delivery of keys of the property to the respondent.

14. Notice of the RFA and of the application for stay accompanying the

RFA was issued and vide interim order dated 16th March, 2005 in the appeal,

the possession of the property was permitted to be handed over to the

respondent after preparation of an inventory of articles lying therein and for

which purpose a Court Commissioner was appointed; the respondent was

however restrained from in any manner selling, encumbering or creating any

third party interest in respect of the property and also restrained from

carrying out any construction therein. Similarly, notice of the RSA also was

issued. Though initially, the direction of the Additional District Judge

directing delivery of keys of the premises to the respondent was stayed but

subsequently as aforesaid, on 16th March, 2005 when the RFA as well as the

RSA were listed together, order of delivery of possession of property to the

respondent was made.

15. The counsels have been heard.

16. It is informed that the trial in pursuance to FIR No.586/1995 is still

going on.

17. The Court Commissioner appointed by this Court to prepare the

inventory of articles lying in the property has reported that apart from

household goods, there were cosmetic items and textile materials and

furnishings, though dilapidated, lying in the premises. The counsel for the

respondent has argued that the same belong to the respondent.

18. Though the counsels have argued with respect to the evidence

recorded but what intrigues me is that the suit in which the findings of title

have been given, was merely a suit for permanent injunction restraining

dispossession of the appellant. The Supreme Court in Anathulla Sudhakar

Vs. P. Buchi Reddy (2008) 4 SCC 594 has held:-

(i) where a cloud is raised over the plaintiff's title and he does not

have possession, a suit for declaration and possession, with or

without consequential injunction is the remedy;

(ii) where the plaintiff's title is not in dispute or under a cloud, but

he is out of possession, he is to sue for possession with

consequential injunction;

(iii) where there is merely an interference with plaintiff's lawful

possession or threat of dispossession, it is sufficient to sue for

injunction simpliciter;

(iv) a cloud is said to rise over a person's title when there is some

apparent defect in his title to a property or when some prima

facie right of a third party over it, is made out or shown;

(v) as a suit for injunction simpliciter is concerned only with

possession, normally the issue of title will not be directly and

substantially in issue and the prayer for injunction will be

decided with reference to finding of possession;

(vi) but where de jure possession has to be established on the basis

of title to the property, as in case of vacant sites, the issue of

title may directly and substantially arise for consideration as

without finding thereon, it will not be possible to decide the

issue of possession;

(vii) but a finding on title cannot be recorded in a suit for injunction,

unless there are necessary pleadings and appropriate issue

regarding title; where the averments regarding title are absent

and where there is no issue relating to title, the court will not

investigate or examine or render a finding on a question of title,

in a suit for injunction;

(viii) even where there are necessary pleadings and issue, if the

matter involves complicated questions of fact and law relating

to title, the court will relegate the parties to the remedy by way

of comprehensive suit for declaration of title, instead of

deciding the issue in a suit for mere injunction; and,

(ix) where there are necessary pleadings regarding title, and

appropriate issue relating to title, on which parties lead

evidence, if the matter involved is simple and straight-forward,

the court may decide upon the issue regarding title, even in a

suit for injunction; but such cases, are the exception to the

normal rule that question of title will not be decided in suits for

injunction; it is only where the plaintiff suing for injunction has

a clear title and possession that he should not be driven to the

costlier and more cumbersome remedy of a suit for declaration,

merely because some meddler vexatiously or wrongfully makes

a claim or tries to encroach upon his property.

19. The Supreme Court in Anathulla Sudhakar supra was concerned with

a suit for injunction simpliciter to restrain the defendant from interfering

with the plaintiff's possession of the open plot of land. The defendant not

only claimed title to the said land but also claimed to be in possession

thereof. The Trial Court decreed the suit. The defendant filed an appeal in

which the First Appellate Court held that the plaintiff had not prima facie

made out a case of title or possession and in the circumstances a mere suit

for injunction was not maintainable at least when the defendant filed the

written statement denying title and setting up a clear and specific case of title

in himself. It was further held that the plaintiff at that stage ought to have

converted the suit from one for mere injunction to one for declaration and

injunction. The first appeal was accordingly allowed and the suit dismissed.

The High Court in second appeal held that the plaintiff had established title

to the land and from which title an inference of possession could be

presumed. It was further held that it was not necessary for the plaintiff to sue

for declaration of title as the question of title was incidental to the question

of possession. The Supreme Court set aside the judgment of the High Court

and restored the judgment of the First Appellate Court, holding as aforesaid.

20. Not only so, another interesting aspect of the matter is that admittedly

on the date of institution of the suit, the appellant was not in possession of

the property and the property had been sealed by the Police a few days prior

to the institution of the suit. The question arises whether in this

circumstance, the appellant could be said to be in possession of the property

so as to maintain a suit for injunction against his dispossession.

21. In my view no. Though ultimately in the criminal writ petition supra it

was held that the Police was not entitled to seal the property but the fact

remains that on the date of institution of the suit the appellant was not in

possession thereof; without the appellant being in possession, he could not

have maintained a suit for injunction restraining his dispossession.

22. The Supreme Court in Baleshwar Tewari Vs. Sheo Jatan Tewari

(1997) 5 SCC 112 reiterated that the word "possession" is sometimes used

inaccurately as synonymous with the right to possess. It was yet further held

that there are three requisites of possession; firstly there must be actual or

potential physical control; secondly physical control is not possession,

unless accompanied by intention and lastly, the possibility and intention

must be visible or evidenced by external signs, for if the thing shows no sign

of being under the control of anyone, it is not possessed. It was yet further

held that when there is a bare right to possess bereft of any dominion or

factum of control, it will be a strange legal travesty to assert that an owner is

in possession merely because he has a right to possess.

23. Reference with benefit may also be made to the dicta of the Division

Bench of the Bombay High Court in State of Maharashtra Vs. Punja

Trambak Lahamage MANU/MH/0293/2008 where in the context of land

acquisition law it was held that possession being a legal right must arise

legally and for possession to be accepted in law, the Court should be

satisfied that possession has been acquired by the concerned party by due

process of law and is not result of an unlawful act.

24. When we examine the facts of the present case in the aforesaid light,

though the appellant, in the plaint had made the requisite plea of his title to

the property by way of an Agreement of Purchase dated 26th October, 1995

thereof from the respondent and of being put into possession of the property

by the respondent in part performance of the Agreement to Sell but it was

the admitted position that the appellant on 9th November, 1995 i.e. in less

than a fortnight of the date when he claimed to have been so put in

possession, had been divested of such possession by the Police. The

appellant on the date of institution of the suit was also aware from the legal

notice dated 9th November, 1995 got served by the respondent on the

appellant that the respondent was denying/controverting the Agreement to

Sell with the appellant and/or denying having put the appellant into

possession of the property and had also cancelled the documents under

which the appellant was claiming to be in possession of the property. If not

then, the appellant at least on the filing of the written statement by the

respondent had become aware of the stand of the respondent of denying any

Agreement to Sell in favour of the appellant or having put the appellant into

possession and of the appellant having forcibly taken possession of the

property. The appellant still did not convert the suit from that merely of

permanent injunction restraining the respondent from dispossessing the

appellant from the property or from creating third party rights in the property

to a suit for declaration of rights claimed by him in the property but chose to

proceed with the suit for mere injunction.

25. I am of the view, that in the aforesaid circumstances, even though the

respondent also admits appellant to be in possession of the property from

26th October, 1995, albeit forcible, the appellant, once divested of possession

by the police on 9th November, 1995, could not at the time of filing of the

suit on 28th November, 1995 claim to be in possession of the property so as

to maintain a suit for mere injunction against dispossession. The possession

of the appellant in the face of stand aforesaid of the respondent, known to

the appellant before the institution of the suit, cannot be said to be visible

and evidenced by external signs or settled or undisputed or lawful or without

any cloud. The possession claimed by the appellant inspite of admission of

police having sealed the property, was de jure possession, akin to that of

vacant land and to establish which the appellant was required to establish his

title to the property and without a finding thereon, the issue of possession

could not be decided. The appellant thus, cannot be said to be in possession

of the property on the date of institution of the suit and the suit for injunction

was thus not maintainable. The appellant cannot be said to be a meddler,

vexatiously or wrongfully making a claim to the property.

26. The Trial Court of course on the pleadings of the parties did frame

issue No.2 supra of the title claimed by the appellant and on which issue the

parties led evidence and the Trial Court has returned a finding of the

appellant having failed to prove his title as well, lest possession of the

property.

27. Before I proceed to deal with the evidence to gauge whether the

findings returned by the learned Addl. District Judge are on a proper

appreciation of the evidence recorded, it is deemed necessary to highlight

one other aspect. The title/right in immovable property claimed by the

appellant in the present case is not under a document of transfer by sale, gift

etc. of the property to him but on the basis of an Agreement to Sell coupled

with delivery of possession. I have wondered as to what is to be the remedy

of a agreement purchaser in possession of immovable property who, rightly

or wrongly, has not only been divested of possession albeit with the

assistance of the Police but the agreement in whose favour is also denied by

the seller. A mere agreement to sell does not create any rights in the

property. It only gives a right to enforce the same to acquire rights in the

property. Reference if any required, can be made to Suraj Lamp &

Industries Pvt. Ltd. Vs State of Haryana (2012) 1 SCC 656. When such

agreement to sell is accompanied with delivery of possession of the property

agreed to be sold, Section 53A of the Transfer of Property Act, 1882 debars

the seller from enforcing against the purchaser any right other than as

provided in the agreement to sell. However Section 53A has in Mohan Lal

Vs. Mirza Abdul Gaffar (1996) 1 SCC 639 been held to be only a shield and

not a sword. It is a right in favour of purchaser to defend his possession. It

was held in Bhulkoo Ghasalya Vs. Hiriyabai AIR 1949 Nagpur 410 that if a

purchaser is forcibly ejected by the seller, he can file a suit for recovery of

possession not pursuant to Section 53A but under Section 6 of the Specific

Relief Act. In my view the appropriate remedy of such an agreement

purchaser of immovable property is only to sue for specific performance of

the Agreement of Sale in his favour and for recovery of possession. The

remedy of such an agreement purchaser divested of possession can by no

stretch of imagination be of permanent injunction only.

28. Once that is found to be the position, the relief of permanent

injunction claimed would also be barred by Section 41(h) of the Specific

Relief Act, 1963 which provides that when equally efficacious relief can be

obtained by any other usual mode of proceeding, an injunction cannot be

granted.

29. Not only did the respondent in the present case controvert the

Agreement of Sale in favour of the appellant and delivery of possession in

pursuance thereto but the respondent vide notice dated 9th November, 1995

and subsequently on 20th November, 1995, i.e. prior to the institution of the

suit also cancelled the Agreement to Sell, Power of Attorney, Will etc. by

registering cancellation deeds thereof. Thus, as on the date of institution of

the suit, the documents on the basis whereof the appellant claimed title as

agreement purchaser in possession of the property also did not exist and

stood cancelled. The appellant, without seeking cancellation of the

documents by which the Agreement to Sell Power of Attorney, Well etc. in

his favour had been revoked, could not on the basis of cancelled documents

claim title.

30. Though in view of my said findings above, of the suit for injunction

being not maintainable, there is no need to scan through the evidence led but

for the sake of completeness, I proceed to do so.

31. The following position emerges:-

A. The transaction, of the appellant having loaned money to the

respondent is admitted by both the parties. While according to

the appellant she had loaned a sum of Rs.1,50,000/- to the

respondent, accordingly to the respondent the loan was of

Rs.50,000/- only.

B. The respondent admits that to secure the said loan the

respondent on 12th October, 1995 had executed and got

registered a General Power of Attorney and a Will with respect

to the said property in favour of the appellant. It is not the plea

of the respondent also that the appellant had got the said

documents executed forcibly or fraudulently. A perusal of the

said documents shows the respondent to have vide the

registered General Power of Attorney authorized appellant to

sell the property, execute and register Sale Deed and receive the

sale consideration. The Power of Attorney as well as Will are

without any limitation at all.

C. The execution and registration by the respondent of the General

Power of Attorney, Special Power of Attorney, Will,

Agreement to Sell, Receipt for Rs.2,40,000/-, Affidavit,

Indemnity Bond with respect to the property in favour of the

appellant on 26th October, 1995 is also not in dispute. While it

is the case of the appellant that the respondent being unable to

re-pay the loan had decided to sell the property and which the

appellant had agreed to buy for Rs.2,40,000/-, it is the case of

the respondent that though she had three months' time from 12th

October, 1995 to re-pay the loan but the appellant and her

husband forced and coerced the respondent to execute the said

documents at knife point and by posing a threat to the life of the

children of the respondent.

D. It is not in dispute that the respondent went out of the

possession of the property on 26th October, 1995. While

according to the appellant the respondent in pursuance to the

Agreement to Sell removed her belongings from the property

and delivered possession thereof to the appellant, it is the case

of the respondent that the appellant exercising coercion, under

which documents were got executed from the respondent, also

took the keys of the property from the respondent. Admittedly

the respondent was not residing/occupying the property from

26th October, 1995.

E. The respondent lodged the FIR only on 9th November, 1995 and

in pursuance to which the property was sealed on the same day.

32. The question for adjudication thus was, whether the execution of the

documents dated 26th October, 1995 by the respondent and handing over of

the keys of the property by the respondent to the appellant on 26th October,

1995 was under coercion from the appellant. Unfortunately no specific issue

on the said aspect was framed.

33. The learned Addl. District Judge has believed the version of the

respondent for the reason:

I. Since according to both the parties, a period of three months

from 12th October, 1995 had been fixed for re-payment of the

loan by the appellant to the respondent, there was no occasion

for the respondent to within 13 days of 12th October, 1995

approach the appellant to sell the property;

II. the appellant had failed to prove/establish being possessed of

the sale consideration of Rs.2,40,000/- paid to the respondent;

and,

III. though the document of sale showed the consideration as

Rs.2,40,000/-, the appellant in her deposition having deposed

the same to be Rs.3,90,000/- i.e. Rs.2,40,000/- paid at the time

of Agreement to Sell and Rs.1,50,000/- which was earlier given

as loan.

34. I am unable to agree with the first of the reason aforesaid. Mere fact

that on 12th October, 1995 the time of three months had been agreed for re-

payment of the loan does not give rise to any presumption that the

respondent could not have on 25th October, 1995 agreed to sell the property.

35. The second and the third reason aforesaid given by the learned Addl.

District Judge also, though on correct appreciation of evidence, have to be

seen in the Indian context where payments in cash, especially for immovable

property and the documents of transfer of immovable property not reflecting

the entire purchase consideration are a norm rather than an exception. It is

also not in dispute that a sum of Rs. 1, 23,000/- according to the respondent

and Rs. 1, 50,000/- according to the appellant were due on loan account.

The deposition of the appellant of such of such sale consideration being Rs.

3, 90,000/- is in this context as it is not the case of the appellant that the loan

amount is still due.

36. Though the learned Addl. District Judge has referred to certain other

inconsistencies in the statement of the appellant and her husband but in my

view the same are not material.

37. I am of the view that the case of the respondent, of the appellant

having coerced and compelled the respondent to on 26th October, 1995 sign

the documents and deliver keys of the property, on knife point and by

meeting out threats to the life of the children of the respondent cannot be

believed for the following reasons:-

(i) The respondent also as aforesaid admits a loan transaction and

though claims the loan to be of Rs.50,000/- only but admits that

at the time of registration of the Power of Attorney and the Will

on 12th October, 1995 a sum of Rs.1,23,000/- was due to the

appellant and further admits that it was agreed on 12th October,

1995 that if the respondent was unable to re-pay the loan within

the said three months, she would convey her said property to

the appellant.

(ii) As aforesaid the documents voluntarily executed on 12th

October, 1995 empowered the appellant to sell the property and

there was really no need for the appellant to, if had acted with

dishonest intention, compel and coerce the respondent in

signing other documents, as the General Power of Attorney and

Will voluntarily executed by the respondent on 12th October,

1995 were enough for the appellant to sell the property.

(iii) The respondent lodged the FIR of the alleged incident of 26th

October, 1995 after nearly 14 days on 9th November, 1995. It is

not the case of the respondent that the respondent and her

family between 26th October, 1995 and 9th November, 1995

were under any threat. Rather it is the case of the respondent

that during the said time she was residing faraway in Gandhi

Nagar at the house of her brother-in-law Shri Balkishan. Had

the appellant indulged in any such coercive actions as are

alleged, the respondent would have immediately lodged the

FIR.

(iv) The evidence of coercion is also not very clear. It is not as if the

property is situated in a forlorn area. The respondent in her

cross examination admitted that the property is surrounded by

other houses and was provided with a telephone connection. In

a crowded city like Delhi, it is not easy for anyone to so coerce

another to sign documents, especially when the coercion is

stated to have begun in the night and continued till the next day

culminating in the office of Sub Registrar. The respondent

admitted that about three and a half hours were spent at the

office of the Sub Registrar in getting the documents prepared.

(v) The possibility thus of the respondent, after executing the

documents of transfer of her property in favour of the appellant

on 26th October, 1995, having changed her mind and having

lodged the FIR with the intent to get back the property, cannot

be ruled out.

38. At the same time, the appellant has failed to lead cogent evidence of

the respondent having vacated the property on 26th October, 1995 and having

taken out her goods. The respondent was admittedly not only staying in the

property but also carrying on the business of beauty parlour therein. Had the

respondent so removed her goods from the house, all the persons residing in

the neighbourhood would have been aware of it and the appellant has chosen

not to lead the evidence of a single one of them. It may also be mentioned

that as per the report of the Court Commissioner appointed in these appeals,

the goods found in the property appear to be of the respondent.

39. The counsel for the respondent has raised argument of the registration

of the documents of 26th October, 1995 at Kashmiri Gate instead of at

Janakpuri where the documents of 12th October, 1995 were registered.

However merely from the said fact no presumption of coercion can be

drawn.

40. The position which thus emerges is that though the respondent had

executed and registered the documents on 26th October, 1995, had not

removed her goods from the property and not delivered vacant possession of

the property to the appellant and taking advantage of the same the

respondent on 9th November, 1995 changed her mind and lodged the FIR.

41. However as aforesaid, the suit for injunction is found to be not

maintainable and that being the position, the findings aforesaid are but for

the sake of complete adjudication and not intended to be binding in a

properly constituted proceeding, if the appellant chooses to institute one.

42. As far as the question, whether the respondent in the suit instituted by

her and from which RSA has arisen, was entitled to a direction to the SHO

to deliver the possession of the property to the respondent, is concerned, the

same has lost its significance in view of the consent order in Writ Petition

(Criminal) No.396/1996 supra, of whosoever being found to be entitled to

possession being entitled to the keys of the property which the SHO was

directed to deposit in the Court and which the learned Addl. District Judge

has directed to be delivered to the respondent. Thus in my view, the RCA

No. 432/2000 from which RSA No.232/2004 arises as well as the said RSA

No.232/2004 were/are infructuous.

43. As far as RFA No.566/2004 is concerned, the same is dismissed

though for reasons other than those given by the learned Addl. District

Judge.

44. In the light of the aforesaid, since the suit from which the RFA arises

has been held to be not maintainable, it is deemed appropriate to relegate the

parties to a properly constituted suit. Since sufficient time has lapsed, it is

deemed appropriate to give time of three months to the appellant to institute

appropriate proceedings and to continue the interim order in force in these

appeals for the said period of three months. If the appellant institutes such a

proceeding, then the further interim order if any beyond three months shall

be subject to the interim order if any in such proceedings. On the contrary, if

the appellant chooses not to institute such appropriate proceeding, the

interim order in force shall lapse after a period of three months from today.

45. In the circumstances no costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

DECEMBER 20, 2013 pp