Delhi High Court
Deepak Rana And Another vs Rajbir Singh Uppal And Another on 18 May, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 14.05.2015.
Judgment delivered on :18.05.2015.
+ CS(OS) 564/2011 & I.A. No.3684/2011 (under Order XXXIX
Rules 1 & 2 of the CPC)
DEEPAK RANA AND ANOTHER
..... Plaintiffs
Through Mr. Arvind Kumar Gupta, Adv
versus
RAJBIR SINGH UPPAL AND ANOTHER
..... Defendants
Through None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 Present suit has been filed by the two plaintiffs seeking permanent
injunction, declaration and cancellation of a memorandum of
understanding/agreement dated Nil attested on 25.02.2011 executed by
Rajbir Singh Uppal (defendant No. 1) as attorney of the plaintiffs and
Rahul Sharma (defendant No. 2). This memorandum of understanding
was qua property bearing No. F-3/2, Vasant Vihar, New Delhi
(hereinafter referred to as the 'suit property').
2 The averments in the plaint disclose that plaintiff No. 1 and
plaintiff No. 2 are both brothers, children of late Shri Umrao Singh
Rana. Defendant No. 1 Rajbir Singh Uppal is the brother-in-law of
plaintiff No. 1.
3 The defendants in collusion and conspiracy with one another had
fabricated and forged certain documents including the alleged
memorandum of understanding/agreement dated Nil attested on
25.02.2011 qua the suit property. This property is jointly owned by the
plaintiffs. The modus operandi adopted by the defendants was that
defendant No. 1 as a power of attorney holder of plaintiff No. 1 had
entered into an agreement/MOU with defendant No. 2 wherein he had
agreed to sell the rights in the suit property to defendant No. 2 on the
strength of a fabricated power of attorney (dated 18.02.2011) which he
was holding qua plaintiff No. 1.
4 The plaintiffs are the only legal heirs of late Umrao Singh Ranan
who had died on 22.06.2008. Their mother Sheili Ran had predeceased
him. A joint Will had been executed by their parents in favour of the
plaintiffs wherein the suit property had been bequeathed to them. The
property also stood mutated in the name of the plaintiffs on 02.09.2008.
5 On 24.02.2011, the plaintiffs received a call from an unknown
person claiming that the suit property is on sale. It was only thereafter
that the plaintiffs learnt about the fraud which defendant No. 1 had
played upon them in connivance with defendant No. 2. Defendant No. 1
is an unscrupulous person and earlier also he had forged documents for
which criminal proceedings are pending against him.
6 The plaintiffs called upon defendant No. 2 requesting him not to
use the documents i.e. the alleged memorandum of
understanding/agreement qua the suit property which had been forged
and fabricated by defendant No. 1. The plaintiffs had never executed
any power of attorney or any memorandum of understanding dated Nil
attested on 25.02.2011. The entire set of documents is forged and
fabricated and created in collusion and conspiracy of defendant No. 1
and defendant No. 2. The plaintiffs have also not received any amount
for the alleged sale of the suit property by defendant No. 1 in favour of
defendant No. 2 which had been allegedly sold vide memorandum of
understanding/agreement for a sum of Rs.30 lacs.
7 Present suit has been filed seeking a decree of declaration
declaring the memorandum of understanding/agreement dated Nil
attested on 25.02.2011 executed by defendant No. 1 and defendant No. 2
qua the suit property and power of attorney dated 18.02.2011 be null and
void. A separate decree of permanent injunction had also been sought
for restraining the defendants from interfering in the peaceful possession
of the plaintiffs in the suit property.
8 Defendants were served. Written statement was filed by both the
defendants.
9 The defence of defendant No. 1 was that he has no interest in the
suit property. He admitted that both the brothers i.e. both the plaintiffs
are the owners of the suit property. Submission was that plaintiff No. 2
had executed a power of attorney in his favour on 18.02.2011 pursuant
to which at the asking of the plaintiffs, a memorandum of
understanding/agreement had been entered into by defendant No. 1 in
favour of defendant No. 2. Present suit is without any cause of action. It
is liable to be dismissed.
10 Replication was filed reiterating the averments contained in the
plaint and refuting the submissions made in defence.
11 On the pleadings of the parties, the following issues were framed
on 01.08.2013:-
1 Whether the plaintiffs have authorized the defendant no. 1 to
enter into alleged agreement to sell the property bearing no. F-
3/2, Vasant Vihar, New Delhi? OPD
2 Whether the plaintiff no. 1 had executed Power of Attorney
dated 18.02.11 in favour of Defendant no. 1 at Mumbai and
bears the signatures of plaintiff no. 1?OPD1
3 Whether the Memorandum of Understanding / Agreement dated
nil entered by defendant no. 1 is binding on plaintiff? OPD
4 Whether the suit of the plaintiff is undervalued for the purpose
of the court fees? OPD
5 Relief
12 The onus to discharge all these issues was upon defendant No. 1.
The Local Commissioner had been appointed to expedite the trial. The
Local Commissioner has since filed his report which shows that despite
repeated notices having been served upon the parties to appear before
him and to lead evidence, the defendants did not produce any evidence.
List of witnesses had also not been filed. This was noted in the order
passed by this Court on 09.12.2013. Matter was again thereafter re-fixed
before the Local Commissioner on 17.12.2013. None had appeared for
the defendants even thereafter. On 12.03.2014, defendant No. 1 was
proceeded ex-parte. One more opportunity was granted to defendant No.
2 to appear before the Local Commissioner to lead his evidence. The
report of the Local Commissioner dated 11.11.2014 has been perused. It
was noted that neither defendant No. 1 and nor defendant No. 2 or their
authorized representative had appeared before the Local Commissioner
pursuant to the directions of this Court. They had also not filed their
evidence.
13 The onus to discharge all these issues as already been noted supra
was upon the defendants. They had never appeared in the witness box
and not having discharged the onus which was upon them, it is clear that
the averments which are made in the plaint are deemed to be admitted.
The plaintiffs are accordingly entitled to the decree as prayed for. It has
been established that the power of attorney executed and notarized on
18.02.2011 allegedly executed by plaintiff No. 1 in favour of defendant
No. 1 is forged and fabricated document and so also the memorandum
of understanding/agreement dated Nil attested on 25.02.2011 entered
inter-se defendant No. 1 and defendant No. 2.
14 Accordingly, a decree of declaration is passed in favour of the
plaintiffs and against the defendants holding that the power of attorney
dated 18.02.2011 executed allegedly by plaintiff No. 1 in favour o
defendant No. 1 and the subsequent memorandum of
understanding/agreement dated Nil attested on 25.02.2011 between
defendant No. 1 and defendant No. 2 qua the suit property (F-3/2,
Vasant Vihar, New Delhi) is declared null and void. A decree of
permanent injunction is also passed in favour of the plaintiffs and
against the defendants permanently restraining them not to interfere in
the peaceful possession of the plaintiffs in the suit property.
15 Suit disposed of in the above terms.
16 Decree-sheet be drawn. File be consigned to the Record Room.
MAY 18, 2015/A INDERMEET KAUR, J
