Brij Nandan Gupta vs Geeta
2017 Latest Caselaw 3452 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No. 148/2016

%                                                     20th July, 2017

BRIJ NANDAN GUPTA                                       ..... Appellant
                          Through:       Mr. Pardeep Gupta, Mr.
                                         Parinav Gupta, Ms. Mansi
                                         Gupta and Mr. Moazzam Ali,
                                         Advocates.
                          versus
GEETA                                                   ..... Respondent

                          Through:       Mr. Rajiv Chauhan, 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 Second Appeal under Section 100 of the

Code of Civil Procedure, 1908 (CPC) is filed by the appellant

impugning the concurrent judgments of the courts below; of the trial

court dated 30.10.2013 and the first appellate court dated 30.9.2015

dismissing the suit of the appellant/plaintiff filed against the

respondent/defendant for possession of the suit property which

comprises of one room in the Flat No. 3/23A, Pocket A-3, Ground

Floor, DDA Flats, Everest Apartment, Kalkaji Extension, New Delhi.

The suit was dismissed inasmuch as the courts below have held that

the respondent/defendant, being the daughter and one legal heir of Sh.

Girdhari Lal Verma and his widow Smt. Bhagwati Devi, had never

executed any NOC or relinquishment deed in favour of Smt. Bhagwati

Devi after the death of her husband Sh. Girdhari Lal Verma who was

the owner, and therefore, the appellant/plaintiff cannot be said to have

purchased the entire Flat no. 3/23-A i.e flat purchased by the

appellant/plaintiff would be less the share of the respondent/defendant

in the flat in question.

2. The facts of the case are that admittedly Sh. Girdhari Lal

Verma was the owner of the property being Flat no.3/23-A, Pocket-3,

Ground Floor, DDA Flats, Everest Apartment, Kalkaji Extension,

New Delhi. On the death of Sh. Girdhari Lal Verma it is pleaded by

the appellant/plaintiff that his widow Smt. Bhagwati Devi became the

sole owner of the property on account of her children, being two sons

and two daughters; including the respondent/defendant/one daughter,

had relinquished on 15.1.1993 their rights in the suit property in

favour of their mother/Smt. Bhagwati Devi. Since the mother Smt.

Bhagwati Devi, widow of Sh. Girdhari Lal Verma hence became the

sole owner of the suit property, she had vide registered documents

dated 7.8.2008 including the agreement to sell, power of attorney, Will

etc transferred the Flat no. 3/23-A to the appellant/plaintiff. Since the

respondent/defendant failed to vacate the suit property/room in the

subject flat, the subject suit for possession was filed.

3. Respondent/defendant contested the suit and prayed for

dismissal of the suit on the ground that the documents relied upon by

the appellant/plaintiff executed by the mother Smt. Bhagwati Devi

were forged and fabricated documents. It was also pleaded that

neither the respondent/defendant nor her brothers and sisters ever

signed any NOCs for transfer of the property in the name of the

mother. It is pleaded that the appellant/plaintiff illegally got the

documents of the flat in question executed in his name. It was further

pleaded on behalf of the respondent/defendant that the suit has been

filed after the death of the mother to extort money from the

respondent/defendant. Accordingly, suit was prayed to be dismissed.

4. After pleadings were complete the trial court framed the

following issues:-

"1. Whether plaintiff has not approached the court with clean hands and has suppressed the material facts? OPD

2. Whether plaintiff is entitled for the decree of possession as prayed? OPP

3. Whether the plaintiff is entitled for the compensation on account of illegal occupancy @ Rs.2,00,000/- as prayed in para (b) in prayer clause? OPP

4. Relief."

5. The evidence led by the parties has been referred to by

the trial court in paras 9 and 10 and these paras read as under:-

"9. To prove his case, the plaintiff examined only one witness i.e. himself as PW1 and tendered his evidence by way of affidavit (Ex.PW1/X) on similar lines as his plaint and was duly cross examined by the defendant. PW1 also relied upon the following documents i.e  Registered transfer documents i.e. Agreement to sell and purchase and General Power of Attorney dated 07.08.2008 (Ex.PW1/A) (Colly).

 Site plan (Ex.PW1/B)  Papers in favour of Sh. Girdhari Lal Verma executed by Sh. Bir Bhan dated 19.01.1989 (Ex.PW1/C)(Colly)  Ikrarnama/No Objection Certificate (Ex.PW1/D) (Colly)  Complaint dated 31.08.2008 (Mark PW1/E) / (Mark A)  Complaint dated 12.06.2009 (Ex.PW1/F) During his cross examination the witness was confronted with Mukhtiyarnama (Ex.PW1/D1)

10. The defendant examined only herself as DW 1 in support of her defence and tendered her evidence by way of affidavit (Ex.DW1/A) on similar lines as her written statement. DW1 has also relied upon copy of a complaint dated 31.08.2008 i.e Mark A."

6. For the purpose of disposal of this Regular Second

Appeal the following substantial questions of law are framed:-

(i) Whether the courts below have not committed a manifest illegality and gross perversity in failing to hold that the respondent/defendant had executed any Ikrarnama dated 15.1.1993, although, this document was exhibited and proved by the appellant/defendant collectively along with the entire set of NOCs executed by the two sons and two daughters of Smt. Bhagwati Devi including the respondent/defendant, and which documents were exhibited as Ex.PW1/D (Colly).

(ii) Whether the courts below have committed a complete perversity in rejecting reliance upon a police complaint dated 31.8.2008 made by the respondent/defendant to the police, and proved as Ex.PW1/E by the appellant/plaintiff, only allegedly because the respondent/defendant pleaded that she had not written the words in the same being "Vijay Gupta ko sale kar chali gayee" i.e mother left after selling the property to Sh. Vijay Gupta although it is inconceivable that in a complaint written in hand by the respondent/defendant, there could ever arise the possibility of the aforesaid words not existing in the police complaint Ex.PW1/E dated 31.8.2008 in view of its positioning in the last line of first para of the complaint.

(iii) Whether the courts below have committed a gross illegality and perversity by refusing to hold the

appellant/plaintiff as the owner of the property although not only the entire original documents of the suit property were in possession of the appellant/plaintiff having been delivered the same by Smt. Bhagwati Devi, but also because no other legal heir of Smt. Bhagwati Devi, being the two brothers and one sister of the respondent/defendant ever objected to the ownership of the mother Smt. Bhagwati Devi of the Flat no. 3/23-A and also thereafter of the transfer of the Flat No. 3/23-A by the mother Smt. Bhagwati Devi to the appellant/plaintiff?.

7. That Smt. Bhagwati Devi executed the transfer

documents being an agreement to sell, power of attorney etc in favour

of the appellant/plaintiff cannot be doubted in view of the fact that the

documents are registered documents. These documents also cannot be

doubted because except the respondent/defendant being one out of the

four children, no other legal heir of Smt. Bhagwati Devi being her

other three other children being two sons and one daughter, have ever

objected to the transfer of the suit property by the title documents

dated 7.8.2008. Both the courts below have committed a complete

illegality in holding that it was upon the appellant/plaintiff to summon

the two brothers and one sister of the respondent/defendant to show

validity of the documents dated 7.8.2008 because in fact it was equally

upon the respondent/defendant to bring her brothers and sister in the

witness box to depose that they were objecting to the documents of

transfer of the suit property dated 7.8.2008 by the mother Smt.

Bhagwati Devi to the appellant/plaintiff because these three legal heirs

had not given up their rights in the suit property to their mother Smt.

Bhagwati Devi.

8. I may note that the substantial part of the consideration

paid under the registered agreement to sell dated 7.8.2008 by the

appellant/plaintiff to Smt. Bhagwati Devi, being a sum of Rs.3.5 lacs

out of a total of Rs. 6 lacs, was paid by means of the banking

instrument and which is mentioned in the first part of the agreement to

sell itself. Therefore, the present is not a case where the entire

consideration has been paid in cash to Smt. Bhagwati Devi and once

money for transfer of the Flat no.3/23-A goes by means of banking

instrument to the bank account of Smt. Bhagwati Devi, it cannot be

held that the documents were forged and fabricated or the documents

were illegally got signed by the appellant/plaintiff from the mother

Smt. Bhagwati Devi as pleaded by the respondent/defendant.

9. Accordingly, it is held that the appellant/plaintiff had

become owner of the Flat No.3/23-A by virtue of the documents dated

7.8.2008.

10. I may also note that the father Sh. Girdhari Lal Verma

died in the year 1990. The Ikrarnama as also the NOCs executed by

all the children of Smt. Bhagwati Devi in her favour are of the year

1993. From the year 1993 to 2008 no one disputed the exclusive

ownership of Smt. Bhagwati Devi, including the

respondent/defendant. Though respondent/defendant has claimed that

she is not the signatory to the Ikrarnama dated 15.1.1993 and the NOC

of the same date, however, I have not found any case pleaded and

proved by the respondent/defendant that she has never been aware of

the existence of the Ikrarnama or the NOCs executed by her brothers

and sister in favour of her mother. In the Ikrarnama dated 15.1.1993

the signatures of the respondent/defendant appear in the middle of the

signatures of the three other brothers and sisters. Therefore, there

remains no doubt as to the authenticity of the Ikrarnama dated

15.1.1993 and which is proved as one of the documents in the set of

documents Ex.PW1/D (colly). Clearly therefore, the defence of the

respondent/defendant is a dishonest stand and a third party purchaser

who is not a member of the family is being irreparably prejudiced on

account of this false and dishonest stand being taken by the

respondent/defendant that she did not execute any NOC or any

Ikrarnama giving exclusive ownership rights in the Flat No.3/23-A to

the mother Smt. Bhagwati Devi.

11. It is also relevant then to note that the mother died in the

year 2009 i.e almost after one year of execution of the documents

dated 7.8.2008 in favour of the appellant/plaintiff and the

appellant/plaintiff receiving possession of the entire flat minus the

possession of the room in possession of the respondent/defendant, and

in this period none of the children of Smt. Bhagwati Devi including

the respondent/defendant, ever objected to the appellant/plaintiff

taking over possession of the flat in question. Obviously, therefore

respondent/defendant knew that the appellant/plaintiff had purchased

the property, and which he could not validly have unless the mother

Smt. Bhagwati Devi was the owner, and who had become the owner

on account of her four children including the respondent/defendant

executing the Ikrarnama and the NOC in her favour. The courts below

have thus clearly committed a complete illegality and perversity in

holding otherwise.

12. In fact, to buttress the decision on the aforesaid aspect of

the suit property having been validly transferred to the

appellant/plaintiff, and he validly receiving the possession of the flat

less the room in possession of the respondent/defendant along with the

original title documents of the property, the complaint made to the

police by the respondent/defendant dated 31.8.2008 Ex.PW1/E

becomes very relevant. This complaint Ex.PW1/E dated 31.8.2008

becomes extremely relevant because this complaint shows that in

August 2008 itself i.e in the month of the transfer of the flat by the

mother Smt. Bhagwati Devi to the appellant/plaintiff the

respondent/defendant complained to the police of disputes with one

Sh. Vijay Gupta who had purchased the flat. Obviously, the name of

Sh. Vijay Gupta is written in ignorance because respondent/defendant

did not know that the name of the purchaser is Sh. Brij Nandan Gupta

and not Sh. Vijay Gupta. However, the police complaint Ex.PW1/E

dated 31.8.2008 having been made, the making of the same leaves no

manner of doubt as regards knowledge of the respondent/defendant of

transfer of the flat in question by the mother to the appellant/plaintiff.

I out-rightly reject the argument urged on behalf of the

respondent/defendant, and most illegally and perversely accepted by

the courts below, that the expression "Vijay Gupta ko sale kar chali

gayee" has been inserted subsequently inasmuch as subsequent

insertion of these words is completely impossible because they form

part and parcel of the last line of the first para of the complaint, and

which line not only exists in the middle of the complaint but that in the

absence of these words the earlier part of the line would have no

meaning. Obviously, the respondent/defendant is acting clever by half

and intends to dishonestly wriggle away from her admission made in

the police complaint Ex.PW1/E showing her knowledge of the transfer

of the suit property by her mother to the appellant/plaintiff.

Accordingly, it is held that on account of the police complaint

Ex.PW1/E dated 31.8.2008 made by the respondent/defendant herself,

and which is in her own handwriting, the courts below could not have

ignored knowledge of the respondent/defendant of the suit property

having been transferred by the mother to the appellant/plaintiff.

13. Learned counsel for the respondent/defendant laid great

stress on the fact that in the agreement to sell dated 7.8.2008 the name

of the respondent/defendant is not mentioned as a legal heir of her

mother, however, in my opinion, though there is some strength to this

argument but it is very much possible that there could have been a

typing error in the name of the respondent/defendant being left out of

the names of four legal heirs as stated in the agreement to sell dated

7.8.2008 In any case, once the Ikrarnama and the NOCs dated

15.1.1993 Ex.PW1/D (Colly) are proved to have been executed by all

the legal heirs of Smt. Bhagwati Devi including the

respondent/defendant, the respondent/defendant cannot dishonestly

and falsely contend that she had not given up her share in the suit

property in favor of her widowed mother Smt. Bhagwati Devi.

14. I may note that counsel for the appellant/plaintiff does not

press the issue of mesne profits being granted inasmuch as no

evidence has been led on this aspect.

15. In view of the above discussion, all the substantial

questions of law framed are answered in favour of the

appellant/plaintiff. The impugned judgments of the courts below

dated 30.10.2013 and 30.9.2015 are set aside. Suit of the

appellant/plaintiff will stand decreed for possession with respect to

one room of Falt No. 3/23A, Pocket A-3, Ground Floor, DDA Flats,

Everest Apartment, Kalkaji Extension, New Delhi as shown in site

plan Ex.PW1/B. Parties are left to bear their own costs.

JULY 20, 2017/ib                          VALMIKI J. MEHTA, J