Delhi High Court
Nikita Gupta vs Alok Gupta & Ors. on 21 May, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 21st May, 2019
+ CS(OS) No.553/2016 & CC No.19/2017
NIKITA GUPTA .... Plaintiff
Through: Ms. Sangeeta Chandra & Mr.
Deepak Khadaria, Advs.
Versus
ALOK GUPTA & ORS. ...Defendants
Through: Mr. Tanmaya Mehta, Mr.
Saurabh Gupta, Mr. Puneet
Yadav, Mr. Siddhanth K. Singh,
Mr. Anurag Sahay, Mr. Raghav
Wadhwa & Ms. Mallika Bhatia,
Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. IA.No.7334/2017 of the plaintiff under Order XII Rule 6 of the
Code of Civil Procedure Code, 1908 (CPC), for decree of possession
on admissions, is for consideration in this suit, on the basis of title, for
recovery of possession of immovable property and Counter Claim for
recovery of Rs.5,45,20,000/-. The counsels have been heard.
2. The plaintiff instituted this suit, pleading that (i) all the five
defendants i.e. (a) Alok Gupta, (b) Satyawati Gupta, (c) Anita Gupta,
(d) Reena Gupta, and, (e) Sheetal Gupta are the legal representatives
of the maternal uncle of the husband of the plaintiff (Kapil Gupta); (ii)
vide registered Partition Deed dated 29th January, 1999 Sh. Sant Raj
Gupta became the sole and exclusive owner of an area measuring
91.50 sq. yds. along with construction thereon in property No.J-108-
A, Rajouri Garden, New Delhi having a total area of 388.8 sq. yds.;
CS(OS) No.553/2016 Page 1 of 19
(iii) after the demise of Sh. Sant Raj Gupta, the defendants became co-
owners of the said 91.50 sq.yds. of property having one-fifth share
each; (iv) the defendant no.1 had taken huge cash loans from the
husband of the plaintiff on various occasions and a sum of more than
Rs.3,80,00,000/- was due from the defendant no.1 to the husband of
the plaintiff and the defendant no.1 had acknowledged the said cash
loan amounting to Rs.3,79,16,250/- in his own handwriting; (v) the
defendant no.1 was avoiding to pay the said monies and when
confronted, told the husband of the plaintiff that the amount would be
paid as soon as he receives the money from his aforesaid portion
admeasuring 91.50 sq.yds. of the property; (vi) the defendant no.1, in
September, 2015 approached the husband of the plaintiff stating that
he was interested in selling the aforesaid portion ad-measuring 91.50
sq.yds. of the property of which he along with other defendants was
the owner; (vii) the relevant part of para no.4 of the plaint is as under:
"4 .......... it was agreed that the entire property measuring
91.50 sq. yds. shall be transferred / sold in the name of the
plaintiff for a total consideration of Rs.8,50,00,000/-
(Rupees Eight Crores Fifty Lacs Only), out of which a sum
of Rs.1.50 Crores was to be paid vide five cheques of
Rs.30,00,000/- in the name of each of the defendants.
Though, the total amount was settled at Rs.8.50 Crores for
the entire property measuring 91.50 sq. yds., it was agreed
that the cash loan amount of Rs.2.30 Crores was to be
adjusted first. Accordingly, on 22.09.2015, a receipt was
executed by the defendant No.1, whereby, the defendant
No.1 had acknowledged the receipt of Rs.2,30,00,000/-
CS(OS) No.553/2016 Page 2 of 19
from the plaintiff. Apart from this, five cheques of
Rs.30,00,000/- each amounting to Rs.1,50,00,000/- were
also mentioned in the said receipt dated 22.09.2015. It is
not out of place to mention here that the amount of
Rs.1,50,00,000/- was decided between the parties on the
request of the defendant No.1 as he wanted to avoid the
payment of tax on account of capital gain.";
(emphasis added)
(viii) the aforesaid portion of the property comprises of one shop on
the ground floor, two room set on the first floor and second floor and
one room on the third floor; (ix) an agreement was also executed by
defendant no.1 and husband of the plaintiff on 22nd September, 2015
and possession of the third floor handed over to the husband of
plaintiff in terms of the agreement and the defendant no.1 agreed to
vacate the shop by 31st December, 2015; however since the only
access to the third floor was through the shop, no locks of the husband
of the plaintiff were put on the third floor; (x) paras no.6,7 and 9 of the
plaint are as under:
"6. That on 23.09.2015, the husband of the plaintiff went to the
site to get the same measured, it was revealed by the
defendant No.1 that he had already sold the back portion of
the property to some third party and the area which was
intended to be transferred to the plaintiff was about 62.0 sq.
yds. consisting of one shop on the ground floor, two room
set on the first floor and second floor and one room on the
third floor. After detailed discussion, it was agreed that the
consideration / purchase price would be reduced
proportionately i.e. by 32% and thus, the entire sale
CS(OS) No.553/2016 Page 3 of 19
consideration amount of Rs.8.50 Crores was reduced by
Rs.2.72 Crores and it was fixed at Rs.5.78 Crores.
Therefore, out of the total consideration amount of
Rs.5.78 Crores, a sum of Rs.3.80 Crores stands paid /
adjusted as mentioned in the receipt dated 22.09.2015
leaving behind a balance of Rs.1.98 Crores, for the suit
property measuring 62.0 sq. yds. in the premises bearing
No.J-108-A, Rajouri Garden, Village Bassai Darapur, New
Delhi as shown in the red colour in the site plan.
7. That it was further agreed on 23.09.2015 that the remaining
cash loan transaction between the defendant No.1 and the
husband of the plaintiff amounting to Rs.1.50 Crores was
also to be adjusted in the balance sale price of Rs.1.98
Crores. Thus, after deducting Rs.1.50 Crores from the
balance sale price of Rs.1.98 Crores, a sum of
Rs.48,00,000/- (Rupees Forty Eight Lacs Only) was left as
balance sale consideration. The said amount was
acknowledged by both the parties i.e. Mr. Kapil Gupta, on
behalf of the plaintiff on the one hand and the defendant
No.1 on his behalf and on behalf of the other defendants, on
the other hand.
9. That however, since the goods of the defendant No.1 were
lying for a long time in the said portion of the property to be
handed over to the plaintiff, defendant No.1 requested Mr.
Kapil Gupta to permit him to deliver the possession of the
shop after 2-3 months. Keeping in mind the close relations
between the parties, the plaintiff agreed for the same and it
was decided that the Sale Deed would be executed on
24.09.2015, upon the receipt of entire sale consideration,
CS(OS) No.553/2016 Page 4 of 19
however, the cheques would be deposited by the defendants
only after the delivery of the vacant and physical
possession.";
(emphasis added)
(xi) a Sale Deed was executed and registered by the defendants in
favour of plaintiff on 24th September, 2015 and the plaintiff paid the
balance amount of Rs.48,00,000/- in cash to defendant no.1 and
cheques for Rs.30,00,000/- in favour of each of the five defendants
and a cheque for Rs.1,50,000/- towards TDS amount; (xii) the Sale
Deed disclosed actual physical vacant possession of the property sold,
to have been delivered to the plaintiff, and the defendants being left
with no claim, title or interest in the property sold; (xiii) para no.13 of
the plaint is as under:
"13. That however, it is pertinent to mention here that though, it
was stated in the Sale Deed that the possession of the property in
question was delivered to the plaintiff on the spot, actually
physical possession was not given as the goods of the plaintiff
have been lying in the shop and as per the agreed terms, the
possession of the suit property was to be given to the plaintiff at
the time of presentation of all the five cheques by the defendants
in their bank account.";
(xiv) the cheques were debited from the bank account of the plaintiff
on 9th November, 2015 and 12th November, 2015. The plaintiff on 13th
November, 2015 contacted the defendant no.1 for delivery of
possession but the defendant no.1 avoided delivery of possession on
some pretext or the other; (xv) ultimately legal notice dated 12th
CS(OS) No.553/2016 Page 5 of 19
December, 2015 was got served by the plaintiff and in response
whereto the defendants took a stand that the balance amount of
Rs.4,70,00,000/- had not been paid by the plaintiff to the defendants; it
was not disclosed in the reply, that the sale consideration amount was
reduced to Rs.5,78,00,000/- and a sum of Rs.1,50,00,000/- was
adjusted against cash loan transaction between the husband of the
plaintiff and the defendant no.1; and, (xvi) the plaintiff sent a rejoinder
but possession was not delivered.
3. The suit was filed in the District Court but upon finding the
valuation of the suit to be above the maximum pecuniary jurisdiction
of the Court of the Additional District Judge, the plaint was returned
to the plaintiff and re-filed in this Court.
4. The defendants have contested the suit by filing a joint written
statement inter alia pleading that, (i) though the sale consideration
agreed was Rs.8,50,00,000/- but the Sale Deed relying whereon the
suit had been filed was under valued at Rs.1,50,00,000/- and is liable
to be impounded and inadmissible in evidence; (ii) the plaintiff, out of
the agreed sale consideration of Rs.8,50,00,000/-, has paid only a sum
of Rs.1,50,00,000/- by five cheques of Rs.30,00,000/- each and
Rs.2,30,00,000/- in cash, leaving a balance of Rs.4,70,00,000/-
towards sale consideration and which has not been paid; the plaintiff
has thus not acquired any right in the property; (iii) in the notice
preceding the suit got sent by the plaintiff, the plaintiff had
categorically stated that portion ad-measuring 62 sq. yds. of the
property was offered to be sold and the case set up in the plaint, of
CS(OS) No.553/2016 Page 6 of 19
entire 91.50 sq. yds. being offered to be sold is contrary to the case in
the legal notice preceding the suit; (iv) Sant Raj Gupta, being the
predecessor of the defendants, in his lifetime, on 5th December, 2002
had sold a portion ad-measuring 30-31 sq. yds. out of his 91.50 sq.
yds. portion of the property and the purchasers were in possession
thereof; upon sale of the said portion, Sant Raj Gupta was left with an
area of 62 sq. yds. and the defendants, on demise of Sant Raj Gupta,
inherited the said 62 sq. yds. portion only of the property; (v) no cash
loans were given by the husband of the plaintiff to the defendant no.1
and no amount least more than Rs.3,80,00,000/- crores, was due from
the defendant no.1 to the plaintiff and no acknowledgement of any
such liability was ever made by the defendant no.1 to the husband of
the plaintiff; (vi) the defendants had offered to sell only the portion ad-
measuring 62 sq. yds. of the property, of which they were the owner,
to the plaintiff and the plaintiff, after perusing all title documents in
favour of the defendants, had agreed to purchase the same for a total
sale consideration of Rs.8,50,00,000/- cores; (vii) there is no two room
set on the first and second floors of the said portion; (viii) the receipt
dated 22nd September, 2015 filed by the plaintiff herself before this
Court, is with respect to receipt of Rs.2,30,00,000/- in cash and
Rs.1,50,00,000/- in cheque and also mentions the balance remaining
of Rs.4,70,00,000/-; (ix) the plaintiff, on 26th September, 2015
purchased stamp paper for the Sale Deed according to Circle Rate of
the portion ad-measuring 62 sq. yds. only; however in the plaint it is
pleaded that the plaintiff discovered the area to be 62 sq. yds. instead
of 91.50 sq. yds., only on 23rd September, 2015, showing that the
CS(OS) No.553/2016 Page 7 of 19
plaintiff, even prior thereto was aware that the area of the property
was 62 sq. yds. and not 91.50 sq. yds.; (x) the sale consideration was
never reduced from Rs.8,50,00,000/- to Rs.5,78,00,000/-; (xi)
possession of the property sold was not given, because the sale was
not complete just on execution of the Sale Deed and sale transaction
was to be completed only on payment of the entire agreed sale
consideration of Rs.8,50,00,000/-; (xii) though the plaintiff on the date
of execution of the Sale Deed i.e. 24th September, 2015 had issued five
cheques of Rs.30,00,000/- each but there were no money in the
account of the plaintiff on which the cheques were issued, to honour
the said cheques, and the plaintiff made arrangement of money in her
bank account only in second week of November, 2015 and whereafter
asked the defendants to present the cheques; (xiii) the plaintiff, as per
her own averments, has paid a sum of Rs.3,80,00,000/- only out of
Rs.8,50,00,000/- and having not fulfilled her part of the contract of
sale, is not entitled to possession; (xiv) as per own averments of the
plaintiff, possession was not delivered to the plaintiff and as such the
clause in the Sale Deed, of delivery of possession is of no avail; and,
(xv) possession was to be handed over to the plaintiff only on payment
of entire agreed sale consideration and which has not been paid.
5. The defendants, on the same averments, have filed the Counter
Claim for recovery of Rs.4,70,00,000/- with interest at 12% per
annum with effect from 24th September, 2015 till institution of the suit
i.e. for a total sum of Rs.5,45,20,000/-.
CS(OS) No.553/2016 Page 8 of 19
6. Need to refer to the replication in the suit or to the written
statement and replication in the Counter Claim is not felt.
7. The counsel for the plaintiff, in her arguments, has drawn
attention to the clauses of the Sale Deed dated 24th September, 2015,
where the defendants are described as "VENDOR(S)" and the plaintiff
is described as "VENDEE(S)", as under:
"AND WHEREAS the VENDOR(S) for his/her/their bonafide
legal needs and requirements and in the best interest has agreed
to sell convey transfer all his/her/their rights, titles, interests in
respect of Free Hold built up Property Bearing No. J-108-A,
Portion of Property Bearing No. J-108, Area measuring 62 Sq.
Yards, consisting of One Shop on Ground Floor, two room set on
First Floor and, Second Floor, situated in the area of Village
Bassai Darapur and the Colony Known as Rajouri Garden, New
Delhi, along with ownership rights in the underneath land, with
all rights, title fitting & fixtures, with separate electricity and
water meter/connection & sewer connection in running
condition, (hearinafter called the said property) conveyed to the
VENDEE(S) and the VENDEE(S) has agreed to purchase the
same for a total sale price RS.1,50,00,000/- (Rs. One Crore Fifty
Lakh only) on the following terms and conditions of this SALE
DEED.
2. That the said VENDOR(S) do hereby absolutely assign,
sell, convey and transfer all his/her/their rights of the ownership,
title and interest in the said immovable property under sale,
together with all ways, paths, passages, rights, benefits,
easements, options, privileges and appurtenances thereto to the
said VENDEE(S) who shall hereinafter become the absolute
owner of the said immovable property and shall enjoy all the
absolute and exclusive rights of ownership, title and interest of
the said property without any interruption, disturbance and
demand whatsoever from the VENDOR(S) or his/her/their heirs,
successors, administrators, survivors and assignees etc.
CS(OS) No.553/2016 Page 9 of 19
3. That the VENDOR(S), his/her/their legal heirs,
successors, survivors and assignees shall have no claim, title and
interest in the said property and the VENDEE(S) shall
hereinafter hold, use, enjoy or sell as he/she/they like/s or
construct the same or make some additions and alteration in the
aforesaid property as his/her/their own personal property
without any hinderance, interruption, claim or demand
whatsoever from the VENDOR(S) or anyone of the heirs,
successors, survivors, administrators and assignees etc. of the
VENDOR(S).
4. That the VENDEE(S) is/are fully entitled and authorized
to get the aforesaid immovable property
mutated/transferred/substituted in his/her/their own name/s in the
relevant records of Municipal Corporation of Delhi or any other
appropriate Govt./Local authorities concerned by presenting this
SALE DEED or its certified true copy in the office of the
appropriate authorities concerned.
11. That all the dues, demands, taxes, charges, duties,
liabilities and out goings if any, relating to the above mentioned
property payable to the MUNICIPAL CORPORATION OF
DELHI, B.S.E.S. RAJDHANI/NDPL/TPDDL and Delhi Jal
Board in the form of House Tax Bills, Electric Consumption Bills
and water Consumption Bills or any other Bills or charges shall
be paid by the VENDOR(S) up to the date of handing over the
peaceful vacant physical possession of the said property to
VENDEE(S) and thereafter the same shall be paid by the
VENDEE(S).
13. That no amount whatsoever now remains due from the
VENDEE(S) to the VENDOR(S) and he/she/they (THE
VENDOR(S) has/have received the full and final consideration of
the said Property from the VENDEE(S) and the VENDOR(S)
has/have hereinafter no interest left in the said property hereby
conveyed.
14. That the actual, physical and exclusive possession of the
said property has/have been delivered to the VENDEE(S) on the
spot and the VENDEE(S) as such has taken the possession
thereof and the VENDEE(S)is fully entitled to use and utilize the
CS(OS) No.553/2016 Page 10 of 19
said property in any manner whatsoever he/she/they may likes
and to transfer the same to any person and to hand over the
possession of the same and/or to part with its possession in any
manner he/she/they may likes."
and has relied on Karan Madaan Vs. Nageshwar Pandey 209 (2014)
DLT 241 and my judgment Shashi Garg Vs. Shitiz Metals Ltd. 2014
SCC OnLine Del 2730.
8. Per contra, the counsel for the defendants has contended that the
defendants have no quarrel with the proposition of law laid down in
Karan Madaan and Shashi Garg supra and has rather drawn attention
to my judgment in Om Prakash Vs. IOCL Officers Welfare Society
2019 SCC OnLine Del 6719 on the same lines. It is however his
contention that in view of the admissions of the plaintiff in the plaint,
of
(i) the Agreement to Sell being for a total sale consideration of
Rs.8,50,00,000/-; and,
(ii) the parties having agreed to delivery of possession at the time of
payment of the entire sale consideration,
notwithstanding anything to the contrary contained in the registered
Sale Deed, Section 92 of the Evidence Act, 1872, on the basis whereof
the judgments aforesaid have been pronounced, would have no
application. Attention is invited to Section 58 of the Evidence Act as
under:
"58. Facts
admitted need not be proved. --No fact need to be
proved in any proceeding which the parties thereto or their agents
agree to admit at the hearing, or which, before the hearing, they
agree to admit by any writing under their hands, or which by any
rule of pleading in force at the time they are deemed to have
admitted by their pleadings:
Provided that the Court may, in its discretion, require the
facts admitted to be proved otherwise than by such admission."
and it is contended that in view of admissions aforesaid of the plaintiff
in the plaint, there is no need for the defendants to prove any such
agreement of delivery of possession to the plaintiff only upon receipt
of entire sale consideration and evidence in support of which would
have been prohibited by Section 92 of the Evidence Act. Reliance is
placed on G.P. Mallappa Vs. Matum Nagu Chetty AIR 1919 Mad
833 (FB) laying down as under:
"A subsequent agreement to take less than is due under a
registered mortgage is clearly an agreement modifying the
terms of a written contract; and if it has to be proved, oral
evidence is inadmissible under the fourth proviso to Section
92 of the Indian Evidence Act, which is designed to protect
parties to registered instruments from false cases of subsequent
modification of the original contract being set up and
supported by oral evidence. If the subsequent agreement in
this case has to be proved, oral evidence is clearly
inadmissible. The contention, however, is that it has not to be
proved, as it is admitted in the pleadings. Part II of the
Evidence Act deals with proof, and Chapter III, which is the
first chapter of Part II, with "facts which need not be proved."
Under Section 58 of this chapter, among the facts which need
not be proved, are facts admitted in the pleadings, such as the
subsequent agreement now in question. Evidence is tendered
in proof of facts in issue; and no question of the admissibility
of evidence, oral or documentary, arises when proof is
dispensed with in consequence of an admission in the
pleadings, either under Section 58 or under the provisions of
the Code of Civil Procedure."
It is contended that the aforesaid dicta was followed by a Division
Bench of the High Court of Jammu & Kashmir in Mushtaq Ahmad
Mashki Vs. Mohd. Shafi Bhat AIR 1983 J&K 44, also holding that
owing to admission, no evidence was required to be led by the
defendants in that case, to give an occasion to Section 92 of the
Evidence Act to come in their way.
9. The counsel for the defendants has also drawn attention to the
order dated 6th October, 2016 of the Collector of Stamps on a
complaint made by the defendant No.1 of under-valuation in the
matter of the aforesaid Sale Deed and which order records, that the
plaintiff had admitted that the actual consideration price of the
property was Rs.5,78,00,000/- and agreed to pay the deficit stamp
duty. It is argued, that once the plaintiff herself has admitted the sale
consideration to be Rs.5,78,00,000/- instead of Rs.1,50,00,000/- as
mentioned in the registered Sale Deed, on the basis whereof decree on
admissions is claimed, it is quite evident that even the said
consideration of Rs.5,78,00,000/- has not been paid by the plaintiff. It
is argued that the plea of the plaintiff, of monies being due from the
defendant no.1 to the husband of the plaintiff and being adjusted
towards sale consideration, are still to be proved. It is yet further
argued that it is also to be proved by the plaintiff that the sale
consideration stood reduced, from that agreed on Rs.8,50,00,000/- as
also admitted in the plaint itself, to Rs.5,78,00,000/-.
10. The counsel for the defendant alternatively has contended that
the third proviso to Section 92 of the Evidence Act which permits
proof of existence of any separate oral agreement constituting a
condition precedent to the attaching of any obligation under any such
contract, grant or disposition of property, is also attracted to the facts
of the present case especially when the plaintiff herself in the plaint
has admitted oral agreement, of delivery of possession only on
payment of entire sale consideration, notwithstanding the registered
Sale Deed recording delivery of possession.
11. Attention is also drawn to the notice got issued by the plaintiff
preceding the institution of the suit, where the plaintiff did not claim
initial agreement to be with respect to 91.50 sq. yds. and modification
thereof to that for 62 sq. yds.
12. The counsel for the plaintiff, in rejoinder has contended that the
defendants have denied the receipt recording the total sale
consideration as Rs.8,50,00,000/- and now cannot rely on the said
receipt.
13. I have considered the rival contentions.
14. In Karan Madaan, Shashi Garg and Om Prakash supra, decree
under Order XII Rule 6 of the CPC was passed and / or plaint rejected
holding that evidence of oral agreement, to adduce which trial was
sought, being inadmissible in evidence, there was no need to put such
claim or defence which was contrary to or in variance of or adding to
or subtracting from its terms, contrary to the terms of any contract
grant or other disposition of property reduced to the form of
document. In none of the said judgments, the Court was faced with a
situation as in the present case, of the party seeking judgment on
admissions, itself in its pleadings admitting a contract contrary of the
written document. The counsel for the defendant to the said extent is
right in contending that the judgments supra would not apply.
15. Section 92 of the Evidence Act provides when the terms of any
contract, grant or other disposition of property or any matter required
by law to be reduced to the form of a document, have been proved
according to Section 91 by proving the said document, no evidence of
any oral agreement or statement shall be admitted, as between the
parties to any such instrument or their representatives, for the purpose
of contradicting, varying, adding to or subtracting from its terms.
16. Owing to the bar contained in the aforesaid Section, the
defendants are barred from leading any evidence to prove that (i) the
sale consideration agreed was of Rs.8,50,00,000/- and which evidence
would contradict the registered Sale Deed showing the sale
consideration to be of Rs.1,50,00,000/-; and, (ii) the possession of the
property sold was to be delivered against the payment of the entire
sale consideration and which evidence would contradict the registered
sale deed recording that the possession of the property sold had been
delivered.
17. However there is no need for the defendants/Counter Claimants
to lead aforesaid evidence because of the plaintiff herself in the plaint
having admitted the aforesaid two facts. The bar of Section 92 is only
to admissibility of evidence contradicting, varying, adding to, or
subtracting from, the terms of the written document and once the said
evidence is not to be led, the question of applicability of Section 92
and/or of the bar thereof, would not arise.
18. The Indian Evidence Act has been enacted to consolidate,
define and amend the law of evidence only and Section 92 thereof lays
down rule of admissibility/inadmissibility of evidence in proof of facts
and else does not govern the substantive rights of the parties. Thus,
once it is found that for determination of substantive rights Section 92
is not applicable, the judgments cited by the counsel for the plaintiff
become inapplicable.
19. In the present case, the plaintiff has admitted the consideration
to be other than that mentioned in the registered sale deed, not only in
the plaint but also in the proceedings before the Collector of Stamps
and in fact paid the excess stamp duty. However while according to
the plaintiff the sale consideration, instead of as mentioned in the sale
deed of 1,50,00,000/-, was of Rs.5,78,00,000/-, according to the
defendants/Counter Claimants, it was of Rs.8,50,00,000/-. The said
question cannot be decided without evidence and the question of the
plaintiff being entitled to a decree on admissions under Order XII Rule
6 of the CPC does not arise.
20. I may in this context also record that though in the order
aforesaid of the Collector of Stamps it is mentioned that the
defendants/Counter Claimants also had complained that the sale
consideration was Rs.5.78 crores and which admission would have
bound the defendants/Counter Claimants but the counsel for the
defendants/Counter Claimants states that the said recording is
incorrect and the counsel for the defendants/Counter Claimants has in
Court produced a copy of the complaint filed by the
defendants/Counter Claimants before the Collector of Stamps and in
which the defendants/Counter Claimants have claimed the sale
consideration to be Rs.8.50 crores. Thus the said recording in the order
dated 6th October, 2016 of the Collector of Stamps appears to be
erroneous.
21. Even the aforesaid difference in sale consideration would not
have come in the way of the plaintiff getting possession in pursuance
to the term in the registered sale deed of possession having been
delivered, but the plaintiff in the plaint has herself admitted that
though the sale deed so recorded but the agreement of the parties was
that possession would be delivered only on payment of entire sale
consideration. Thus, till it is proved whether the sale consideration
was Rs.8.50 crores as pleaded by the defendants/Counter Claimants or
Rs.5.78 crores as pleaded by the plaintiff and whether the same has
been paid or not, the question of the plaintiff, as per her own
admissions, being entitled to possession does not arise.
22. Having analyzed Section 92 and having found the bar therein to
be only to prove and which evidence the defendants are not required to
lead in view of admissions of the plaintiff, I have no reason to take a
different view from that taken by the Full Bench of the High Court of
Madras and followed by the Division Bench of the High Court of
Kashmir.
23. I also find Supreme Court in Nagindas Ramdas Vs. Dalpatram
Ichharam (1974) 1 SCC 242 to have held that admissions in pleadings
or judicial admissions, admissible under Section 58 of the Evidence
Act, made by the parties or their agents, at or before the hearing of the
case, stand on a higher footing than evidentiary admissions; the former
class of admissions are fully binding on the party that makes them
and constitute a waiver of proof - they by themselves can be made the
foundation of rights of the parties; on the other hand evidentiary
admissions which are receivable at trial as evidence, are by themselves
not conclusive - they can be shown to be wrong. Again, in Avtar
Singh Vs. Gurdial Singh (2006) 12 SCC 552 it was held that Section
58 postulates that things admitted, need not be proved. Mention may
also be made of Gautam Sarup Vs. Leela Jetly (2008) 7 SCC 85,
holding that an admission made in pleadings is not to be treated in the
same manner as an admission in a document; and admission made by
a party to a lis is admissible against him proprio vigore.
24. I deem it my duty to observe that though it was not necessary
for the plaintiff to, for the relief of recovery of possession, plead as
aforesaid, but the plaintiff is found to have nevertheless so pleaded
and is a victim of her own non-essential verbosity. This is a classic
textbook case of, how not to draft a plaint, which should be taught in
law colleges and to young lawyers so that such bloopers in drafting of
pleadings, damaging to one‟s own client, are avoided.
25. The plaintiff is thus not found entitled to a decree for possession
on admissions. The application of the plaintiff is dismissed.
RAJIV SAHAI ENDLAW, J.
MAY 21, 2019
„gsr‟/pp..
(corrected and released on 23rd July, 2019)
