Sh. Udit Kalra & Anr. vs Smt. Mamta Kukreja & Anr.
2019 Latest Caselaw 520 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI

                              Judgment reserved on : 09.01.2019
                                   Date of decision: 28.01.2019
RSA 7/ 2017 & CM No.425/2017, 18088/2017, 4772-73/2018
SH. UDIT KALRA & ANR.                         ..... Petitioners
                         Through      Mr. Sanjay Kumar Pathak,
                                      Advocate.
                         Versus

SMT. MAMTA KUKREJA & ANR.            ..... Respondents
                  Through: Mr. Pradeep K. Bakshi,
                           Advocate.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
                           JUDGMENT

ANU MALHOTRA, J.

1. The appellant vide the present Regular Second Appeal i.e. RSA 7/2017 assails the judgment and decree dated 18.07.2016 of the Court of the learned ADJ-09 (Central), Tis Hazari Courts, Delhi in RCA No.61126/16 (Old RCA No.54/15) which dismissed the appeal filed by the appellants herein against the impugned judgment and decree dated 19.10.2011 of the learned Trial Court of the Civil Judge, North (IV), Tis Hazari Courts in Suit No.1235/06 vide Case ID No.C0829602006 vide which the suit filed by the respondent no.1 herein against the predecessor in interest of the appellant nos. 1 & 2 Smt. Pushpa and against Sh. Surender Kumar Jain arrayed as respondent no.2 to the present petition and who was arrayed as defendant no.2 to the said suit, was decreed in favour of Smt. Mamta

Kukreja i.e. the respondent no.1 herein. The said suit filed by Smt. Mamta Kukreja i.e. the respondent no.1 herein and the plaintiff of the said suit was a suit for possession and mesne profits in relation to the suit property bearing no.MU-35D, 3rd Floor, Pitam Pura, Delhi against the predecessor in interest of the appellant nos. 1 & 2 herein and the defendant no.2 i.e. the respondent no.2 herein.

2. Vide the decree dated 19.10.2011, the predecessor in interest of the appellants was directed to hand over the physical possession of the suit property mentioned hereinabove to Smt. Mamta Kukreja within a period of six months from the date of the decision of the suit and was also held entitled to recover the mesne profits/ damages at the rate of Rs.7,000/- per month from the defendant no.1 i.e. Smt. Pushpa, the predecessor in interest of the appellants from the date of the institution of the suit which was instituted on 13.09.2006 till the date of delivery of possession of the suit property to the plaintiff thereof i.e. Smt. Mamta Kukreja, respondent no.1 herein to the present appeal.

3. The facts qua the suit set forth in the judgment of the learned Trial Court dated 19.10.2011 read to the effect:-

"2. The brief facts of the case are as follows : -

The plaintiff is the owner of DDA LIG Flat no. MU-35D, Pitam Pura, Delhi (third floor) having been purchased the same from defendant no.2. It is stated that the said suit property was originally alloted to defendant no.1 by the DDA. Defendant no. 1 thereafter sold the said suit property to defendant no. 2 for her personal needs after receiving the entire sale consideration and defendant no. 1 executed necessary sale documents in favour of defendant no.2. Further it is stated that since defendant no.1 had very

close relations with defendant no. 2 therefore defendant no.2 allowed defendant no. 1 to remain in possession of the said suit property till defendant no.1 could arrange an alternative accommodation for herself. Defendant no. 2 further sold the suit property to the plaintiff and after receiving the sale consideration defendant no. 2 executed the sale documents i.e agreement to sell, GPA etc. dated 08/08/02 in favour of plaintiff. It is stated that defendant no.1 remained in physical possession to the suit property as defendant no. 2 had assured that defendant no.1 shall vacate the suit property within 6 months after defendant no.1 could arrange-alternative accommodation for herself. Plaintiff, however, got the suit property converted into free hold from the DDA by depositing necessary charges. It is alleged that plaintiff had requested defendant no. 1 on several occasions to vacate the suit property, however, defendant no. 1 failed to vacate the same. Thereafter plaintiff served a legal notice dated 21/07/06 on defendant no. 1 thereby revoking the licence of defendant no.1 and to deliver the vacant possession of the suit property till 31/08/06 and further called upon defendant no.1 to pay damages for illegal use and occupation of the suit property after 01/09/2006 @ Rs. 7000/- per month. However, defendant no. 1 did not vacate the suit property, therefore, the plaintiff has filed the present suit for possession of the suit property as well as damages for use and occupation of the suit property against defendant no. 1 & 2.

3. Defendant no. 1 has contested the present suit and has filed the WS. In the WS, the defendant no. 1 has taken the preliminary objection that defendant no. 1 was undergoing financial crisis in the year 1997, therefore defendant no.1 had approached defendant no. 2for grant of loan. The said loan was granted to defendant no.1 subject to the condition that original documents of the suit property shall behanded over to defendant no. 2 and further that defendant no. 1 shall execute GPA as well as other documents in respect of suit property in favour of defendant no. 2. It is stated that

defendant no. 1 accepted the said conditions of defendant no. 2 since she was in dire need of money and that defendant no. 2 obtained the signatures of defendant no. 1 on some blank papers at the time of execution of GPA, Will dated 08/06/97.It is stated that defendant no. 2 malafidely and with dishonest intention did not pay the agreed loan amount to defendant no.1 and on 04/04/05defendant no.1 got the said documents executed in favour of defendantno.2 cancelled by way of registered cancellation deed.

4. In reply on merits, it is alleged that defendant no. 1 is actual owner of the suit property and in possession of the same. It is further stated that defendant no. 2 has no right, title or interest in the suit property. It is further stated denied that defendant no. 2 sold the suit property to plaintiff and it is stated that said documents are fabricated documents. It is alleged that defendant no. 2did not have the right to execute the sale documents as defendant no. 2is not the owner of the suit property in question. It is further denied that defendant no. 1 had agreed to vacate the suit property within 6 months after arranging alternative accommodation. Defendant no. 1 has further denied that defendant no. 1 is liable to pay damages for illegal use and occupation from 01/09/06 @ Rs.7000/- per month. Therefore itis prayed that suit of the plaintiff, be dismissed.

5. In the WS filed by defendant no.2, defendant no. 2 has stated that plaintiff is owner of the suit property and that originally suit property was allotted to defendant no.1 and same was sold to defendant no. 2, however, defendant no. 1 was allowed to remain in possession of the same till she could arrange alternative accommodation. Defendant no. 2 has also affirmed in the WS that defendant no. 2 sold the suit property to plaintiff after receiving entire sale consideration on 08/08/2002 after execution of the necessary sale documents in favour of plaintiff.

6. In the replication filed by the plaintiff, averments made in the WS of defendant no. 1 were denied and reiterated the averments made in the plaint. Plaintiff also affirmed the averments made in the WS of defendant no.2."

4. Issues framed by the learned Trial Court on 23.01.2007 were to the effect:-

"1. Whether the suit has been filed by a duly authorized person? OPP

2. Whether the suit has been filed in collusion with defendant no. 2 herein? OPD-1

3. Whether the plaintiff is the owner of the suit property and if so, whether she is entitled to seek possession thereof? OPP

4. If the answer to issue no. 3 is in affirmative then whether the plaintiff is entitled for mesne profits (if any) and at what rate and for which period? OPP

5. Relief."

5. The evidence led before the leaned Trial Court was through the testimony of the plaintiff i.e. the respondent no.1 herein Smt. Mamta Kukreja who appeared as PW-1 and produced the documents:-

       (i)     Special Power of attorney Ex.P-1.
       (ii)    Registered Sale Agreement dated 08/08/02 Ex.P-2.
       (iii)   Site Plan Ex.P-3.
       (iv)    Copy of Conveyance Deed Ex.P-4.
       (v)     Copy of Will Ex.P-5.
       (vi)    Copy of registered GPA Ex.P-6.
       (vii) Receipt of payment Ex.P-8.




        (viii) Copy of notice Ex.P-9.
       (ix)    Postal receipt Ex.P-10 and AD Card is Ex.P-11.
       (x)     Copy of Conveyance Deed Ex.P-12.
       (xi)    Original documents (collectively exhibited) Ex.P-13.

6. The defendant no.1 i.e. the predecessor in interest of the appellants produced Sh. Om Prakash, LDC, Sub Registrar Office-VII, Pitam Pura, Delhi as DW-1. DW-1 placed on record following documents:-

(i) Cancellation of GPA dated 04/04/2005 Ex.DW1/A.

(ii) Cancellation of Will dated 04/04/2005 Ex.DW1/B, and thereafter produced Sh. S.N.Mandal, Dealing Assistant, LAB House, DDA, Vikas Sadan, Delhi as DW-2, who placed on record the following documents:-

       (i)     Copy of affidavit Ex.DW2/A.
       (ii)    Original application dated 05/10/2006 Ex.DW2/B.

7. The defendant no.1 i.e. the predecessor in interest of the appellants herein Smt. Pushpa appeared in the witness box as DW-3 and placed on record the following documents:-

(i) Cancellation of GPA dated 04/04/2005 Ex.DW1/A.

(ii) Cancellation of Will dated 04/04/2005 Ex.DW1/B.

8. All the issues No.1 to 4 were decided in favour of the plaintiff of the said suit arrayed as the respondent no.1 to the present appeal vide judgment dated 19.10.2011. On issue No.3, which is the most material issue, the findings of the learned Trial Court were to the effect:-

17. It is the case of plaintiff that plaintiff is the owner of the suit property having purchased the same from defendant no. 2 who in turn had purchased the suit property from defendant no.1. It is further alleged by the plaintiff that defendant no. 1 is only a licencee in the suit property and has no right, title and interest in the suit property after the sale of the same by defendant no. 1 to defendant no.2. Per contra, defendant no.1 has disputed the transaction between defendant no. 1 and defendant no. 2 and has deposed that the suit property had been given to defendant no. 2 as a security towards the grant of loan facility. Defendant no. 1 also alleges that defendant no. 2 never gave any loan amount to defendant no. 1, despite the execution of GPA , Will and other title documents in his favour. Therefore, defendant no. 1 cancelled the said title documents executed in favour of defendant no.2."

9. The learned First Appellate Court vide its judgment dated 18.07.2016 has inter alia observed to the effect:-

"8. In the written arguments, Ld. Counsel for the appellant has vehemently argued that the documents Ex. DW3/P1, Ex. DW3/P2, Ex.DW3/P3 and Ex. DW3/P4, which were in the nature of Receipt, SPA, Affidavit and Rent Deed, were not proved by the plaintiff or by the respondent no. 2/ defendant no. 2. It has been further argued that during the cross-examination of the appellant, the said documents were never put to the appellant. It has been further argued that the appellant was asked about her signatures only on the abovesaid documents. It has been further argued that not even a single suggestion was put to the appellant with regard to the contents of the abovesaid documents. It has been further argued that rather, the case of the appellant is strengthened as the appellant has taken the stand that the respondent no. 2/ defendant no. 2 had got signatures of the appellant on various blank documents.

9. The abovesaid submissions of the Ld. Counsel for the appellant necessitate that the defence of the appellant as

contained in her written statement be looked into carefully. The defence of the appellant as contained in the written statement has already been narrated hereinabove.

10. Even at the cost of the repetition, I would like to state here that the appellant, in the written statement, has not denied the execution of the GPA and Will etc. in favour of the respondent no. 2 on 08.06.1997. The appellant, in the written statement, in para no. 1 of the preliminary objections has taken the stand that she was under financial crisis in the year 1997 and she had approached the respondent no. 2 for grant of the loan facility.

11. The stand of the appellant is to the effect that the respondent no. 2 had agreed to grant the loan to the appellant on the condition that the original documents of the flat in question were to be handed over to the defendant no. 2/ respondent no. 2 and the appellant had to further execute the GPA/ Will in respect of the suit property in favour of the respondent no. 2/ defendant no. 2. In the same para, the appellant has admitted the execution of the GPA and Will dated 08.06.1997 in favour of the respondent no. 2, but, the appellant has put forth the version that at the time of execution of the GPA and Will dated 08.06.1997, the signatures of the appellant were taken on various blank papers including some blank stamp papers.

12. It has been further stated by the appellant that even after the execution of the said documents, the respondent no. 2 failed to grant the loan to the appellant and that is why, immediately on 04.04.2005, she got cancelled the documents executed by her in favour of the respondent no. 2 by way of a registered Cancellation Deed.

13. Perusal of the impugned judgment and decree dated 19.10.2011, to my mind, reveals that the Ld. Trial Court has correctly appreciated the evidence led by the parties to

the abovesaid suit. It has to be seen that the deceased appellant was not an illiterate lady. In the cross- examination dated 24.08.2011, the deceased appellant has categorically admitted that she retired as a Supervisor from the MTNL and that her husband was working in the air force in the Technical Department. On the abovesaid documents Ex. DW3/P1 to Ex. DW3/P4, in the cross- examination done on 24.08.2011, DW3 (appellant) has categorically admitted her signatures and photograph as well. The appellant, in the same cross-examination done on 24.08.2011 has again stated that she was not able to tell as to on how many documents, her signatures were obtained. DW3 was unable to tell the place, where, she had signed the documents. DW3 was not able to remember as to whether the said documents were executed in the office of the Sub-Registrar, Pitampura, Delhi. DW3 has also admitted her thumb impression on the back side of the document Ex. DW3/P2. DW3 has categorically admitted that she executed a Will and SPA in favour of the respondent no. 2/ defendant no.2."

10. The appellants vide the present appeal seek to re-agitate the facts concurrently held against Smt. Pushpa Kumari i.e. the defendant no.1 by the learned Trial Court and by the First Appellate Court and seek to reiterate that the GPA and a Will dated 08.06.1997 in favour of the respondent no.2 i.e. the defendant no.2 had been fraudulently got signed by her by the defendant no.2 i.e. the respondent no.2 in as much as her signatures were taken on some blank papers and that she had only handed over original title documents to the defendant no.2/ respondent no.2 with a view to create an equitable mortgage as she was in dire need of money and that those original documents were misused by the defendant no.2 by execution of the agreement to sell, GPA all dated 08.08.2002 in favour of Smt. Mamta Kukreja i.e. the

plaintiff of the suit arrayed as the respondent no.1 to the present appeal and that vide two separate registered cancellation deeds each dated 04.04.2005, the defendant no.1 i.e. Smt. Pushpa Kumari had got both the GPA and the Will dated 08.06.1997 cancelled by separate cancellation deeds dated 04.04.2005 and she also executed a Will dated 04.04.2005 in respect of suit property in favour of the appellants to the present appeal.

11. The substantial questions of law that the appellants seek to urge for consideration and determination of this Court are to the effect:-

i) Whether the learned Trial Court was justified in proceeding ahead with the trial of Suit No.1235/06 without even framing an issue regarding maintainability of the Suit No.1235/06 for want of jurisdiction of the learned Trial Court despite specific objection raised by the defendant No.l (Appellants' predecessor) to its jurisdiction in the written statement?

ii) Whether the learned Appellate Court committed jurisdictional error by not even considering and deciding the application filed on behalf of the appellants under Order 41 Rule 27 CPC for filing additional evidence? If yes, its effect.

iii) Whether the impugned order passed by the learned Appellate Court as also the judgment/ decree dated 19.10.2011 passed by the learned Trial Court suffers from perversity for the reason that the pleadings and evidence on record having not been judicially and properly read and considered by both the learned Courts below?

iv) Whether documents got executed by a person in respect of a property by playing fraud can be relied

upon to deprive ownership of the true owner of the property?

v) Whether the respondent No.l/ plaintiff who came to the Court with unclean hands and concealed material facts was entitled to any relief?"

12. A bare perusal of the testimony of Smt. Pushpa Kumari examined before the learned Trial Court as DW-3 brings forth that DW-3, Smt. Pushpa Kumari i.e. the defendant no.1 was an educated lady who retired as Supervisor from the MTNL and as per documents Ex.DW3/P1 i.e. the Receipt, Ex.DW3/P2 i.e. Special Power of Attorney, Ex.DW3/P3 i.e. Affidavit out of which Ex.DW3/P2 & Ex.DW3/P3 are registered documents and also bear the signatures of Smt. Pushpa Kumari and the testimony of DW-3, Smt. Pushpa Kumari bring forth that the said documents have been signed by her admittedly and the said documents also bear the signatures of her husband, Sh. Anil Kumar as a witness and both the said documents were registered at the Sub-Registrar's Office at Pitam Pura, coupled with the factum that the husband of Smt. Pushpa Kumari who as per the document Ex.DW-3/P2, Ex.DW-3/P3 signed as a witness to the execution of the said documents by Smt. Pushpa Kumari was working in the Air Force, Technical Department, coupled with the factum that the defendant no.1 i.e. the predecessor in interest of the appellants had not at any stage claimed that the documents exhibited Ex.DW-3/P2, Ex.DW-3/P3 were in any manner forged or fabricated by the respondent no.1 or that the signatures of the defendant no.1 i.e. Smt. Pushpa Kumari were obtained on the said documents by any coercion,

threat or undue influence, the findings of the learned Trial Court and upheld by the First Appellate Court in relation to the execution of the said documents exhibited as Ex.DW-3/P1, Ex.DW-3/P2 & Ex.DW- 3/P3 cannot be faulted as there is nothing to indicate any perversity in the analysis of the same. As rightly held by the learned Trial Court, the cancellation deeds Ex.DW1/A & Ex.DW1/B are dated 04.04.2005 and that the defendant no.1 chose not to exercise her rights to cancel Ex.DW-3/P1, Ex.DW-3/P2, Ex.DW-3/P3 after execution of the same in the year 1997 in favour of the defendant no.2 till 2005 for a period of 8 years has not been satisfactorily explained by the defendant no.1 i.e. the predecessor in interest of the appellants herein.

13. During the course of submissions that were made on behalf of the appellants, it was inter alia sought to be contended that none of the documents executed by the defendant no.2 i.e. the respondent no.2 in favour of the plaintiff i.e. the respondent no.1 to the present appeal were the requisite documents that could confer title on Smt. Mamta Kukreja in as much as the documents executed by the respondent no.2 were only a GPA, Will and affidavit which could not confer and convey any title in respect of immoveable property in view of the verdict of the Hon'ble Supreme Court in "Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Ors." VII (2011) SLP 494 wherein it has been laid down by the Hon'ble Supreme Court that an immoveable property cannot be sold except by way of a registered sale deed. Nevertheless, it cannot be overlooked that the said verdict itself protects the limited rights granted in terms of Section 53A of the Transfer of Property Act, 1882.

14. Thus, as the said documents were executed prior to the amendment to Section 53A of the Transfer of Property Act, 1882 which came into effect from 24.09.2001, whereby the words, "the contract, though required to be registered, has not been registered," have been omitted from in Section 53A of the Transfer of Property Act, 1882 on the date of execution of the documents, the same had been validly executed on 08.06.1997.

15. Section 53A of the Transfer of Property Act, 1882 as it now stand w.e.f. 24.09.2001 reads to the effect:-

"53 A. Part performance.--Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty,

And the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract,

And the transferee has performed or is willing to perform his part of the contract,

Then, notwithstanding that [---] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."

16. Thus, in the circumstances of the case of the case, it is apparent that none of the substantial questions of law as sought to be urged by the appellants through the present appeal,- arise.

17. The available record also indicates that the rights and interest in the suit property have already been transferred to the respondent no.1 by way of a conveyance deed by the DDA, the paramount lessor and as observed vide proceedings dated 07.02.2018, it was open to the appellants to challenge the legitimacy of the conveyance deed dated 12.08.2005 in favour of the respondent no.1 in appropriate proceedings and as observed vide proceedings dated 07.02.2018 in the present appeal in the absence of any pronouncement to the contrary, the said conveyance deed, a registered document shall hold sway in as much as it was registered in the office of the Sub-Registrar-VII, Delhi on 12.08.2005 at serial no.11326 in book no.1 Volume no.1645 at pages 144-146.

18. The present appeal and the accompanying applications are thus dismissed.

19. The interim stay of the operation of the impugned judgment granted vide order dated 06.01.2017 read with order dated 16.03.2017 is thus vacated.

ANU MALHOTRA, J th JANUARY 28 , 2019 NC/MK