Poonam Arora vs Surender Kapoor & Ors
2014 Latest Caselaw 4545 Del

$~ 60
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CS(OS) 621/2011
%                            Date of decision : 17th September, 2014

        POONAM ARORA                                  ..... Plaintiff
                Through:            Mr.Rajiv Bajaj, Advocates

                           versus

        SURENDER KAPOOR & ORS                           ..... Defendant
                Through: None

        CORAM:
              HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J. (ORAL)

1. Present suit has been filed by the plaintiff for declaration and permanent injunction. Summons were issued in the suit on 14.03.2011. Defendant nos. 1, 4 and 5 entered appearance on 05.07.2011 through their counsel. Defendant nos. 1, 4 and 5 filed their respective written statements.

2. Defendant nos. 2 and 3 were served through publication in newspapers 'Veer Arjun' and 'The Hindu' dated 11.05.2012. However, none appeared for defendant nos. 2 and 3. Consequently, defendant nos. 2 and 3 were proceeded ex parte vide order dated 04.10.2012. Admission/denial of documents was concluded on 15.02.2013. Further, vide order dated 29.05.2014, defendant nos. 1,4 and 5 were also proceeded ex parte for non appearance.

3. Learned counsel for the plaintiff at the outset gives up the relief against defendant no.5 as he submits that the loan amount stands repaid.

4. Plaintiff has filed her affidavit by way of evidence and same has been exhibited as Ex. PW1/A. PW1 has deposed in her affidavit that being a private tutor, out of her savings and hard earned money she purchased the property, bearing no.A-15, 2nd floor, Front side Gujrawala Town, Part-I, Delhi.

5. PW1 has also deposed that she is the absolute owner of the property bearing No.A-15, 2nd Floor, Front Side Gujrawalan Town, Part-I, Delhi, (hereinafter referred as 'the suit property') having purchased the same vide registered sale deed dated 26.02.2004 registered with the Sub- Registrar, Delhi. The factual matrix of the transfer of the title to the plaintiff is as under:

a. The suit property through a Conveyance Deed registered as No.6599 in Addl. Book no.1, on pages 1 to 3 dated 29.9.1993 duly registered at the office of the Sub-Registrar, Delhi was allotted to one Late Smt. Beena Mehta w/o Shri. R.S. Mehta and defendant No.3 - Smt. Jasvinder Kaur W/o Sh. Amarjeet Singh. Smt. Beena Mehta expired on 28.2.1994. b. After the death of Smt. Beena Mehta on 28.2.1994 she left behind three legal heirs i.e. (i) Sh. Jagmeet Singh - son, (ii) Mrs. Ripu Daman - daughter and (iii) Sh. R.S. Mehta - husband. Thereafter son and daughter of Smt. Beena Mehta, relinquished their shares in favour of Sh. R.S. Mehta.

c. Thereafter, Sh. R.S. Mehta with Smt. Jasvinder Kaur sold the suit property i.e. front side flat on 2nd floor (without roof rights) areas measuring 150 sq. yds. through registered GPA and other documents in favour of Smt. Surender Kapoor who is defendant no.1 in the present suit. It has also been deposed that Smt. Surender Kapoor i.e. defendant no.1 was declared as owner of the property by virtue of various documents

including GPA registered at the office of Sub-Registrar, Delhi under documents registered as No.352, in Addl. Book No.4, Vol. 4216 on pages 70-74 registered on 6.1.1997.

d. Further, defendant no.1, after receiving the total sale consideration of Rs.6 lacs vide sale deed registered on 26.2.2004, sold the suit property to the plaintiff and on the same date possession was also given to the plaintiff. The complete chain documents of suit property have been exhibited as Ex. PW1/1(colly).

6. PW1 has further deposed that on 9.12.2010, to utter her surprise, she found a notice on the wall of suit property pasted by defendant no.5 Bank, demanding the possession of the suit property. It has also been deposed that she has never taken any loan from the defendant no.5 Bank and such acts on the part of the defendant No.5 are arbitrary and illegal and outcome of the fraud which may be played with the connivance of all the defendants. It has also been deposed that before purchasing the suit property, plaintiff took each and every care and got all the papers verified from the legal experts.

7. PW1 has also deposed that since the date of registration of the sale deed, she has been living in the suit property with her family members and she does not have any other accommodation except the present property in her favour.

8. PW1 has next deposed that in the notice dated 9.12.2010 it was alleged by the defendant No.5 that the possession of the suit property shall be taken by the defendant No 5 within 10 days of the receipt of the notice.

9. PW1 has also deposed that after going through certain verification and investigation subsequent to receiving of the notice, she came to know that the defendant nos.2 and 3 have taken loan against the suit property. It has

also been deposed that defendant no.3 is not the owner of the suit property as by virtue of the registered GPA dated 6.1.1997, defendant no.3 has sold her right to defendant no.1 and there is a clear cut fraud which has been played upon the plaintiff as the defendant no.2 claims himself to be the owner of the property.

10. Further, Sh. Harvinder Singh son of Sh. Charan Singh r/o H.No. 103, Kalyan Vihar, Delhi, stood as a guarantor for the loan which was given in favour of defendant no.2 on the sale deed dated 12.06.2002 registered by the Defendant no.4 in favour of Defendant No.2. As per the sale deed dated 12.06.2002, defendant no.3 had given attorney dated 01.08.2002 in favour of defendant no.4, on the basis of which defendant no.4 executed the sale deed dated 12.06.2002 in favor of defendant no.2. It has also been deposed that defendant no.3 could not issue such attorney when suit property was already sold in favour of defendant no.1 in the year 1997.

11. PW1 has further deposed that after she learnt about the fraud played by the defendants upon her, she issued a legal notice dated 17.2.2011 to the defendants and under reply dated 22.02.2011 to the said notice, the defendants have affirmed the plaintiff to be the absolute owner of the suit property. Legal notice dated 17.02.2011 and reply dated 22.02.2011 have been exhibited as Ex. PW1/2 and Ex. PW1/3, respectively.

12. I have heard counsel for the plaintiff and carefully perused the documents, which have been placed on record along. I have also perused the affidavit by way of evidence filed by plaintiff. Since the defendants were proceeded ex parte, the evidence of the plaintiff has gone unchallenged and un-rebutted.

13. On the basis of the documents placed on record plaintiff has been able to establish that she is the absolute owner of the suit property. Further, as

provided in the aforegoing paragraphs, defendant no.3 has sold the suit property to defendant no. 1 through GPA and other documents and thereafter defendant no.1 further sold the suit property to the plaintiff vide registered sale deed dated 26.02.2004. Plaintiff has further established that defendant no.3 after selling the suit property to defendant no.1 cannot execute said GPA dated 01.08.2002 in favor of defendant no.4. Therefore, the sale deed dated 12.08.2002, executed by defendant no.4 in favor of defendant no.2, on the basis of GPA dated 01.08.2002, is void, as defendant no.3 had no right over the suit property while executing the said GPA dated 01.08.2002.

14. In view of the above, the present suit is decreed in favour of the plaintiff and against the defendant nos. 1 to 4 in terms of prayer (a) and (c) in the plaint with costs. As the plaintiff has given up his relief against defendant no.5, prayer (b) is dismissed.

15. Decree sheet be drawn up accordingly.

(G.S.SISTANI) JUDGE SEPTEMBER 17, 2014 ssn /pdf