Delhi District Court
Subhash Chandra Soni vs Afroj Begum And Ors on 29 March, 2025
IN THE COURT OF SH. DEEPANKER MOHAN: DISTRICT
JUDGE-04, SHAHDARA DISTRICT, KARKARDOOMA
COURTS, DELHI
CS No. 2260/16
IN RE:
Sh. Subhash Chandra Soni
S/o Sh. S.N. Soni
R/o F-12/10, Model Town,
Delhi-110009 .... Plaintiff
VERSUS
1. Afroz Begum
W/o Mohammad Aslam
2. Mohammad Aslam
S/o Mohammad Aslam
Both Resident of:-
G-49/Z-2-1, Dilshad Garden, Delhi.
3. Sh. Ashok Kumar Upadhyay
S/o Sh. B.B. Upadhyay
R/o S-1-III, Abhay Suraksha-I,
Udyan-2, Eldico Rai Bareilly Road,
Lucknow, U.P. .... Defendants
1. CS No. : 2260/16
2. Under Section : Suit for recovery of
possession, declaration,
damages & permanent
injunction.
3. Date of institution : 04/09/2010
4. Reserved for judgment : 09/01/2025
Digitally signed by
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MOHAN
DEEPANKER MOHAN
Date: 2025.03.29
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5. Date of Judgment : 29/03/2025
JUDGMENT
1. Vide this judgment, this Court shall dispose of the suit for
recovery of possession, declaration, damages & permanent
injunction filed by plaintiff against defendants on 04/09/2010.
AVERMENTS OF THE PLAINT
2. The plaintiff has filed the present suit against defendants
claiming the relief of possession of the property bearing No.C-
49/Z-2-1, Pocket-C, Dilshad Garden, Delhi, relief of declaration
thereby declaring the GPA, SPA, Will and receipt etc. all dated
22.12.1998 are not executed by defendant no.3, being the result
of forgery and the same are null and void, relief of permanent
injunction and recovery of damages to the tune of Rs.3,60,000/-
with future damages from the date of institution of suit till its
realization.
3. Plaintiff had purchased the suit property from defendant
no.3 vide registered sale deed dated 05.06.2009 for a valid sale
consideration of Rs.7 lakhs and after its purchase, plaintiff
became the absolute owner of the suit property. The suit property
was allotted to defendant no.3 by Delhi Development Authority
vide allotment no.22(2063) 85 on 22.08.1986 and a physical
possession was also handed over to him. During the course of
time, defendant no.3 got the property converted into freehold
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vide conveyance deed dated 13.04.2007 after paying of necessary
charges.
4. Plaintiff pleads that upto December, 2002, brother of the
defendant no.3 was residing in the suit property along with his
wife and thereafter, defendant no.3 is unaware about the
whereabouts of his brother or his any other family members. In
the year 2003, defendant no.3 came to Delhi after his retirement
and went to his flat where he was shocked to see that defendants
no.1 and 2 are in possession of the suit property. Upon inquiry
and disclosing that defendant no.3 was the owner of the suit
property, defendants no.1 and 2 apologized and asked some time
to vacate the suit property, however, thereafter defendants no.1
and 2 continued to avoid handing over possession of the suit
property to defendant no.3 on one pretext or the other.
5. Defendant no.3 being an old and ailing person residing at
Lucknow, is not is position to come to Delhi time and again and
therefore, in the year 2007 when defendant no.3 came to Delhi
for getting the property converted into freehold, in due course of
time, he met with the plaintiff. It is also pleaded that under the
instructions from defendant no.3, plaintiff made inquiry from
DDA and was surprised to know that some other persons
impersonating himself as defendant no.3 had applied to DDA for
duplicate copies of allotment documents representing that he has
lost the originals while travelling.
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6. Defendant no.3 had also executed a special power of
attorney in favour of plaintiff thereby authorizing him to take
appropriate action against defendants no.1 and 2. It is also
pleaded that on the strength of power of attorney, plaintiff
number of times, met defendants no.1 and 2 and requested them
to vacate and hand over the possession of the suit property. The
defendants no.1 and 2 represented himself that they had
purchased the property from one property dealer namely Arun
Mishra. The electricity and water connection installed in the suit
property was in the name of defendant no.3 and when defendants
no.1 and 2 refused to vacate the suit property, plaintiff being the
attorney of defendant no.3 applied for disconnections of the
electricity and water connections provided/ supplied in the
premises and the same was disconnected permanently.
7. Thereafter, defendant no.1 and 2 applied to those
authorities for electricity and water connections thereby
submitting their own forged and fabricated documents i.e. GPA,
SPA, Will and receipt all dated 22.12.1998, represented to be
signed by defendant no.3 and at this stage, plaintiff came to know
about the aforesaid documents. Defendant no.3 had refused to
acknowledge the said documents and confirmed to the plaintiff
that he has not sold the suit property to anyone including the
defendants no.1 and 2 and that the said documents are fabricated
and forged and the same do not bear the signatures of the
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defendant no.3. It is also pleaded that during the investigation of
police, it has come that the signatures of the defendant no.3 on
the afore-said documents are forged and fabricated.
8. Defendants no.1 and 2 are occupying the premises
unauthorizedly and illegally without any lawful right and they
have no right to continue in the suit property. Defendants no.1
and 2 are the trespassers and occupied the suit property by
breaking open the locks somewhere in 2003 and also committed
theft by taking away the valuable articles of the house which
were lying there. The aforesaid documents i.e. GPA, SPA, Will
and receipt all dated 22.12.1998 on the basis of which defendants
no.1 and 2 are claiming rights over the suit property, are forged
and fabricated and have no value in the eyes of law and they are
liable to be declared as null and void. Defendants no.1 and 2
have no right to continue in possession and they are bound to
vacate and hand over the possession of the suit property to
plaintiff, being the rightful and lawful owner vide sale deed dated
05.06.2009. Defendant no. 1 and 2 are also liable to pay mesne
profit/ occupation charges/ damages to plaintiff as they have
occupied the suit property illegally, unauthorizedly and without
any right. Hence, the present suit.
SERVICE OF SUMMONS
9. Summons of the present suit were issued upon defendants
vide order dated 13/09/2010. The summons were duly served
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upon defendant Nos. 1 to 3 and subsequently, Defendant No. 1
and 2 filed a joint written statement on 18/11/2010 and defendant
no. 3 filed his written statement on 13/07/2011.
AVERMENTS OF THE WRITTEN STATEMENT FILED BY
DEFENDANTS NO.1 AND 2
10. The defendant No. 1 and 2 have specifically denied the
contents of plaint and claim of the plaintiff and further pleaded
that the present suit is liable to be dismissed on the ground that
defendant no.3 is not the same Ashok Kumar Upadhayay, who
was the owner of the suit property and he is Arun Kumar
Upadhaya, brother of Ashok Kumar Upadhaya. The defendants
no.1 and 2 had purchased the suit property from Sh. Ashok
Kumar Upadhayay. There were two brothers namely Ashok
Kumar Upadhayay and Arun Kumar Upadhayay. The property in
question was allotted in the name of Ashok Kumar Upadhayay
who started living in the suit property and later on 22/12/1998
sold out the same to defendants no.1 and 2. In the year 2008, the
brother of Ashok Kumar Upadhayay namely Arun Kumar
Upadhayay, who has been array as defendant no. 3 under the
name of Sh. Ashok Kumar Upadhayay, with active connivance
started claiming himself as Sh. Askok Kumar Upadhayay.
11. The present suit is a collusive suit having been filed by
plaintiff in active connivance of defendant no. 3 and they
deliberately created a sale deed in favour of plaintiff, which
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otherwise has no legal sanctity. The sale deed has been created
with the sole motive to deprive the defendants from their
legitimate, statutory and legal rights accrued in their favour by
operation of law of equity.
12. The present suit is also liable to be dismissed for non-
joinder of necessary party because plaintiff had not made brother
of defendant no.3 namely Sh. Arun Kumar Upadhayay as a party
in the present suit intentionally, deliberately and with ulterior
motives in order to conceal the true facts and circumstances
leading to the selling of the suit property to defendants no.1 and
2.
13. The present suit is not maintainable in view of specific bar
created by law of the estoppel as enshrined under Section 115 of
Indian Evidence Act. The defendant no.3 and his brother namely
Arun Kumar Upadhayay had hatched a criminal conspiracy in
order to commit fraud and in consequence thereto they started to
representing the public at large and thus to making them to
believe that Arun Kumar Upadhayay is none other than Ashok
Kumar Upadhayay and representing so Arun Kumar Upadhayay
started residing and living in the suit property in the capacity of
Ashok Kumar Upadhayay since the time of allotment. He was
regarded and acknowledged by everyone including neighbours
and all government departments that Arun Kumar Upadhayay is
none other than Ashok Kumar Upadhayay. Defendant no.3 also
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used to visit the suit property and always made everyone believe
that Arun Kumar Upadhayay is the owner of the suit property and
is also that he is Arun Kumar Upadhayay and also that defendant
no.3 is the younger brother of Ashok Kumar Upadhayay (actually
Arun Kumar Upadhayay).
14. In the year 1998, Sh. Ashok Kumar Upadhayay (actually
Arun Kumar Upadhayay) started to approach several property
dealers including Balaji Property dealer (situated at A-117,
Dilshad Colony, Delhi) to sell the suit property. In the month of
July 1998, defendants no.1 and 2 through some references to
Balaji Property dealer had visited the suit property in the
presence of brother of defendant no.3 for the purpose of
purchasing the suit property who represented and made
Defendant No. 1 and 2 believed that the name of the seller is Sh.
Ashok Kumar Upadhayay and he is the owner of the suit
property. Since the brother of the defendant no. 3 along-with his
family members was found to be in possession of the suit
property, therefore, there was no occasion for the defendant no. 1
and 2 to have any kind of doubt upon the representation made.
The owners of Balaji Property dealer namely Mahfooz Ali and
Kishan Lal and brother of defendant no.3 had shown all the
documents i.e. allotment letter issued by DDA, certificate of
registration assessment assessed by MCD, demand/allotment
letter, copy of challan, electricity bills and certain other
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documents to defendants no.1 and 2 that defendant no.3 is the
actual owner of the suit property and his name is Ashok Kumar
Upadhayay and since all said documents were containing the
name of Ashok Kumar Upadhayay, therefore, it was made to
believe to defendants no.1 and 2 that the deal is being struck with
genuine person and in respect of the genuine property. The
photograph of the seller, representing to be Ashok Kumar
Upadhayay was also affixed on the sale documents who not only
signed as Ashok Kumar Upadhayay but also appeared before the
concerned Registrar as Ashok Kumar Upadhayay and induced
the Registrar that he is the actual owner and actual Ashok Kumar
Upadhayay. The registered General Power of Attorney, registered
special power of attorney, a registered Will and a receipt of
consideration and affidavits were executed in respect of the suit
property. The defendants no.1 and 2 made inquiries in the
neighbourhood and from a resident welfare association and they
also confirmed that since the date of allotment of the property
brother of defendant no.3 is in possession of the suit property.
Under these circumstances, the defendants no.1 and 2 purchased
the suit property in good faith believing that the seller is Ashok
Kumar Upadhayay and also paid the valuable consideration.
15. At the time of purchasing the suit property, it was agreed
that pending electricity, water and house tax bills shall be paid by
Ashok Kumar Upadhayay. In order to meet out any eventuality of
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by DEEPANKER
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requirement of presence of Ashok Kumar Upadhayay for any
purpose, the said Ashok Kumar Upadhayay provided his address
of Lucknow. After purchasing the suit property, when defendants
no.1 and 2 had shifted into the same on 22/12/1998, they
received an electricity bill within 2-3 days of their shifting,
containing arrears also for an amount of Rs.3,90,670/-.
Defendants no.1 and 2 decided to go to Lucknow in order to get
the money for electricity bill. The defendant no.2 went to
Lucknow where he met with said Ashok Kumar Upadhayay and
defendant no.3, who was represented there as brother of Ashok
Kumar Upadhayay and that his name is Arun Kumar Upadhayay.
Defendant no.2 demanded the said Ashok Kumar Upadhayay, the
brother of defendant no.3, to make payment of electricity bill.
Defendant no.3 and his brother assured the defendant no.2 to
make the payment later on. Defendants no.1 and 2 made several
visits demanding the brother of defendant no.3 to make payment
for such bills being part of the agreement. Defendant no.3 at no
point of time disclosed that he is Ashok Kumar Upadhayay and
not his brother from whom they had purchased the suit property.
The Defendant No. 1 and 2 have cleared the electricity bills in
two installments; paid the water bill amounting to Rs.1,311/- in
the month of May, 1999 and also paid the house tax of Rs. 4200/-
through cheque. The defendant no. 1 and 2 are living peacefully
and without any interruption and enjoying the status of owner of
the suit property, since the date of its purchase.
Digitally signed by
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16. The present suit is liable to be dismissed in terms of the
provisions Section 41 of Transfer of Property Act because the
brother of defendant no. 3 if was not the real Ashok Kumar
Upadhayay and was actually Sh. Arun Kumar Upadhayay then he
being the ostensible owner has sold the suit property to defendant
no. 1 and defendant no. 1 and 2 are protected under Section 41 of
Transfer of Property Act, 1882. It is also pleaded that defendant
no. 1 and 2 have made due inquiries and after ascertaining that
brother of defendant no. 3 is Ashok Kumar Upadhyay and had
power to make the transfer, acted bonafide and paid valuable
consideration on its purchase. It is also pleaded that if defendant
no. 3 is the actual Ashok Kumar Upadhayay then he himself
created and permitted his brother to represent and make to
believe the public at large including defendant no. 1 and 2 that
transferor to the defendant no.1 and 2 was the actual owner of the
suit property and he was holding the good title and as he was also
in possession of the suit property, the representations became
more probable and correct.
17. Defendant No. 1 and 2 denied that plaintiff is the owner of
the suit property or that he had purchased the same from
defendant no.3 or that defendant no.3 is the previous owner of
the suit property or that he was the rightful owner or that he has
become the absolute owner with unfettered right. It is denied that
defendant no.3 was the owner of the suit property or allotment
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was made in his favour. The conversion from leasehold to
freehold itself is illegal and cannot confer any right upon
defendant no.3.
18. It is also pleaded that at the time of purchasing the suit
property, all essential amenities were installed and existed in the
name of Ashok Kumar Upadhayay from whom defendants no.1
and 2 had purchased the property in question. Plaintiff in
connivance with defendant no.3 got the electricity and water
connection disconnected in order to extort money from
defendants no.1 and 2. Defendants no.1 and 2, being owner and
in possession of the suit property, got new water and electricity
connections installed in the suit property in the name of
defendant no.1 and since then they have been regularly paying
the respective bills in respect of usage. The electricity and water
connections were applied by defendants no.1 and 2 on the basis
of genuine documents which were duly executed by
actual/ostensible owner Sh. Ashok Kumar Upadhayay, the
brother of defendant no.3, to whom defendant no.3 now mentions
as Arun Kumar Upadhayay.
19. It is further pleaded that at any point of time, defendants
no.1 and 2 had not stated that the sale documents were executed
to them by defendant no.3 but they always put forward the real
and true facts to that effect that these documents were executed
by brother of defendant no.3 who used to be known and
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acknowledged by everyone as Ashok Kumar Upadhayay and
who was permitted to be so represented even by defendant no.3.
FIR bearing no.111/2008 is illegal, ill motivated and was got
filed by the plaintiff and defendant no.3 just in order to exert
pressure upon defendants no.1 and 2 to succumb their illegal
demands. The suit of plaintiff is liable to be dismissed with cost.
AVERMENTS OF THE WRITTEN STATEMENT FILED ON
BEHALF OF DEFENDANT NO.3
20. The defendant No. 3 has filed his written statement
admitting and supporting the claim of the plaintiff and further
pleaded that he was the previous owner of the suit property and
he had sold the suit property to plaintiff for consideration of Rs.7
lakhs. At present, plaintiff is an absolute owner of the suit
property. It is pleaded that defendant no.3 was the allottee of suit
property and the physical possession of the same was handed
over on 22/08/1986. Defendant no.3 further pleaded that he got
the property converted into freehold.
21. In the absence of defendant no.3, his brother namely Sh.
Arun Kumar Upadhyay was living in the said flat who continued
to live there upto the year 2002. It is admitted that in the year
2002, defendant no.3 had telephonic conversation with his
brother and that his brother lived in the property in dispute upto
December, 2002 and thereafter, his whereabouts are not known to
him till date. It is not in dispute that in the year 2003, defendant
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no.3 came to Delhi after his retirement and went to the flat in
dispute and was shocked to see that defendants no.1 and 2 were
in possession. Upon revealing and disclosing that he is the owner
of property, defendants no.1 and 2 apologized and sought some
time to vacate the property and handing over the possession to
him. It is also not in dispute that in the year 2007, defendant no.3
came to Delhi for conversion of the property into freehold and
during that period he came to touch with plaintiff. Plaintiff came
to know that defendants no.1 and 2 are still in possession of the
suit property.
22. Defendant No.3 further pleaded that he is unable to come
to Delhi on account of ill health and therefore, he had executed a
SPA in favour of plaintiff at Lucknow authorizing him to take
appropriate action against defendants no.1 and 2. He further
admits that on the basis of said SPA, plaintiff met with
defendants no.1 and 2 number of times and requested them to
vacate and hand over the possession of the suit property. He
further pleaded that defendants no.1 and 2 represented
themselves that they had purchased the suit property from one
property dealer namely Arun Mishra. He further admits that
water and electricity connections were disconnected from the
property in dispute.
23. Defendant no. 3 further pleaded that defendants no.1 and 2
have submitted forged and fabricated documents for obtaining
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electricity and water connections from concerned departments
and the said forged documents do not bear his signatures. He
further pleaded that FIR no. 111/2008 was also got registered at
P.S. Dilshad Garden against defendants no.1 and 2.
AVERMENTS OF THE REPLICATION TO THE WS OF
DEFENDANT NO. 1 AND 2
24. Replication to the written statement of defendants no.1 and
2 was filed on behalf of plaintiff on 22/07/2011 wherein plaintiff
has specifically denied the averments of written statement of
defendants no.1 and 2. It is pleaded that defendant no.1 and 2
admits that they have not purchased the suit property from
defendant no.3 who was the real and lawful owner of the suit
property. It is pleaded that Sh. Arun Kumar Upadhyay was
having no right to sell the suit property and therefore, no
right/title has been conferred in favour defendant no.1 and 2. It is
further pleaded that no original documents of the suit property
were in possession of Sh. Arun Kumar Upadhyay, therefore,
handing over the originals to defendant no.1 and 2 does not arise
and same is incorrect. It is further submitted that paying
electricity charges, water charges and house tax or getting meter
installed in the name of defendant no.1 will not confer any
right/title upon defendant no.1 and 2. The plaintiff re-affirmed
and re-iterated the averments of the plaint.
25. Plaintiff has not filed replication to the written statement of
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Defendant No. 3.
STATEMENT RECORDED UNDER ORDER X OF THE
CODE CIVIL PROCEDURE, 1908 AND SECTION 165 OF
INDIAN EVIDENCE ACT
26. The Hon’ble High Court of Delhi has recorded the
statement of defendant no. 2 and 3 on 17/02/2012. The statement
of one Sh. Mafooz Ali was also recorded by the Hon’ble High
Court on 15/05/2012.
FRAMING OF ISSUES
27. Upon completion of pleadings, following issues were
framed in the present case on 07/11/2012 which are as under:-
1. Whether the plaintiff has purchased the
suit property from Sh. Ashok Kumar
Upadhyay for lawful consideration? OPP
2. Whether the whereabouts of Sh. Arjun
Kumar Upadhyay, the brother of defendant
no.3 are not known to the plaintiff? OPP
3. Whether the value of the suit property at
the time of alleged sale on 05/06/2009 was
Rs.7 lakhs only? OPP
4. Whether the sale deed dated 05/06/2009,
is a legally valid document? OPP
5. Whether the plaintiff is entitled for
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possession of the suit property? OPP
6. Whether the plaintiff is entitled for
declaration as prayed for? OPP
7. Whether the plaintiff is entitled for
damages as prayed for and if yes, at what rate
and for what period? OPP
8. Whether the plaintiff is entitled for
permanent injunction? OPP
9. Whether Ashok Kumar Upadhyay had not
sold the suit property to defendant no.1 on
22/12/1998 through his brother representing
himself to be Ashok Kumar Upadhyay? OPD
10. Whether the suit is liable to be dismissed
for non-joinder of Sh. Arun Kumar
Upadhyay, the real brother of Sh. Ashok
Kumar Upadhyay? OPD
11. Whether the suit is barred by law of
estoppel under Section 43 of the Transfer of
Property Act, 1882 and law of ostensible
ownership as contained under Section 41 of
Transfer of Property Act, 1882? OPD
12. Whether the defendant no.1 is the bona
fide purchaser of the suit property and has
been living and occupying the suit property
since the date of purchase as being the actual
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owner of? OPD
13. Relief.
EVIDENCE OF PLAINTIFF
28. Plaintiff to prove his case has examined only two
witnesses i.e. (1) Himself as PW-1 and (2) Sh. Mukti Shankar,
Posted as ASO, in the office of Sub-Registrar IV-A, Shahdara,
Delhi as PW2.
29. PW-1 Sh. Subhash Chandra filed his evidence affidavit on
the same line of the averments of plaint. On 05/05/2014, he
tendered his evidence affidavit as Ex.PW1/A and also relied upon
the documents exhibited as (1) Ex.PW1/1- Original Sale Deed
dated 05/06/2009; (2) Ex.PW-1/2- Original Allotment Letter; (3)
Ex.PW-1/3- Original possession slip; (4) Ex.PW-1/4- Original
Letter dated 23/03/1987 directing Executive Engineer to
handover the possession of the suit flat to Sh. Ashok Kumar
Upadhyay, allottee on 15/04/1987 at 11:00 a.m.; (5) Ex.PW-1/5-
Original Letter dated 23/03/1987; (6) Ex.PW-1/6- Conveyance
deed dated 10/04/2007; (7) Ex.PW-1/7- FIR no.111/2008
registered at PS Dilshad Garden, Delhi for the offence
420/465/467/468/471/447/380 IPC and (8) Ex.PW1/8- Special
Power of Attorney dated 07/03/2008. On 08/09/2014 and
27/05/2015, PW-1 was cross examined at length by Ld. Counsel
for defendants no.1 and 2.
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30. PW-1 deposed that he knew defendant no.3 through his
friend namely Maheshwari since 2006. He deposed that he did
not meet defendant no.3 prior to 2006. He admitted the
suggestion that all the facts narrated in his suit for the events
prior 2006 were not based on his personal knowledge. He
voluntarily deposed that he knew these facts either through
documents or through verbal knowledge. He deposed that he saw
the documents of the suit property through defendant no.3 for the
first time in the year 2006 but he did not recollect the date and
month. He deposed that he had filed all the original documents
issued by DDA of the suit property prior to 2006. He admitted
the suggestion that photo of defendant no.3 was not appended on
Ex.PW1/2 to Ex.PW1/5. He denied the suggestion that the person
who had sold the property to him was actually Mr. Arun Kumar
Upadhaya S/o Sh. B.B. Upadhaya and not defendant no.3. He
deposed that he did not know if defendant no.3 are two brothers
namely Ashok Kumar Upadhaya and Arun Kumar Upadhaya. He
admitted the suggestion that defendant no.3 had told him that his
brother was residing in the suit property. He voluntarily deposed
that he was told that defendant no.3 resided there for about 02
months and thereafter his brother was residing therein. He
deposed that he did not know whether the brother of defendant
no.3 was residing in the suit property representing himself as
Ashok Kumar Upadhaya. He deposed that he did not know if the
neighbour and residents of the locality were identifying the
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brother of defendant no.3 as Ashok Kumar Upadhaya. He
deposed that he did not know whether the brother of defendant
no.3 was an advocate and was having his name plat outside the
suit property as “Ashok Kumar Upadhaya, Advocate (A.K.
Upadhaya, Advocate)”. He admitted the suggestion that on the
alleged document in favour of defendant no.1 the executant has
signed as Ashok Kumar Upadhaya (A.K. Upadhaya). He
deposed that he did not have any documentary proof to show that
defendant no.2 resided in the suit property for a night in 2000. He
also admitted that he did not ask nor defendant no.3 provided any
proof of not knowing the whereabouts of his brother and his
family members. He admitted that he did not ask for any
documentary proof that defendant no.3 resided in the suit
property for a night in 2000 or telephonic conversation with his
brother in 2002. He deposed that he did not ask for any
documentary proof from defendant no.3 of his visit in the year
2003 or that whether he took any action when he was shocked to
see defendant no.1 and 2 in possession of the suit property. He
admitted that defendant no.1 was not his friend prior to 2006. He
deposed that the property was converted into freehold in the 3rd
or 4th month of 2007 but he did not remember the exact date and
month. He denied the suggestion that defendant no.3 and he did
not take any steps against defendant no.1 and 2 till the
conversation of the property to freehold. He admitted that no
such complaint against defendants no.1 and 2 is on record. He
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voluntarily deposed that he could produce the same. He deposed
that he did not know whether defendant no.3 and his brother
initially sold the suit property to defendant no.1 and thereafter
sold the same to him. He denied the suggestion that the sale deed
Ex.PW1/1 has been executed in his favour by brothers of
defendant no.3 representing himself as Ashok Kumar Upadhaya.
31. PW-1 admitted the suggestion that there was no document
on record filed by him to establish the identity of defendant no.3.
He voluntarily deposed that the copies of these documents like
passport, official I-Card are with him and he can file the same.
He denied that the value of the suit property was around Rs. 30
Lacs in 2009. He voluntarily deposed that it was around 7-8 lacs.
He deposed that he came to know in 3 rd or 4th month of 2008 that
defendant no.1 claimed that she was residing in the property as
an owner. He deposed that he obtained the certified copy of the
documents in favour of defendant no.1 through his counsel after
about one month of coming to know about the alleged ownership
of defendant no.1. He deposed that he had not filed that certified
copy or the receipt for applying the certified copy. PW-1 deposed
that he immediately made enquiries from defendant no.3 after
obtaining the certified copies of the documents in favour of
defendant no.1 and asked about the person whose photograph
and signatures are affixed/put on the said documents. He further
deposed that defendant no. 3 stated that the signatures are forged
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and the photograph is not legible. He further deposed that he did
not ask/ enquire from defendant no.3 that the documents might
not be executed by his brother because he has already seen the
identity of defendant no.3 in documents i.e. passport, bank
statement, election I Card, official documents.
32. PW-1 further deposed that he has been to Lucknow twice
or thrice. He denied that defendant no. 3 and his brother are
residing in the same house at Lucknow. He deposed that he met
defendant no.3, his wife and his son Rajiv Upadhaya at their
residence at Lucknow on both of his visits. He admitted the
suggestion that in the sale deed Ex.PW1/1 address of defendant
no.3 and Sh. Rajiv Upadhaya are different addresses. He
voluntarily deposed that it is because the identity proof of both of
them were of different addresses.
33. On 27/05/2015 PW-1 deposed that he did not know as to
for which official work, defendant no.3 allegedly came to Delhi
in 2000 as referred in para no.4 of his evidence affidavit. He
voluntarily deposed that he did not know him in 2000. He
deposed that he had mentioned this fact as told to him by
defendant no.3 in 2006 or 2007. He deposed that he did not know
defendant no.3 even in 2002. He deposed that the contents of
para no.5 of his affidavit are based on the facts told to him by
defendant no.3 later on. He deposed that defendant no.3 told him
that his brother Arun Kumar Upadhyay was residing in the
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property in 2006 or 2007. He deposed that the FIR Ex.PW1/7
was lodged by him. He admitted the suggestion that in this FIR,
he had not mentioned anything about Arun Kumar Upadhyay. He
voluntarily deposed that he did not know anything about him. He
deposed that this FIR was lodged by him on behalf of Ashok
Kumar Upadhyay being his attorney. He denied the suggestion
that he did not mention about Arun Kumar Upadhyay in this FIR
since there was a criminal conspiracy between him, defendant
no.3 and Arun Kumar Upadhyay to snatch this property from
defendant no.1 and 2. He deposed that there was no money
transaction at the time of execution of Ex.PW1/8. He denied the
suggestion that Ex.PW1/1 was also false and fabricated
document. He denied the suggestion that Ex.PW1/1 is silent in
respect of defendants no.1 and 2 and Arun Kumar Upadhyay
since this document was also a part of their conspiracy. He
denied the suggestion that he never paid the sale consideration
mentioned in Ex.PW1/1. He deposed that as far as he recollected
the two witnesses of Ex.PW1/1 are Sh. Rajiv son of defendant
no.3 and the other witness may be Surender Chaudhary or
Mukesh Sharma. He deposed that the sale deed was registered at
the office of Sub-Registrar in Yamuna paar area. He denied the
suggestion that he had wrongly mentioned in para no.3 of the
sale deed that the property is free from all encumbrances. He
denied the suggestion that it was their responsibility to mention
in the sale deed that defendants no.1 and 2 are in possession of
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property and the property is in litigation. He denied the
suggestion that these facts were conceal since this document was
created as part of conspiracy to file this case. He deposed that he
had shown in his ITR that he had purchased this property. He
deposed that he could produce his ITR. He denied the suggestion
that he had not mentioned the same in his ITR and that is why,
the same had not been placed on record. He denied the
suggestion that defendant no.3 was never unwell and that is why,
same was not mentioned in the SPA nor there was any document
on record to show his illness. He denied the suggestion that he is
in the business of property dealing and deal in disputed
properties. He deposed that the fact mentioned in para no.10 of
his affidavit were based on the information supplied by defendant
no.3 and as such he did not have any document for the same. He
denied the suggestion that the alleged information is concocted
story and is false.
34. In the month of April-May, 2008, he came to know that
defendant no.1 & 2 were residing in the property and were
claiming ownership, when he got the electricity and water supply
disconnected. He denied the suggestion that disconnection of
electricity and water supply was a part of conspiracy. He deposed
that he did not know if defendant no.1 paid the arrear of
electricity charges of Rs.39,678/- in 1998 when he came in the
possession of property after purchasing the property. He deposed
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that he did not know if defendant no.1 was paying the house tax,
electricity and water bill since then. He denied the suggestion
that defendant no.1 had purchased the suit property for valuable
consideration which was sold to him by defendant no.3 and Arun
Kumar Upadhyay by impersonation. He denied the suggestion
that the documents of defendant no.1 & 2 were genuine
documents. He denied the suggestion that his documents were
sham. He denied the suggestion that since the property was
validly sold to defendant no.1 & 2 that is why, defendant no. 3 as
claimed by him, never filed any suit or lodged any complaint
against defendant no.1 & 2 and that is why, Arun Kumar
Upadhayay was made party to this suit. He denied the suggestion
that he had never asked defendant no.1 & 2 to vacate the property
or that they were residing in the property as unauthorized
occupants and such he had not filed any document in this regard.
He deposed that he did not remember the dates when he allegedly
asked defendant no.1 & 2 to vacate the property. He denied the
suggestion that since no such demand was made that is why, he
did not remember the said dates. PW-1 was not cross examined
by defendant no.3.
35. On 25/10/2023 PW-2 Sh. Mukti Shankar, Posted as ASO,
in the office of Sub-Registrar IV-A, Shahdara, Delhi, who was
the summoned witness. He had brought the summoned record i.e.
sale deed executed by Sh. Ashok Kumar Upadhyay S/o Sh. B.B.
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Upadhyay in favour of Sh. S.C. Soni S/o Sh. S.N. Soni in respect
of the property C-49/Z-2, Dilshad Garden, Delhi and after
comparing the record with the original sale deed dated
05/06/2009, he deposed that the sale deed already exhibited as
Ex.PW-1/1 had been registered in his office of Sub-registrar-IVA,
Shahdara, Delhi having registration No.1166 in additional Book
No.1 Volume No.606 on page 183 to 189 dated 05.06.2009. He
had also brought the certified copy of the said sale deed which
was Ex.PW-2/A (OSR). He was cross examined by Ld. Counsel
for defendants no.1 and 2. PW-2 deposed that he had no personal
knowledge about this sale deed. He identity card issued by D.M.
Shahdara, Delhi was also taken on record during cross-
examination and was exhibited as Ex.PW2/X1(OSR), however,
inadvertently the marking was not made on the copy of identity
card.
36. On 25/10/2023, PE was closed.
EVIDENCE LED BY DEFENDANTS NO.1 AND 2
37. The Defendants no.1 and 2 to defend their case have
examined 8 (eight) witnesses i.e. (1) Mohammad Aslam,
Defendant no. 2 as DW-1, (2) Sh. Bhura as DW-2, (3) Sh. Navin
Kumar Sharma, Senior Section Supervisor, MTNL, Dilshad
Garden Telephone Exchange, Delhi as DW-3, (4) Sh. B.S. Yadav,
Assistant Personal Officer, BSES YPL, Division G.T. Raod,
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Dilshad Garden, Delhi as DW-4, (5) Sh. Satish Kumar Sharma,
Senior Assistant Zonal Revenue Office, Delhi Jal Board, G.T.
Road, Shahdara, Delhi as DW-5, (6) Sh. Gopal Dutt, Record
Keeper, Sub-Registrar Court-IV, Seelampur, Delhi as DW-6, (7)
Mr. Salim Ahmad, S/o Abdul Aziz, R/o G-183, Dilshad Colony,
Delhi as DW-7 and (8) Sh. Om Prakash, Posted as Section
Officer, Posted at Property Tax Department Shahdara North,
Near Shyam Lal College, Delhi-110032 as DW-8.
38. DW-1 Mohammad Aslam filed his evidence affidavit on
26/10/2018 and on 18/12/2018, he tendered his evidence affidavit
as Ex.DW1/A and also relied on following documents i.e. (1)
Mark A (colly., from page 3 to 38) (mentioned as Ex.DW1/1
colly, and the same is de-exhibited being photocopy)- Copy of
sale documents executed by Sh Ashok Kumar Upadhyay in
favour of defendant no.1, (2) Ex.DW1/2- Original house tax
receipt, (3) Ex.DW1/3- Receipt issued by property department
dated 15.02.1999, (4) Ex.DW1/4- Original house tax receipt
bearing no.647017, (5) Ex.DW1/5- Original allotment bearing
no.22(2063), (6) Ex.DW1/6- Original letter dated 01.12.1988, (7)
Ex.DW1/7- Original letter dated 15.12.1978, (8) Mark B
(mentioned as Ex.DW1/8 and the same is de-exhibited being
photocopy)- Copy of allotment letter dated 22.08.1986, (9)
Ex.DW1/9- Original challan bearing no. 0085802, (10)
Ex.DW1/10(Colly.)- Original electricity bills, (11) Ex.DW1/11-
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Original notice dated 05.12.2009 for sub installation of
functional water meter, (12) Ex.DW1/12- Original warning letter
dated 18.12.98, (13) Ex.DW1/13- Original receipts, (14)
Ex.DW1/14(Colly.)- Original water bills, (15) Ex.DW1/15
(Colly.)- Original property tax, (16) Ex.DW1/16- Original
application for grant of permission letter u/s 27 (2) along-with
annexure -I, II, form VIII, (17) Mark C (mentioned as Ex DW
1/17 colly, and the same is de- exhibited being photocopy)-
Carbon copy of fard mankudasi, (18) Mark D (mentioned as Ex
DW 1/18 and the same is de-exhibited being photocopy)- Copy
of affidavit of Sh. Mahfooz Ali and Kishan Lal as, (19)
Ex.DW1/19- Copy of acknowledgment slip cum demand note
issued by MTNL, (20) Ex.DW1/20(Colly.)- Original telephone
bill, (21) Ex.DW1/21- Original subscriptions voucher dated
21.04.1999, (22) Ex.DW1/22(Colly.) (OSR)- Copy of envelopes
of passport and election I-card of defendant no.1 and 2, (23)
Mark E- Copy of meter change report, (24) Mentioned as
Ex.DW1/24 is de-exhibited as the same is already Ex.DW1/15-
Copy of assessment issued by MCD and (25) Ex.DW1/25- Duly
stamped Copy of Written complaint to SHO PS Dilshad Garden
to ACP dated 13.05.2008. DW-1 was cross examined by Ld.
Counsel for plaintiff on 18/12/2018, 03/09/2019, 15/03/2021 and
30/11/2021 before this Court. DW-1 was further cross-examined
before Ld. Local commissioner on 14/03/2022 and 08/04/2022.
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39. On 31/01/2019 DW-1 deposed that he had purchased the
property bearing no.Z2-1. He deposed that he had met Ashok
Kumar Upadhyay in the year 1998 in property no.C-49/Z2 i.e.
the property in which presently, he had residing but he did not
know exact date and month. He deposed that he along with one
Kishan Lal Arora went in the house of Ashok Kumar Upadhyay.
He deposed that he knew Arun Kumar Upadhyay. He admitted
that the property bearing no.Z2-1 was not in his name and same
stood in the name of his wife.
40. On 03/09/2021 DW-1 deposed that he is residing at C-49/Z-
2/1, Dilshad Garden, Delhi. He further deposed that the number
of the property has been wrongly mentioned by the deed writer in
the documents Mark A (colly) as C-49/Z-2Y. He deposed that
property which was purchased by him is C-49/Z-2-1, which is the
correct number. He deposed that he came to know about the
above error in the address mentioned in documents Mark A
(colly) after the present suit was instituted by plaintiff and it was
brought to his knowledge. He deposed that he had not taken any
steps till date for correction of the number of the property in the
documents after the said fact was brought to his knowledge. He
deposed that before purchasing of the property, he had verified
the title documents shown to him by Sh. Ashok Kumar Upadhyay
from the deed writer Mr. Gupta as well as the property Dealers
Sh. Kishan Lal Arora and Sh. Mehfooz Ali, carrying on the
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business under the name of Balaji Property Dealers. He deposed
that the negotiations for the transaction had taken place between
him and the property dealers mentioned above in the office of
Balaji Property Dealers and after the deal was struck, he made
the payment to Sh. Ashok Kumar Upadhyay. He denied the
suggestion that no deal had taken place between him and Sh.
Ashok Kumar Upadhyay and that the documents in respect of the
property had been fabricated and manipulated by him in
connivance with the property dealers. He admitted that no sale
deed in respect of the property in question was executed and only
registered GPA, registered SPA, registered will, agreement to
sell, receipt of money, affidavits were executed by Sh. Ashok
Kumar Upadhyay in his favour on 22.12.1998. He denied the
suggestion that no flat bearing no. C-49/Z-2Y was constructed by
DDA. He deposed that previous chain of ownership was handed
over to him by Sh. Ashok Kumar Upadhyay and whatever
documents Sh. Ashok Kumar Upadhyay handed over, he had
filed the same in the present suit and the same are Ex DW-1/5,
Ex.DW-1/6 and Mark B and also other documents. He denied the
suggestion that he had not filed the conveyance deed and the sale
deed since the property in question was never sold in his favour
by Sh. Ashok Kumar Upadhyay. He deposed that he did not
know the measurement of the flat which he had purchased. He
voluntarily deposed that he had seen the rooms. He deposed that
he had purchased the suit property for a sum of Rs.5 lac but he
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had paid Rs.2.5 lakhs in two installments. He deposed that first
installment of Rs.2.5 lakhs was paid by him about one month
prior to the execution of the documents when the possession was
handed over to him. The remaining Rs.2.5 lakh was paid by him
on the date of execution of documents. He deposed that for
paying the sale consideration of Rs.5 lakhs, he had sold two auto
rickshaws owned by him, one jhuggi situated E-43, D-276, New
Seema puri, Delhi in which he used to reside, Rs. 1 lakhs from
his mother-in-law and Rs.70,000/- was received by him as his
share from the sale proceeds of an ancestral property at
Pillakhwa, Hapur. He deposed that both the TSRs which were
having registration no. DBR7111 and DL1R4546 were sold by
him during the relevant time for sale consideration of Rs.35,000/-
each. He deposed that he could produce the documents vide
which the above TSRs as well as jhuggi were sold by him.
41. On 15/03/2021 DW-1 deposed that he had not brought any
document pertaining to sale of Auto. He voluntarily deposed that
he had brought the documents which show his ownership of auto.
He denied the suggestion that he had not brought the documents
since he did not have the same. He denied the suggestion that he
did not have financial capacity to purchase the suit property. He
deposed that he had paid the consideration of Rs.5 lakhs by cash
in two installments of Rs.2.5 lakhs each to Sh. Ashok Kumar
Upadhyay. He deposed that receipt of Rs. 2.5 lakhs was issued
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and he had the same and in lieu of another payment of Rs.2.5
lakhs, keys of the suit property were handed over to him. He
deposed that he had filed the said receipt of Rs.2.5 lakhs on
record. He was going through the court record, which show that
only photocopy of the said receipt had been filed on record. He
voluntarily deposed that the originals were seized by the IO in
the criminal case registered by plaintiff against defendant. He
denied the suggestion that receipt of Rs.2.5 lakhs was not signed
by Sh. Ashok Kumar Upadhyay and copy of the receipt filed on
record was a forged and fabricated copy. He deposed that he
knew Ashok Kumar Upadhyay since December, 1998 through
Kishan Lal Arora, proprietor of Balajee Property Dealer. He
deposed that he had seen the identity documents of Ashok Kumar
Upadhyay in the office of abovesaid property dealer. He
voluntarily deposed that he along with the abovesaid property
dealer had checked the identity documents of Ashok Kumar
Upadhyay. He deposed that he did not keep the copies of identity
documents of Ashok Kumar Upadhyay. He denied the suggestion
that Ashok Kumar Upadhyay never met him or the property
dealer or that received any amount of Rs.2.5 lakhs, therefore, he
had not kept copy of the identity card of said Ashok Kumar
Upadhyay. He deposed that he knew Balajee Property dealer
since December, 1998. He deposed that at the time of purchasing
the suit property, he did not know Mr. Arun Kumar Upadhyay.
He deposed that he met Arun Kumar Upadhyay for the first time
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after purchasing of the suit property, when he went to Lucknow
in connection with pending electricity etc. bills. He denied the
suggestion that Arun Kumar Upadhyay impersonated as Ashok
Kumar Upadhyay and sold the suit property to him. He was
shown para No.5 of preliminary objections of the written
statement and on seeing the same, he deposed that above
statement given in the court with regard to identity of Mr. Ashok
Kumar Upadhyay was correct and para No.5 of the preliminary
objection did not narrate the correct facts. He denied the
suggestion that he is deliberately changing his stand today in the
Court.
42. On 30/11/2021 DW-1 deposed that he knew Balaji
Property Dealer and its owner name was Sh. Kishan Lal Arora.
He deposed that he did not recollect any Amar Mishra at this
stage. He denied the suggestion that Amar Mishra R/o
H.No.5455, DDA Flats, New Seema Puri, Delhi-110095 had
received a sum of Rs.55,000/- from him on 16.10.1998. He
admitted the suggestion that actual owner of the property was
Ashok Kumar Upadhyay. He deposed that he did not remember if
the said property was allotted to him by DDA.
43. After conducting the part cross examination of DW-1, Ld.
LC Sh. Subhash Chand, Advocate was appointed for recording
and concluding the DE vide order dated 30.11.2021.
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Commissioner that he did not remember whether he had given
one letter dated 16.10.1998 pertaining to the property dealer Shri
Balaji Property Dealer. He deposed that in the year 2003, Ashok
Kumar Upadhyay did not visit to meet him at his house i.e. the
suit property. He deposed that he had never met Ashok Kumar
Upadhyay since 1998. He denied the suggestion that Mr. Ashok
Kumar Upadhyay came to the suit property in the year 2003 and
he was claiming that he was the owner of the suit property and
DW-1 had told him that the suit property would be vacated
within 2 or 3 months as there was marriage of his daughter. He
denied the suggestion that from 2003 to 2008 no one visited to
his house claiming as owner of the suit property. He denied the
suggestion that since 2003 to 2008 Mr. Ashok Kumar Upadhyay,
erstwhile owner and as well as plaintiff had visited many times in
the suit property and requested him to hand over peaceful and
physical possession of the suit property or they had request him
to show the title documents of the suit property. He deposed that
he was searching a property and for that purpose he had visited
Property Dealer Balaji Properties whose office was situated at A-
117, Dilshad Colony, Delhi, wherein he had met with Kishan Lal
Arora and Mehfooz Ali. He deposed that they had shown him
one property i.e. suit property, which belong to Mr. Ashok Kumar
Upadhyay. He deposed that he could not tell the exact date when
he visited the suit property with Kishan Lal Arora and Mehfooz
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Ali.
45. He was shown one Conveyance Deed Ex.PW1/6
pertaining to DDA in favour of Shri Ashok Kumar Upadhyay. He
deposed that the Conveyance Deed Ex.PW1/6, Point A and
Ex.PW1/1 Points A to G did not bear the signature of Shri Ashok
Kumar Upadhyay. He admitted that he can identify the signature
of Sh. Ashok Kumar Upadhyay which he signed while executing
General Power of Attorney, ‘Mark-A’ at point A and B, SPA at
point A, Will at point A, Receipt at point A, Agreement to Sell at
point A & B, Affidavit of Ashok Kumar Upadhyay at point A and
B all dated 22.12.1998. He denied the suggestion that the said
documents i.e. GPA, SPA, Will, Receipt, Agreement to sell and
Affidavit of Ashok Kumar Upadhyay, all dated 22.12.1998 are
gorged and fabricated document and he has never executed these
documents in favour of his wife. He admits that the signatures of
Ashok Kumar Upadhyay appear at Mark-A document as Ashok
K. Upadhyay.
46. On 08/04/2022 DW-1 admitted that during the
investigation the IO in FIR No.111/2008, under Section
420/465/467/468/471/447/380 IPC had obtained his signature
after taking permission from the Hon’ble Court. He was shown
the application dated 20.9.2008. He admitted that application
dated 20.09.2008 moved by the concerned IO for permission for
taking signature bears his signature at point ‘A’ Ex.DW1/P-A. He
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admitted that in similar procedure signature of his wife Afroz
Begum were also obtained by IO. He was shown certified copy
(FIR No.111/2008) of the specimen hand writing and his
signature. He admits the specimen hand writing and his signature
and the same were exhibited as Ex.DW1/P-B(Colly.) starting
from page No.1 to 15. He denied that the said IO had also
obtained the signature of Mahfooz Ali in his presence. He was
shown certified copy of affidavit dated 27.12.1998 Ex.DW1/P-C
which is sworn by Mahfooz Ali and Kishan Lal. He admitted that
the said affidavit was signed by them in his presence. He deposed
that the signature of Mahfooz Ali bears at point A and B and that
of Kishan Lal bears at point C and D. He was shown certified
copy of the statement of Mahfooz Ali dated 13.8.2008, recorded
by the IO in FIR No. 111/2008 which is Ex.DW1/P-D. He
deposed that the said statement Ex.DW1/P-D was not recorded
by the IO in his presence. He denied the suggestion that Mahtooz
Ali had not signed/executed affidavit Ex.DW1/P-C. He admitted
that he was not the owner of the suit property. He was shown
certified copy of Receipt, Agreement to sell, two Affidavits,
General Power of Attorney, Special Power of Attorney, all dated
22.12.1998. After seeing these documents, he admitted that
originals of these documents were handed over by him to the IO
in connection with FIR No.111/2008 Mark A (Colly.) dated
18.12.2018. He admitted that he had received a copy of Charge
Sheet in connection with FIR No.111/2008 and the documents
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Mark A(Colly) beside other documents Ex.DW-1/P-A to D. He
deposed that he did not remember whether he had received FSL
report dated 6.8.2009 with the charge sheet. He was shown the
FSL report dated 6.8.2009 Ex.DWI/P-E. He denied the
suggestion that as per the FSL report dated 6.8.2009 Ex.DW1/P-
E, the admitted signature of Ashok Kumar Upadhyay did not
match with the signatures affixed on GPA and SPA. He admitted
that he had taken the electricity connection on the basis of GPA
& SPA dated 22.12.1998. He voluntarily deposed that he had also
got the connection of MTNL, Water connection and House Tax.
He denied that the suit property was never sold by Ashok Kumar
Upadhyay to his wife. He denied the suggestion that Sh. Ashok
Kumar Upadhyay has sold the suit property to plaintiff by
executing a valid sale deed dated 05/06/2009 Ex. PW-1/1.
47. DW-2 Sh. Bhura filed his evidence affidavit and on
23/04/2022 before the Ld. Local Commissioner, he tendered his
evidence affidavit as Ex.DW2/A and also relied on documents
which were already exhibited and marked. He was cross
examined by Ld. Counsel for plaintiff on the same day.
48. DW-2 deposed in his cross-examination that he knew
Afroz Begum since 1990. He again deposed that he did not know
Afroz Begum but knew his husband Mohd. Aslam. He deposed
that he used to visit off and on in the house of Mohd. Aslam. He
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deposed that he met Mohd. Aslam around 3-4 days ago at his
house. He deposed that he met Mohd. Aslam in the year 1990
when he was staying in Seemapuri in a Jhuggi. He deposed that
he met with Ashok Kumar Upadhyay in the year 1998 but he did
not remember the exact month. He deposed that he met Ashok
Kumar Upadhyay in the office of Mehfooz Ali, who was a
property dealer. He deposed that when he met Sh. Ashok Kumar
Upadhyay, at that point of time Mohd. Aslam, Kishan Lal and
Mehfooz Ali were also present there. He deposed that Mehfooz
Ali introduced him with Ashok Kumar Upadhyay in the office of
property dealer. He deposed that he did not remember the name
of the property dealer’s office. He admitted that he had not seen
any Aadhar Card, Election Card, Passport pertaining to the
identity proof of Sh. Ashok Kumar Upadhyay. He voluntarily
deposed that he himself introduced him as Ashok Kumar
Upadhyay. He deposed that he did not know any person in the
name of Arun Kumar Upadhyay. He denied the suggestion that
he had not met with Ashok Kumar Upadhyay in the office of
property dealer or Ashok Kumar Upadhyay introduced Bhura
himself as Ashok Kumar Upadhyay. He deposed that in the office
of the property dealer, one property dealer matter was discussed
was discussed. He deposed that the said deal was discussed about
property bearing No.C-49/Z2, Dilshad Garden, Delhi. He
deposed that the sale consideration of the property was fixed for
Rs.5 lakhs in his presence. He deposed that he did not remember
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the denomination of the currency notes of Rs.2,50,000/- given in
the office of the property dealer.
49. DW-2 admitted that agreement to sell dated 22.12.1998
Mark A (Colly.) bears his signature at point X is related to the
property bearing No.C-49/Z-2Y. He was shown his signature on
the document i.e. agreement to sell dated 22.12.1998 and he
admitted his signature on the said document. He deposed that he
went to the Sub-Registrar Office, Seemapur, Delhi where he had
signed the said documents in the office of Vakil Sahab. He
deposed that he did not know what kind of documents he had
signed. He voluntarily deposed that but he knew one of the
documents was money receipt. He deposed that he did not know
the contents of the documents which he had signed. He deposed
that he could identify the signature of Ashok Kumar Upadhyay if
the document was shown to him. He was shown agreement to
sell dated 22.12.1998 Mark A (Colly.) bear the alleged signature
of Sh. Ashok Kumar Upadhyay. He deposed that he could not
identify the said signature at this stage. He denied the suggestion
that Ashok Kumar Upadhyay had not signed agreement to sell,
money receipt in his presence or he had received sum of
Rs.2,50,000/- on 22.12.1998 or he exhibited any alleged
documents i.e. GPA, SPA, Will, Affidavit, receipt, agreement to
sell in his presence. He admitted that no documents pertaining to
the property were given or handed over by Ashok Kumar
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Upadhyay to Mohd. Aslam in his presence. He voluntarily
deposed that only key was handed over. He was shown
Ex.PW1/6 i.e. Conveyance Deed of DDA allotted to Sh. Ashok
Kumar Upadhyay on which affixed one photograph of Sh. Ashok
Kumar Upadhyay. He deposed that he could not identify the
photo which was affixed on the Ex.PW1/6. He admitted that he
had come to the Court to depose on the asking of Mohd. Aslamd
Khan in the present case.
50. DW-3 Sh. Navin Kumar Sharma, Senior Section
Supervisor, MTNL, Dilshad Garden Telephone Exchange, Delhi,
who was a summoned witness. On 25.05.2022, DW-3 had
brought the record of telephone connection bearing No.2257159,
containing Bill dated 11.04.2009 to 02.05.2009 Ex.DW3/A,
installation address Ex.DW3/B, letter of installation dated
22.05.2022 Ex.DW3/C, which is installed in the name of Smt.
Afroz Begum at C-49, Z-2, 2nd floor, MIG Flat, Dilshad Garden,
Delhi-110095. He deposed that the said telephone connection
was installed by their department on 30.07.1999. He was cross
examined by Ld. Counsel for plaintiff on the same day.
51. DW-3 deposed that he was working in the present office
for last 12 years. He deposed that generally, they required
application form, proof of residence, one photograph, one ID
proof which include Aadhar, PAN, DL, Voter Card and for
residence proof they required electricity bill, water bill, title
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document etc. for getting the new telephonic connection. He
deposed that he did not have any authority letter or brought from
his senior officer to depose in the court. He voluntarily deposed
that on the telephonic instruction of his immediate officer, he had
come to the Court. He admitted that he had not brought any
document of ID proof or residence proof regarding installation of
the new telephone connection in the name of Afroz Begum,
which was installed in the year 1999.
52. DW-4 Sh. B.S. Yadav, Assistant Personal Officer, BSES
YPL, Division G.T. Raod, Dilshad Garden, Delhi, who was a
summoned witness. On 25.05.2022, he had brought the record of
electricity bill CA No.101245911 dated 17.05.2022 Ex.DW4/A,
document related to installation dated 05.04.2008 and address i.e.
C-49/Z-2-Y, 2nd floor, Dilshad Garden, Delhi-110095 Ex.DW4/B,
which is installed in the name of Smt. Afroz Begum, document
related to electricity meter No.13913351 Ex.DW4/C, document
related to payment history to payment history Ex.DW4/D. He
was cross examined by Ld. Counsel for plaintiff on the same day.
53. He admitted that no electricity connection was installed in
the address C-49/Z2 Pocket C, Dilshad Garden, Delhi by their
department.
54. DW-5 Sh. Satish Kumar Sharma, Senior Assistant Zonal
Revenue Office, Delh Jal Board, G.T. Road, Shahdara, Delhi,
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who was a summoned witness. On 05.07.2022, he had brought
Summary Record from 24.3.1997 to 20.4.2012 with regard to
water connection bearing No.62575 and the same was marked as
Mark DW5/A(colly.). He deposed that the water connection was
issued in the name of Shri Ashok Kumar Upadhyay on 24.3.1997
till 14.3.2008 and thereafter the same was transferred in the name
of Smt. Afroz Begum. He had brought the summary record of
water connection till 20.4.2012. He deposed that the connection
was not operating in Shahdara Zone and had been transferred to
GTB Enclave Zone. He had also brought photocopy of the water
connection bill in the name of Smt. Afroz Begum, address C-
49Z-2, Dilshad Garden, Shahdara, dated 17.5.2022 bearing
K.No. 9076440000 and the same was marked as Mark DW5/B.
He was cross examined by Ld. Counsel for plaintiff on the same
day. It is pertinent to mention here that on 25/05/2022 Sh. Kapil
Kumar, Junior Assistant, Zonal Revenue, Delhi Jal Board
appeared but he had not brought the documents, however, he was
partly examined as DW-5 and his further examination was
deferred for want of summoned record. On 05/07/2022 Sh. Satish
Kumar Sharma has brought the relevant summoned record;
therefore, he was examined as DW-5.
55. DW-5 admitted that no authority letter had been issued by
his department to him to depose in this case. He voluntarily
deposed that the summon issued by the Hon’ble Court was
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marked to ZRO and ZRO marked the same to him to depose in
the present case. He deposed that the document which he had
brought, being a summoned record, require no rubber stamp or
signature and the same were computer generated document. He
deposed that as per the present procedure, they used to provide
water connection to the intending consumer after taking three
months electricity bills, He deposed that earlier they used to take
property documents in which the connection was to be installed.
He deposed that at the time of releasing of water connection,
some documents were required i.e. sale documents, ID proof of
the concerned consumer, one passport size photograph and a self
declaration form. He deposed that he could not tell what kind of
exact documents were taken by their department from Smt. Afroz
Begum. He admitted that he had not brought complete file
regarding the water connection/K.No.9076440000.
56. DW-6 Sh. Gopal Dutt, Record Keeper, Sub-Registrar
Court-IV, Seelampur, Delhi, who was a summoned witness. On
25.05.2022, he had brought the summoned record i.e. GPA with
regard to the property bearing No.C-49/Z-2Y, Second Floor,
Dilshad Garden, Delhi-95 registration No.74546 Book No.4,
Volume 5532 pages 157 to 158 registered on 22.12.1998
executed by Shri A.K. Upadhyay S/o B.B. Upadhyay in favour of
Smt. Afroz Begum wife of Mohd. Aslam Ex.DW.6/A (office
record OSR) (already Mark A colly.), he had also brought SPA
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with regard to the property bearing No.C-49/7-2Y, Second Floor,
Dilshad Garden, Delhi-95 registration No.74547 Book No. 4,
Volume 5532 pages 159 registered on 22.12.1998 executed by
Shri A.K. Upadhyay S/o B.B. Upadhyay in favour of Smt. Afroz
Begum W/o Mohd. Aslam Ex.DW.6/B {office record OSR)}
already Mark A (colly.), he had also brought Will dated
22.12.1998 with regard to the property bearing No.C-49/7-2Y,
Second Floor, Dilshad Garden, Delhi-95, registration No.50090
Book No.3 Volume 2355 page 29 executed by Shri A.K.
Upadhyay in favour of Smt. Afroz Begum Ex.DW6/C (office
record OSR) (already Mark A colly.). He was cross examined by
Ld. Counsel for plaintiff.
57. DW-6 deposed that he did not know the procedure of
registration of documents. He voluntarily deposed that the same
was known to Sub Registrar and Reader in the office. He deposed
that he did not know whether the property/flat bearing
No.C-49/Z-2 was registered in the name of Shri Subhash
Chandra Soni, Plaintiff.
58. DW-7 Mr. Salim Ahmad, S/o Abdul Aziz, R/o G-183,
Dilshad Colony, Delhi filed his evidence affidavit and on
25.05.2022, he tendered his evidence affidavit as Ex.DW7/A. On
05.07.2022, he was cross examined by Ld. Counsel for plaintiff.
59. DW-7 deposed that he met for the first time Mohd. Aslam
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in the year 1992 in Seemapuri. He deposed that during their first
meeting, they interacted with each other only. He deposed that as
per his knowledge, Mohd. Aslam had purchased a property in
1993 in cluster area, Seemapuri, Delhi. He deposed that he only
remember the number of the said property as E-43, D Block,
Mohd. Aslam resided in the said property till the year 1996-97.
He deposed that as per his knowledge, Mohd. Aslam was
engaged with Embassy for getting Visa/Passport etc. He
voluntarily deposed that auto thi inke pass. He deposed that after
1996-97, he did not remember as to where he started to reside.
He deposed that in the month of December, 1998 the advance
money i.e. Rs.2,50,000/- was paid in the office of property dealer
Balaji Properties in respect of the suit property. He deposed that
the said amount was paid to Ashok Kumar Upadhyay. He
deposed that he did not check the identity proof of Shri Ashok
Kumar Upadhyay but the same was checked by the property
dealer (Kishan and Mehfooz). He denied the suggestion that
Ashok Kumar Upadhyay was not present in the office of Balaji
Properties at the time of receipt of the aforesaid sum of
Rs.2,50,000/- or Ashok Kumar Upadhyay had not shown any
identity proof to the said Shri Kishan and Mehfooz in his
presence. He deposed that in the office of Registrar, sale deed
and money receipt and other documents were executed in his
presence. He admitted that he did not know the contents of the
documents which were executed in the office of the Sub
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Registrar. He deposd that at the time of execution of the aforesaid
documents, Mr. Bhura, Mohd. Aslam, Mehfooz, Kishan, one of
the relative of Mohd. Aslam and wife of Mohd. Aslam were
present. He deposed that Sh. Ashok Kumar Upadhyay was also
present. He deposed that in his presence the registered documents
were signed by himself, Bhura, Ashok Kumar Upadhyay and
wife of Mohd. Aslam. He denied the suggestion that he had not
met Ashok Kumar Upadhyay in the office of property dealer or in
the office of Sub Registrar at the time of execution of the
documents. He deposed that the amount of Rs.2,50,000/- was
paid in his presence. He deposed that he could not tell the exact
denomination of the currency notes but the same were in the
denomination of 1000, 500 currency notes. He admitted that the
money receipt dated 22.12.1998 bears his signature at point ‘B’
which was already marked as Mark A dated 14.3.2022. He
admitted that the money receipt which is already marked A
pertain to property bearing No. C-49/Z-2Y, Dilshad Garden. He
admitted that he had not signed any document relating to
property bearing No.C-49/Z-2, Dilshad Garden, Delhi or at the
time of registration of document. He deposed that he could
identify the signature of Ashok Kumar Upadhyay, if shown to
him. He was shown Mark A(Colly.) i.e. GPA, SPA, Will, Receipt
all dated 22.12.1998. He had correctly identified the signatures of
Sh. Ashok Kumar Upadhyay on the aforesaid document. He
admitted that the signatures bears on Ex.PW1/1 dated 1.8.2013
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and signature appear on Mark A (colly.) dated 18.12.2018 were
totally different signatures from each other. He deposed that the
same did not match with each other. He was shown document
Ex.PW1/1 which affix one photograph at point ‘A’ and after
seeing the same, he deposed that the photograph shown was not
that of Ashok Kumar Upadhyay.
60. DW-8 Sh. Om Prakash, Posted as Section Officer, Posted
at Property Tax Department Shahdara North, Near Shyam Lal
College, Delhi-110032, who was a summoned witness. He had
brought the summoned record i.e. (a) Assessment of Bill dated
31.03.1992 bearing receipt no. 81109 Ex.DW8-1(O.S.R)(2
pages), (b) Amendment to assessment list-order u/s 126(1) of
DMC Act dated 01.12.1998 EX.DW8-2(OSR) (2pages), (c) Tax
assessment bill dated 01.12.1988 Ex.DW8/3(OSR), Letter dated
22.08.1986 issued by DDA in favour of Sh. Ashok Kumar
Upadhyay Mark A, (d) Copy of demand and receipt bearing
no.55903 dated 14-03-1999 register showing entry of property
tax paid through cheque bearing no.957616 dated 14.03.1999, the
said tax was paid by Sh. Ashok Kumar Upadhyay
Ex.DW8/4(OSR), (e) The said tax was paid by Afroz Begum, the
copy of demand and receipt bearing G.8 no.647017 register
showing entry of property tax paid through cheque bearing
no.742801 dated 30.10.2004, the said tax was paid by Afroz
Begum Ex.DW8-5(OSR) & (f) Property tax receipt no.PT-
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931375 dated 01/12/2021 for FY 2021-2022 Ex.DW8/6, which
was paid by Mohd. Aslam on behalf of Smt. Afroz Begum. He
was cross examined by Ld. Counsel for plaintiff.
61. DW-8 admitted that since beginning till 2021-2022 the tax
was paid on our office pertaining to property bearing no.C-49/Z-
2, Dilshad Garden. He admitted that no other document except
pertaining to the property bearing no.C-49/Z -2 lying in their
office record. He admitted that that as per the summon record,
the documents produced by him did not bear property no.C-49/Z-
2Y. He admitted that tax was paid in the name of the Ashok
Kumar Upadhyay with regard to Ex.DW8/4. He admitted that the
tax was deposited pertaining to the property bearing no.C-49/Z-2
by Afroz Begum as shown in Ex.DW8/5 and Ex.DW8/6. He
admitted that as per their record as of today property bearing
no.C-49/Z-2 was in the name of Ashok Kumar Upadhyay. He
admitted that as per Demand Collection Register, property
bearing no. C-49/Z-2 stood in name of Ashok Kumar Upadhyay.
62. On 03.09.2022, DE was closed and the matter was listed
for final arguments.
63. Final arguments were heard on 11.03.2024, 01.05.2024,
03.05.2024, 13.05.2024, 31.05.2024, 08.07.2024, 31.07.2024,
12.09.2024 and 09.01.2025. Written synopsis have been filed on
behalf of defendant No.1 and 2 on 19.04.2024.
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FINAL ARGUMENTS ADDRESSED BY THE LD. COUNSEL
FOR PLAINTIFF
64. It was argued on behalf of plaintiff that plaintiff is the
lawful owner of the property bearing No.C-49/Z-2-1(also called
as C-49/Z-2), Pocket-C, Dilshad Garden, Delhi and he has
purchased the suit property from defendant No.3, real/actual
owner, for a lawful consideration of Rs.7 lakhs vide registered
sale deed dated 05.06.2009. It was further argued that the suit
property was allotted by DDA in favour of defendant No.3 in the
year 1986 and the possession was delivered to defendant No.3 on
30.03.1987. It is further argued that after getting possession of
the suit property, defendant No.3 stayed in the suit property about
six months but being the employee of Indian Airlines, he
continued to live out of Delhi during his service. It is further
argued that defendant No.3 allowed his brother namely Sh. Arun
Kumar Upadhyay to reside in the suit flat along with his family.
It is further argued that the parents of defendant No.3 also stayed
in the suit property for about 4-5 years. It is further argued that
defendant No.3 used to occasionally visit to the suit property to
meet his brother Sh. Arun Kumar Upadhyay and in the year
2000, he also stayed one night in the suit property. It is further
argued that in the year 2003, defendant No.3 after his retirement
went to the suit property and found defendant No.1 and
defendant No.2 residing in it. It is further argued that defendant
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No.3 disclosed to defendant No.1 and 2 that he is the owner of
the suit property and thereafter, defendant No.1 and 2 asked for
some time from defendant No.3 to vacate the suit property and
hand over the possession to him. It is further argued that
defendant No.1 did not hand over the possession of the suit
property to defendant No.3 despite various requests. It is further
argued that thereafter defendant No.3 came in contact with
plaintiff and requested him to make enquiry regarding the suit
property. It is further argued that after making some enquiry and
visiting the suit property, defendant No.1 and 2 told plaintiff that
they are the rightful owners of the suit property and are
occupying the same in their own rights. It is further argued that
plaintiff also made enquiry from DDA and was surprised to know
that some other person impersonated himself to be defendant
No.3, had applied to DDA for duplicate copies of allotment
documents. It is further argued that defendant No.3 executed a
Special Power of Attorney Ex.PW1/8 in favour of plaintiff. It is
further argued that defendant No.1 and 2 represented that they
have purchased the suit property through one property dealer
namely Sh. Arun Mishra and they further refused to hand over
the possession of the suit property. It is further argued that
thereafter plaintiff applied for disconnection of the electricity and
water connections with the company and the same were
disconnected, however, defendant No.1 and 2 again applied for
new connections on the basis of forged and fabricated documents
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i.e. General Power of Attorney, Will and Receipt dated
22.12.1998. It is further argued that after getting the knowledge
about the aforesaid forged documents, plaintiff asked defendant
No.3 about the aforesaid documents, who refused to
acknowledge the documents and confirm that he has not sold the
property to anyone including defendant No.1 and 2 and he also
denied his signatures on the said documents. It is further argued
that thereafter FIR No.111/2008 was registered at PS Dilshad
Garden, Delhi under Section 420/465/467/468/471/447/380 IPC
against defendant No.1 and 2. It is further argued that defendant
No.1 and 2 are occupying the premises unauthorizedly and
illegally without any lawful right and they have no right to
continue in the suit property. It is further argued that defendant
No.1 and 2 are the trespassers and occupying the property by
breaking up the locks. It is further argued that the documents
relied upon by defendant No.1 and 2 are forged and have no legal
sanctity. It is further argued that plaintiff has purchased the suit
property for a lawful consideration from defendant No.3 and vide
registered sale deed dated 05.06.2009 Ex.PW1/1. It is further
argued that defendant No.3 being the lawful and actual owner has
transferred the suit property in favour of plaintiff after receiving a
valid consideration from plaintiff. It is further argued that the sale
deed Ex.PW1/1 is a legal and valid document and confer
ownership rights of the suit property in favour of plaintiff,
therefore, plaintiff is entitled for the relief of possession as well
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Page 51 of 105
as other reliefs claimed in the suit. It is further argued that all the
original chain of title documents of the suit property have been
produced by plaintiff as the same were handed over by
defendant No.3 to plaintiff at the time of its purchase. It is further
argued that the property number mentioned in documents Mark
A(colly.)(Ex.DW6/A, Ex.DW6/B and Ex.DW6/C) relied by
defendant No.1 and 2, is not of the suit property. The property
number mentioned in the aforesaid documents is “C-49/Z-2Y,
Dilshad Garden, Delhi” does not exists. It is further argued that
the aforesaid documents have been forged by defendant No.1 and
2 in order to grab the suit property. It is further argued that as per
the case of defendant No.1 and 2, they have purchased the suit
property from the brother of defendant No.3 namely Sh. Arun
Kumar Upadhyay, who is not the actual and lawful owner of the
suit property and he has no right to transfer the same in favour of
defendant No.1 and 2. It is further argued that defendant No.1
and 2 have failed to prove that Sh. Arun Kumar Upadhyay was
the ostensible owner of the suit property and the alleged transfer
was a bonafide transaction. It is further argued that as per the
FSL report, the signatures of Sh. Ashok Kumar Upadhyay is not
similar to the signatures of Sh. Ashok Kumar Upadhyay on the
documents relied upon by defendant No.1 and 2. It is further
argued that defendant No.1 and 2 alleged that they have paid the
entire sale consideration amount to Sh. Arun Kumar Upadhyay
but it is strange that despite making payment defendant No.1 and
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2 have not executed the sale deed in their favour. It is further
argued that defendant No.1 and 2 have not filed any receipt qua
the alleged sale consideration paid by them to Sh. Arun Kumar
Upadhyay. It is further argued that para no.5 of evidence affidavit
of DW1 is out of pleading. It is further argued that defendant
No.1 has not stepped into the witness box to prove the defence
taken by defendant No.1 and 2. It is further argued that defendant
No.2 and 7 are not the reliable witnesses and their testimonies
cannot be considered. It is further argued that the documents
relied upon by defendant No.1 and 2 do not confer any
ownership right in the suit property in their favour. It is further
argued that defendant No.1 and 2 have failed to discharge their
onus of proof in respect to issue No.9, 10, 11 and 12 by leading
positive evidence and on the other side plaintiff has proved his
case on the principle of preponderance of probabilities, therefore,
the suit of the plaintiff is liable to be decreed. Plaintiff has relied
upon the following judgments: (1) Suraj Lamp & Industries Pvt.
Ltd. Vs. State of Haryana & Anr. (SLP NO.13917 of 2009; (2)
Ghanshyam Vs. Yogendra Rathi, Civil Appeal No.7527-7528 of
2012; (3) Shakeel Ahmad Vs. Syed Akhlaq Hussain (Civil
Appeal No.1598 of 2023); and (4) Avinash Kumar Chauhan Vs.
Vijay Krishna Mishra (Civil Appeal No.7350 of 2008 arising out
of SLP(C) No.8651 of 2007).
FINAL ARGUMENTS ADDRESSED BY THE LD. COUNSEL
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FOR DEFENDANT NOS.1 AND 2
65. It was argued on behalf of defendant No.1 and 2 that
defendant No.2 was an auto driver whereas defendant No.3 was a
government servant, employed with Indian Airlines. It was
further argued that defendant No.3 never lived in the suit
property due to his transferable job, however, his brother Sh.
Arun Kumar Upadhyay, who was an Advocate, had started living
in the suit property, along with his family after the allotment in
the year 1987 and continued to live in the suit property until the
same was sold to defendant No.1 and 2 in the year 1998. It was
further argued that Sh. Arun Kumar Upadhyay represented to
public at large and all government and private departments that
he is Ashok Kumar Upadhyay, in whose favour the suit flat has
been allotted by DDA. It was further argued that defendant No.3
and his brother had the same initials. It was also argued that the
name plate installed outside the house was in the name of “A.K.
Upadhyay”. It was further argued that defendant No.3 never
came to suit property, therefore, all neighbours etc. could not
have been aware that the person living in property in question is
not Ashok Kumar Upadhyay but Arun Kumar Upadhyay. It was
further argued that defendant No.2 purchased the suit property in
the name of his wife vide registered GPA, registered SPA,
registered Will, notarized Agreement to sell and notarized
Receipt on 22.12.1998 from the ostensible owner believing that
he is the real owner and has capacity to transfer the suit property.
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It was further argued that defendant No.3, even after getting the
knowledge about the status of defendant No.1 and 2 in the suit
property, never objected the possession and ownership of
defendant No.1 and 2 nor he ever took any action against them
for getting the suit property vacated. It was further argued that
defendant No.1 and 2 have purchased the suit property for a
valuable consideration from the ostensible owner namely Sh.
Arun Kumar Upadhyay, who represented himself to be the lawful
and actual owner of the suit property and therefore, they have
attained the lawful and ownership rights in the suit property and
are protected under Section 41 of the Transfer of Property Act,
1882. It was further argued that defendant No.1 and 2 are the
bonafide purchaser of the suit property. It was further argued that
plaintiff and defendant No.3 are estopped by the Doctrine of
Estoppel by acquiescence as well as Section 115 of the Indian
Evidence Act. It was further argued that defendant No.1 and 2
had also become the owner of the suit property by virtue of
adverse possession. It was further argued that the FIR bearing
No.111/2008 registered at PS Dilshad Garden was not got
registered by Sh. Ashok Kumar Upadhyay. It was further argued
that the FIR is silent about the acts of Sh. Arun Kumar
Upadhyay. It was further argued that defendant No.3 has not led
his evidence or has not entered into the witness box to prove the
alleged facts pleaded by plaintiff as well as defendant No.3. It
was further argued that plaintiff has failed to prove that the
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alleged maker of the sale deed was none other than Sh. Ashok
Kumar Upadhyay. It was further argued that the testimony of
PW1 and stand taken by plaintiff are contrary to the statement
given by defendant No.3 under order X CPC r/w Section 165 of
Indian Evidence Act before the Hon’ble High Court of Delhi. It
was further argued that the material came on record shows the
existence of fraud perpetrated by Sh. Arun Kumar Upadhyay, Sh.
Ashok Kumar Upadhyay and plaintiff against defendant No.1
and 2 in order to grab the suit property. It was further argued that
plaintiff has failed to prove his case and documents relied upon
by him. It was further argued that Sh. Rajeev Upadhyay is the
son of Sh. Arun Kumar Upadhyay and not of Sh. Ashok Kumar
Upadhyay, defendant No.3 which can also be inferred by
perusing the sale deed Ex.PW1/1 which mentions different
addresses of defendant No.3 and Sh. Rajeev Upadhyay. It was
further argued that the allotment letter described the address of
suit property as “C-49-Z-2-1”, however, the sale deed Ex.PW1/1
mentions the address as “C-49/Z-2”, which means that the sale
deed does not pertain to the suit property or the property in
respect of which the allotment letter was issued and conveyance
deed was executed. It was further argued that plaintiff has failed
to prove that the sale deed is a valid and legal document and was
executed and registered for a lawful consideration. It was further
argued that plaintiff has failed to prove the consideration amount
mentioned in the sale deed Ex.PW1/1, in accordance with law. It
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was further argued that plaintiff has not filed his ITR. It was
further argued that plaintiff has purchased the disputed property
without consideration. It was further argued that the sale deed
Ex.PW1/1 has no value in the eyes of law. It was further argued
that the factum of delivery of possession of the suit property has
been wrongly mentioned in the sale deed Ex.PW1/1. It was
further argued that plaintiff and defendant No.3 was aware about
the rights and capacity of defendant No.1 and 2 in the suit
property even thereafter, the sale deed Ex.PW1/1 mentions that
the property is free from all encumbrances. It was further argued
that the present suit is bad for non-joinder of necessary party
because plaintiff has failed to implead Sh. Arun Kumar
Upadhyay as party to the present suit. It was further argued that
plaintiff has admitted during his cross examination that he has no
personal knowledge about the facts prior to the year 2006
mentioned in the plaint and the same have been told to him by
defendant No.3, however, defendant No.3 has never been
examined to prove the said facts. It was further argued that it is
for the plaintiff to prove that defendant has not acted in good
faith while dealing with the suit property. It was further argued
that defendant No.1 and 2 have proved their case on the basis of
principle of preponderance of probabilities, however, plaintiff has
failed to prove his case by leading positive and reliable evidence.
It was further argued that the suit of the plaintiff is liable to be
dismissed. Ld. Counsel for defendant relied upon the following
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judgments: (1) Ramcoomar Koondoo and another Vs. John and
Maria Mcqueen, (1872) 11 Bengal Law Reporter 46 (Privy
Council) and (2) Anoop Singh and others Vs. Smt. Bachni and
another (1996) 114 PLR 184.
APPRECIATION OF EVIDENCE AND DETERMINAITON OF
THE CASE ISSUE-WISE
66. This Court firstly takes the issue No.9, 11 and 12 together
for adjudication.
ISSUE NO.9:- Whether Ashok Kumar Upadhyay had not sold
the suit property to defendant no.1 on 22/12/1998 through his
brother representing himself to be Ashok Kumar Upadhyay?
OPD
AND
ISSUE NO.11:- Whether the suit is barred by law of estoppel
under Section 43 of the Transfer of Property Act, 1882 and law
of ostensible ownership as contained under Section 41 of
Transfer of Property Act, 1882? OPD
AND
ISSUE NO.12:- Whether the defendant no.1 is the bona fide
purchaser of the suit property and has been living and occupying
the suit property since the date of purchase as being the actual
owner of? OPD
67. Section 41 of the Transfer of Property Act is an exception
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to the general rule that a person could not confer better title than
he had. It is a principle of natural justice where one man allows
another to hold himself out as the owner of an estate and a third
person purchases it, for value, from the apparent owner in the
belief that he is the real owner, the man who so allows the other
to hold himself out shall not be permitted to recover upon his
secret title, unless he can overthrow that of the purchaser by
showing either that he had direct notice, or something which
amount to constructive notice, of the real title; or that there
existed circumstances which ought to have put him upon an
enquiry that if prosecuted, would have led to a discovery of it.
68. Being an exception, the onus certainly is upon the
transferee to show that the transferor was the ostensible owner of
the property and that he had, after taking reasonable care to
ascertain that the transferor had the power to make the transfer
acted in good faith. Both these ingredients must be proved by the
purchaser in order to invoke estoppel.
69. The conditions which must be fulfilled before a real owner
can be deprived of his rights by the act of ostensible owner are
(1) A person must be the ostensible owner of the property with
the consent, express or implied, of the real owner; (2) The
transferee must purchase the property from the ostensible owner
for consideration; (3) Before taking the transfer, the transferee
must take reasonable care to ascertain that the transferor has
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power to make the transfer; and (4) The transferee must act in
good faith.
70. An ostensible owner is apparently the full and unqualified
owner of the property who had in reality only a qualified
possession, such as that of a hirer of goods. An ostensible owner
is a person who got indicia of ownership such as title, possession
or entries in record made to show ownerships. However, where
the possession is for a specific purpose, Section 41 of Transfer of
Property Act is inapplicable. The possession of transferor as
agent or manager cannot be treated as ostensible ownership with
the consent of the real owner. The terms exclude person who
holds possession of property professedly as agents, guardians, or
in any other fiduciary character. A person does not become an
ostensible owner if the true owner has entrusted him with
temporary dominion over his property for a limited purpose.
71. The Hon’ble Supreme Court of India in Gurbaksh Singh
Vs. Nikka Singh, AIR 1963 SC 1917 has held that Section 41 is
an exception to general rule that a person cannot confer a better
title than what he has. Being an exception the onus is on the
transferee to show that the transferor was the ostensible owner of
the property and that the transferee had after taking reasonable
care to ascertain that the transferor had power to transfer, acted in
good faith.
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72. In Seshumull M. Shah Vs. Sayed Abdul Rashid, AIR 1991
Karnataka 273, the Hon’ble High Court has held that in every
case, where a transferee for valuable consideration seeks
protection under Section 41 of the Transfer of Property Act, the
transferee must show that the real owner had permitted the
apparent owner either by express words, consent or conduct to
transfer the property in favour of the transferee. In other words, it
must be shown that with the consent of true owner, the ostensible
owner was able to represent himself as the owner of the property
to the purchaser for value without notice.
73. The plaintiff has pleaded that he has purchased the suit
property from defendant No.3 vide registered sale deed dated
05.06.2009 Ex.PW1/1, for valuable consideration of an amount
of Rs.7 lakhs. It is pleaded that defendant No.3 Sh. Ashok Kumar
Upadhyay was the real and absolute owner of the suit property,
being allotted to him by DDA in the year 1986-87 vide allotment
letter, possession slip and other documents Ex.PW1/2 to
Ex.PW1/5. It is also pleaded that defendant No.3 has also got the
suit property free hold and a conveyance deed had been executed
by DDA in favour of defendant No.3 Sh. Ashok Kumar
Upadhyay vide registered conveyance deed dated 10.04.2007
Ex.PW1/6.
74. The defendant No.1 and 2 have taken the defence that
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defendant No.2 has purchased the suit property in the name of
defendant No.1 for a consideration from the person who was in
possession of the suit property at the relevant time and he
represented himself to be Sh. Ashok Kumar Upadhyay, the real
owner and also represented that he is competent to sell the suit
property to them. Defendant No.1 and 2 have purchased the suit
property vide documents i.e. registered GPA, registered SPA,
registered Will, notarized Receipt, notarized Agreement to sell
and Affidavit all dated 22.12.1998 which are marked as Mark A
(colly.). (Defendant No.1 and 2 have examined DW6, who had
produced the copies of registered GPA, registered SPA and
registered Will which were exhibited as Ex.DW6/A to
Ex.DW6/C). Defendant No.1 and 2 have taken the stand that Sh.
Arun Kumar Upadhyay, brother of defendant No.3, was the
ostensible owner of the suit property and defendant No.1 and 2
have made reasonable enquiry prior to its purchase.
75. It has been deposed by defendant No.2/DW1 that he has
purchased the suit property in the name of his wife through Balaji
Property Dealer situated at A-117, Dilshad Colony, Delhi. It has
also been deposed that the owners of Balaji Property Dealer are
Mehfooz Ali and Kishan Lal. It has also been deposed that Sh.
Mehfooz Ali, Kishan Lal and brother of defendant No.3 namely
Sh. Arun Kumar Upadhyay showed the title documents to him
i.e. allotment letter issued by DDA, certificate of registration
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assessed by MCD, demand/allotment letter, copy of challan,
electricity bills and certain other documents showing that the
owner of the suit property is Sh. Ashok Kumar Upadhyay and
brother of defendant No.3 represented himself as actual owner
and also that his name is Ashok Kumar Upadhyay. The defendant
No.1 and 2 have not examined Mehfooz Ali in order to prove the
transactions occurred between defendant No.1 and 2 and brother
of defendant No.3 Sh. Arun Kumar Upadhyay in respect to suit
property. It is pertinent to mention here that the Hon’ble High
Court of Delhi has recorded the statement of Mehfooz Ali under
Order X CPC r/w Section 165 of Indian Evidence Act on
15.05.2012 wherein Mehfooz Ali has denied his signatures on the
affidavit dated 22.12.1998. The said affidavit has been filed by
defendant No.1 and 2 which is part of the documents Mark
A(colly.). The said affidavit reflects that the same has been
deposed by Mehfooz Ali and Kishan Lal jointly stating that the
suit property has been sold to defendant No.1 through their firm
namely M/s Balaji Associates. Mehfooz Ali has also stated in his
statement before the Hon’ble High Court of Delhi that Kishan
Lal was the Property Dealer and was carrying his business in the
name and style of M/s Balaji. He further stated that as per his
knowledge Kishan Lal has already expired. It is pertinent to
mention here that the business of M/s Balaji Associates used to
run from the property bearing No.A-117, Ground floor, Dilshad
Garden, Delhi which is owned by Mehfooz Ali and his wife.
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76. As pleaded by defendant No.1 and 2, the deal of the suit
property was negotiated and done through Mehfooz Ali and Sh.
Kishan Lal, therefore, the testimony of Mehfooz Ali to prove the
said transaction/negotiation done between defendant No.1 and 2
and brother of defendant No.3 would be a material piece of
evidence. The testimony of Sh. Mehfooz Ali would also be
relevant to prove the representation made by brother of defendant
No.3 Sh. Arun Kumar Upadhyay himself as Sh. Ashok Kumar
Upadhyay to them including defendant No.1 and 2. However,
defendant No.1 and 2 have not examined such a material witness
to prove the negotiation; transaction held between defendant
No.1 and 2 and Sh. Arun Kumar Upadhyay; and representation
given by Sh. Arun Kumar Upadhyay stating himself to be Sh.
Ashok Kumar Upadhyay, the actual and real owner of the suit
property, to defendant no.1, defendant no.2, Mehfooz Ali and Sh.
Kishan Lal.
77. The defendant No.1 and 2 have also not examined the
neighbours residing near and adjacent to the suit flat/property to
prove that Sh. Arun Kumar Upadhyay had represented them to be
Sh. Ashok Kumar Upadhyay and the real and actual owner of the
suit property and also the averment that the name plate of “A.K.
Upadhyay” was installed at the entry/outside wall of the suit
property. The written statement also does not disclose the name
of the persons including neighbours living near and adjacent to
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the suit flat to whom Sh. Arun Kumar Upadhyay had represented
himself to be Sh. Ashok Kumar Upadhyay. Defendant No.1 and 2
have also not disclosed the name of the persons including
neighbours residing near and adjacent to the suit flat, from whom
they have made reasonable enquiries regarding the ownership
and status of Sh. Arun Kumar Upadhyay in the suit property. The
defendant nos. 1 and 2 have not proved the facts which can
establish that they have taken reasonable care to ascertain that the
transferor Sh. Arun Kumar Upadhyaya has power to make the
transfer. It is not the case of the defendant nos.1 and 2 that Sh.
Arun Kumar Upadhyay was also having any right in the suit
property. It is also not the case of defendant nos.1 and 2 that they
have met defendant no.3 Sh. Ashok Kumar Upadhyay prior to or
at time of transaction and he has given consent, either express or
implead that Sh. Arun Kumar Upadhyay, his brother, is actual
Ashok Kumar Upadhyay and he is competent to make transfer.
The defendant No.1 and 2 have also not inspected the file/record
of DDA prior to entering into the transaction with Sh. Arun
Kumar Upadhyay. The defendant nos.1 and 2 have not produced
any cogent and reliable evidence to show that Sh. Ashok Kumar
has sold the suit property to them on 22/12/1998 through his
brother Sh. Arun Kumar Upadhyay, who represented himself as a
real and actual Ashok Kumar Upadhyay.
78. The defendant no. 1 and 2 are asserting their rights in the
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suit property on the basis of registered General Power of
Attorney Ex.DW-6/A, registered Special Power of Attorney
Ex.DW-6/B, registered Will Ex.DW-6/C and Copy of Agreement
to sell, Copy of receipt and copy of affidavit, part of Mark-A
(Colly). The registered General Power of Attorney Ex.DW-6/A
and registered Special Power of Attorney Ex.DW-6/B do not
mention the sale consideration amount or that the said documents
have been executed for consideration, therefore, the defendant
no.1 and 2 are not entitled to take benefit of Section 202 of the
Indian Contract Act. The registered Will Ex.DW-6/C has not
been proved in accordance with law. The agreement to sell and
Receipt dated 22/12/1998 are the unregistered document. The
afore-said documents relied upon by defendant no.1 and 2 are hit
by the judgment of Hon’ble Supreme Court passed in ” Suraj
Lamp & Industries Pvt. Ltd. versus State of Haryana & Anr .”
[SLP (C) No.13917 of 2009], AIR 2012 SC 206.
79. The Hon’ble Supreme Court of India in “Shakeel Ahmed
versus Syed Akhlaq Hussain”, Civil Appeal No. 1598 of 2023
has held that Law is well settled that no right, title or interest in
immovable property can be conferred without a registered
document which has been laid down by the judgment of Suraj
Lamps & Industries. The Hon’ble Supreme Court has rejected the
arguments that the judgment in Suraj Lamps & industries would
be prospective in nature. The Hon’ble Supreme Court further
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held that the requirement of compulsory registration and effect
on non-registration emanates from the statues, in particular the
Registration Act and the Transfer of Property Act. The ratio in
Suraj Lamps & Industries only approves the provisions in the
two enactments. The Hon’ble Supreme Court of India in the para
no. 10 of its judgment is held which is mentioned as under:-
“10. Having considered the submissions at the outset, it is to be
emphasized that irrespective of what was decided in the case of
Suraj Lamps and Industries (supra) the fact remains that no title
could be transferred with respect to immovable properties on the
basis of an unregistered Agreement to Sell or on the basis of an
unregistered General Power of Attorney. The Registration Act,
1908 clearly provides that a document which requires
compulsory registration under the Act, would not confer any
right, much less a legally enforceable right to approach a Court
of Law on its basis. Even if these documents i.e. Agreement to
Sell and the Power of Attorney were registered, still it could not
be said that the respondent would have acquired title over the
property in question. At best, on the basis of the registered
agreement to sell, he could have claimed relief of specific
performance in appropriate proceedings. in this regard, reference
made to section 17 and 49 of the Registration Act and Section 54
of the Transfer of Property Act, 1882.”
80. The Hon’ble Supreme Court of India in ” M.S.
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Ananthamurthy & Anr. versus J. Manjula Etc. “, Civil Appeal
Nos. 3266-3267 of 2025 arising out of SLP (C) No. 13618-13619
of 2020 has turned down the submissions of the appellant that the
combined reading of the Power of Attorney and the agreement to
sell, would mean that by executing the power of attorney along-
with agreement to sell, the holder had an interest in the
immovable property. It was also held that if interest had been
transferred by way of a written document, it had to be
compulsorily registered as per Section 17 (1) (b) of the
Registration Act. It is further held that the Law recognizes two
modes of transfer by sale, first, through a registered instrument,
and second, by delivery of property if its value is less than Rs.
100/-.
81. The defendant no.1 and 2 pleads that they have purchased
the suit property for an amount of Rs.2,50,000/- as per receipt,
though stated by DW-1 in his evidence that the sale consideration
was Rs. 5 Lakh, which means that the consideration amount is
above Rs. 100/-, therefore, in view of the law laid down by the
Hon’ble Supreme Court of India, the documents i.e. registered
General Power of Attorney Ex.DW-6/A, registered Special Power
of Attorney Ex.DW-6/B, registered Will Ex.DW-6/C and copy of
Agreement to sell, copy of receipt and copy of affidavit, part of
Mark-A (Colly) does not confer any right, title or interest in
favour of defendant no.1 and 2 in respect to suit property.
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82. If the afore-said documents i.e. registered General Power
of Attorney Ex.DW-6/A, registered Special Power of Attorney
Ex.DW-6/B, registered Will Ex.DW-6/C and copy of Agreement
to sell, copy of receipt and copy of affidavit, part of Mark-A
(Colly) do not confer any right, title or interest in favour of
defendant no.1 and 2 in respect to suit property and have no legal
sanctity, then the defendant no.1 and 2 would not be entitled for
the benefit of Section 41 of the Transfer of Property Act, 1882
because the said benefit would be available only to the transferee
who would have made a reasonable enquiry and whose
documents are registered as per Section 17 (1) (b) of the
Registration Act and Section 54 of the Transfer of Property Act,
1882 and have legal validity under the law or would be having
legal binding force.
83. Moreover, the address of the property mentioned in the
GPA Ex.DW-6/A, SPA Ex.DW-6/B, Will Ex.DW-6/C, and copy
of Agreement to sell, copy of receipt and copy of affidavit, part
of Mark-A (Colly) is not of the suit property as the same
mentions the address of the property under alleged transaction as
“C-49-Z-2Y”. The defendant No.1 and 2 have raised the
arguments that the number of suit property mentioned in the
documents Ex.PW-1/2 to Ex.PW-1/6 is “C-49-Z-2-I”, however,
the address of suit property mentioned in sale deed Ex.PW-1/1 is
“C-49-Z-2” which means that they are two different properties.
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The said arguments raised on behalf of the defendant is not
sustainable because firstly the address of the schedule property
mentioned in conveyance deed dated 10/04/2007 Ex.PW-1/6 is
“C-49/Z-2” and the said deed also mention that DDA is giving
ownership rights to Sh. Ashok Kumar Upadhyay in “C-49/Z-2-I”
which means that the flat bearing no. “C-49/Z-2” and “C-49/Z-2-
1” is one and same flat; secondly that the documents Ex.DW-1/2,
Ex.DW-1/3, Ex.DW-1/4, Ex.DW-1/10 (Colly), Ex.DW-1/11,
Ex.DW-1/12, DW-1/13 (Colly), DW-1/14 (Colly), Ex.DW-1/15
(Colly), Ex.DW-1/19, Ex.DW-1/20 (Colly) and Ex.DW-1/21
relied upon by the defendant no.1 and 2 mentioned the address of
the suit property as “C-49/Z-2” and not “C-49/Z-2Y”; thirdly
defendant nos.1 and 2 have not raised the said issue in their
written statement and fourthly, the defendant nos.1 and 2 are
occupying the suit property on the basis of the document which
mentions the address of the property under transaction as “C-
49/Z-2Y” and therefore, he cannot raise the said objection
particularly when the documents relied upon by them is itself do
not specify the correct description and number of the suit
property.
84. The defendant nos.1 and 2 have never called the executant
or asked Sh. Mehfooz Ali or Sh. Kishan Lal to get the documents
ratified or the address of the property under transaction corrected.
It is highly unbelievable and improbable that defendant nos.1 and
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2 got to know about the wrong description of the property
mentioned in the afore-said documents relied upon by them as
“C-49/Z-2Y” instead of “C-49/Z-2” or “C-49/Z-2-1” only after
filing of the above-suit i.e. in the year 2010, particularly when
defendant nos.1 and 2 have already applied for the electricity
connection and water connection on the basis of the said
documents and the electricity and water bills mentions the
address as “C-49/Z-2” and not “C-49/Z-2Y”. The address on the
telephone bills is also mentioned as “C-49/Z-2”. It is pertinent to
mention here that it is the stand of defendant nos.1 and 2 that
they have seen the documents Ex.DW-1/5, Ex.DW-1/6, Ex.DW-
1/7 and Mark-B prior to entering into transaction with the brother
of Sh. Ashok Kumar Upadhyay and the said documents mention
the address of the property as “C-49/Z-2-1” and not as “C-49/Z-
2Y”. The defendant nos.1 and 2 have never approached brother
of defendant no.3 or Mehfooz Ali or Defendant no.3 to get the
documents corrected and ratified.
85. The defendant nos.1 and 2 have never approached the
brother of defendant no.3 namely Sh. Arun Kumar Upadhyay or
even defendant no.3 Sh. Ashok Kumar Upadhyay for getting the
sale deed executed in their favour in respect to the suit property
particularly when it has been averred by DW-1 that he has visited
the house of Upadhyay’s at Lucknow twice. No notice has been
served by the defendant nos.1 and 2 to defendant no.3 or his
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brother calling them to execute the sale deed of the suit property
in their favour. Admittedly, till date the defendant no.1 and 2
have not filed any suit seeking the relief of specific performance
against defendant no.3 or his brother Sh. Arun Kumar Upadhyay
before the Court of Law for getting their title complete.
86. It is noted that the documents Ex.DW-1/5, Ex.DW-1/6,
Ex.DW-1/7 and Mark-B are not the original document but the
attested copy issued by DDA. The defendant nos.1 and 2 have
not filed any copy of NCR/complaint lodged in respect to lost of
the original documents of the suit property. It is also not the case
of the defendant nos.1 and 2 that they have seen any such
complaint/NCR or they have asked for the copy of such
complaint from Sh. Arun Kumar Upadhyay. It is further
noteworthy to mention here that the original chain of title
documents have been filed by the plaintiff which means that Sh.
Arun Kumar Upadhyay was never in possession of the original
chain of title documents and he has never shown the originals to
defendant nos.1 and 2. It is highly improbable that a prudent man
without seeing the original documents can purchase an
immovable property worth in lakhs. It is pertinent to mention
here that it is a matter of caution for a buyer to make reasonable
enquiry from the Competent Authority including DDA in the
present case, about the intended property to be purchased, prior
to entering into any sale transaction particularly when the
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original chain of title documents is not shown to him or any
proof regarding their missing.
87. The defendant nos.1 and 2 have never taken any steps for
producing the originals of GPA, SPA, Will, Agreement to sell,
Receipt and Affidavit all dated 22/12/1998 for the inspection of
the court during trial. It is also noted that the afore-said
documents have been prepared on the same day but different
persons have witnessed the said documents. The GPA, SPA and
Will have been witnessed by one person i.e. Sh. Kishan Lal,
whose signatures is also appearing on the affidavit dated
22/12/1998 jointly signed by him with Mehfooz Ali. It is strange
that the Agreement to sell, receipt and Affidavit were not signed
and witnessed by Kishan Lal particularly when he put his
signatures on the GPA, SPA and Will at the time of its execution
& registrations which were also executed on the same day i.e. on
22/12/1998, when the other documents were executed. The
Receipt is signed by one Mr. Saleem and Bhura, however, their
other particulars are mentioned in the said document. The
agreement to sell is signed by only one person ‘Bhura’, however,
the particulars of the said person is also not mentioned in the said
document.
88. Sh. Kishan Lal, Sh. Saleem and Sh. Bhura are not
witnessed to all the documents or transactions mentioned in the
afore-said documents relied by defendant nos.1 and 2 particularly
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when the same were executed on the same day. The defendant
Nos.1 and 2 have not given any explanation to the same. It is
highly improbable that three individuals were present at the time
of execution of the documents i.e. GPA, SPA, Will, Agreement to
Sell, Receipt and Affidavits and they have not signed all the
documents as witnesses which means that the said documents
would have been prepared at different time and different place.
89. DW-1, DW-2 and DW-7 in their evidence affidavits stated
that the suit property was purchased in the name of defendant
no.1 for a sale consideration of Rs. 5 Lakh however, the entire
written statement is silent about the averment that the suit
property was purchased for a consideration of Rs. 5 Lakh. No
document has been produced by defendant no.1 and 2 which can
reflect that the suit property was purchased by the defendant
nos.1 and 2 for a sale consideration amount of Rs. 5 Lakh. The
entire written statement is silent about the averments that one
month prior to 22/12/1998 defendant no.2 had given/paid
Rs.2,50,000/- to Ashok Kumar Upadhyay in presence of Bhura
and Saleem Ahmad. No receipt in support of the said transaction
has been filed by the defendant nos.1 and 2. The testimony of
DW-1, DW-2 and DW-7 does not support or corroborate the said
version of payment of Rs.2,50,000/- made one month prior to
22/12/1998. DW-1 does not deposed in his evidence affidavit
Ex.DW-1/A that he paid Rs.2,50,000/- to Sh. Arun Kumar
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Upadhyay one month prior to 22/12/1998 in the presence of Sh.
Bhura and Saleem Ahmad. DW-2 does not depose in his evidence
affidavit Ex.DW-2/A that Saleem Ahmad DW-7 was present at
the time of making payment of Rs.2,50,000/- by defendant no. 2
to Sh. Arun Kumar Upadhyay one month prior to 22/12/1998.
DW-7 also does not depose in his evidence affidavit Ex.DW-7/A
that Bhura DW-2 was present at the time of making payment of
Rs.2,50,000/- by defendant no. 2 to Sh. Arun Kumar Upadhyay
one month prior to 22/12/1998. The transaction of Rs.2,50,000/-
is doubtful. The testimony of DW-1, DW-2 and DW-7 are also
contradictory on other parts. The defendant nos.1 and 2 never
pleaded that Bhura and Saleem Ahmad was present along-with
Mehfooz Ali and Kishan Lal at the time negotiation and
transaction. Moreover, it is also not the case of defendant nos.1
and 2 that Mehfooz Ali and Kishan Lal have asked the identity
proof of the person (Sh. Arun Kumar Upadhyay) in his presence
and in the presence of Bhura and Saleem Ahmad. Mehfooz Ali
has already denied the fact that the said transaction has been
taken place through him or in his presence. The defendant nos.1
and 2 have also not asked Sh. Arun Kumar Upadhyay to furnish
his identity proof to ascertain that he is actual Ashok Kumar
Upadhyay. Witnesses DW-2 and DW-7 during their cross-
examination have deposed that they have not checked the identity
proof of Sh. Arun Kumar Upadhyay for ascertaining that he is the
real and actual Ashok Kumar Upadhyay. DW-7 during his cross-
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examination deposed that he cannot tell the exact denomination
of Rs. 2,50,000/- given by defendant no.2 to Arun Kumar
Upadhyay on 22/12/1998 but the same were in the denomination
of 1000, 500 currency notes. It is worthwhile to mention here that
in the year 1998, the denomination of 1000 currency notes were
not in existence. DW-7 also deposed that the receipt dated
22/12/1998 pertains to property no. C-49/Z-2Y and not of the suit
property. DW-7 also deposed that he has not signed any
document relating to property bearing no.C-49/Z-2, Dilshad
Garden, Delhi. The testimony of DW-2 and DW-7 are not reliable
and contradictory to each other as well as not corroborative with
the version of DW-1.
90. Moreover, defendant no.1 and 2 have also not proved the
source of funds available with them for purchasing the suit
property. The defendant No.2 has not produced the documents
showing that he has sold his two vehicles; village house and a
jhuggi at Seemapuri. The defendant No. 2 has also not examined
her mother-in-law to prove that she has contributed Rs.1 Lakh for
purchasing the suit property.
91. The document/Letter dated 23/03/1987 Ex.DW-1/5 bears
the signature of Sh. Ashok Kumar Upadhyay as “Ashok Kumar
Upadhyay”. The said document and signature of Sh. Ashok
Kumar Upadhyay is part of record of Delhi Development
Authority and the said document Ex.DW-1/5 was well within the
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knowledge of defendant nos.1 and 2 when he entered into
transaction in respect to suit property with Sh. Arun Kumar
Upadhyay but even thereafter, he has not raised objection to Sh.
Arun Kumar Upadhyay for putting the signatures as “Ashok K.
Upadhyay” and not as “Ashok Kumar Upadhyay” i.e. signatures
in the similar pattern which are part of record of DDA. It is note-
worthy to mention here that the original documents GPA, SPA
and Will were taken/seized by the IO of FIR No. 111/2008
registered at P.S. Dilshad Garden vide seizure memo Ex.D1/P-A.
The specimen writing as “Ashok K. Upadhyay” was also got
obtained by the IO from defendant no.3 Sh. Ashok Kumar
Upadhyay which are Ex.D1/P-B (Colly) for sending to FSL for
comparison. As per the FSL report Ex.D1/P-E, the questioned
signatures on the documents seized vide seizure memo Ex.D1/P-
A are not found identical to the specimen signatures of Ex.D1/P-
B. The signatures of Sh. Ashok Kumar Upadhyay on the
documents Ex.PW-1/3 and Ex.PW-1/4 are not similar to the
signatures on the documents relied upon by defendant nos.1 and
2 i.e. GPA, SPA, Will, Agreement to sell, Receipt and Affidavit
all dated 22/12/1998.
92. It is not in dispute that Sh. Arun Kumar Upadhyay is the
real brother of defendant no.3 Sh. Ashok Kumar Upadhyay. The
Delhi Development Authority certainly would have executed the
conveyance deed Ex.PW-1/6 in favour of Defendant no.3 after
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verifying his identity that he is the real and actual Ashok Kumar
Upadhyay. The Sub-registrar also would have verified the
identity of defendant no.3 before registration of the conveyance
deed Ex.PW-1/6 and sale deed Ex.PW-1/1. It is also note-worthy
to mention here that it is not the case of defendant nos.1 and 2
that the person in whose favour conveyance deed Ex.PW-1/6 had
been executed by DDA and registered in the office of Sub-
registrar was not the real Ashok Kumar Upadhyay but he was
Arun Kumar Upadhyay. The defendant nos.1 and 2 have never
taken the ground in their written statement that DDA has
executed the conveyance deed Ex.PW-1/6 in the name of wrong
person.
93. It is also not in dispute that defendant no.3 had allowed his
brother Sh. Arun Kumar Upadhyay to reside in the suit property.
The defendant nos.1 and 2 have never pleaded that defendant
no.3 has authorized Sh. Arun Kumar Upadhyay to represent the
public as the owner of the suit property or authorized him to deal
with the suit property with other persons. There is no
documentary evidence or oral evidence led by defendant nos.1
and 2 which can establish that Sh. Ashok Kumar Upadhyay,
defendant no.3, has authorized and allowed his brother Sh. Arun
Kumar Upadhyay to enter into the sale transaction with other
persons/ prospective buyers representing himself to be the real
owner. In the absence of any such evidence and considering that
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no legal rights have been conferred upon Sh. Arun Kumar
Upadhyay in respect to suit property either by defendant no. 3 or
by DDA, therefore, the presence of Sh. Arun Kumar Upadhyay in
the suit property would not be more than that of a ‘permissible
user’. The defendant nos.1 and 2 have not filed any reliable,
cogent, positive and independent evidence to establish that they
have taken care to ascertain the power of the transferor Sh. Arun
Kumar Upadhyay; they have made reasonable enquiry within the
vicinity and from neighbours and they have confirmed that the
person living in the suit property is real Ashok Kumar Upadhyay
and is the actual owner of the same; and they have purchased the
suit property in good faith for a valuable consideration without
notice, from an ostensible owner. The possession of Sh. Arun
Kumar Upadhyay was of a permissible user and in a fiduciary
capacity, therefore, the provision of Section 41 of the Transfer of
Property Act, 1882 is not applicable and the defendant nos.1 and
2 cannot take the benefit of it.
94. The defendant nos.1 and 2 have failed to establish that they
are the bonafide purchaser of the suit property for a consideration
with notice because firstly, defendant nos.1 and 2 have failed to
prove the consideration amount and secondly, defendant nos.1
and 2 have not establish they have made due diligence enquiry
prior to and at the time of purchasing the suit property and was
not having notice of the fact that the real and lawful owner of the
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suit property is Sh. Ashok Kumar Upadhyay i.e. defendant no.3.
It is worth-while to mention here that defendant nos.1 and 2 have
not given any explanation or reason which prevented them from
purchasing the suit property through registered sale deed
particularly when he went to the office of Sub-registrar on
22/12/1998 for getting the GPA, SPA and Will executed and
registered.
95. The equitable doctrine of estoppel is that under Section
115 of the Indian Evidence Act it is necessary that the party
sought to be estopped should have intended that the party
pleading the estoppel should act on his representation. It is not
the defence of the defendant nos.1 and 2 that they have acted and
purchased the suit property on the representation of Defendant
no.3 Sh. Ashok Kumar Upadhyay. It is worth-while to mention
here that as per the case of defendant nos.1 and 2, they have
never met Sh. Ashok Kumar Upadhyay, the real owner prior to or
at the time of sale transaction in respect to the suit property. The
defendant nos.1 and 2 pleads that they have purchased the suit
property from Sh. Arun Kumar Upadhyay who impersonated
himself and represented that he is the actual Ashok Kumar
Upadhyay. The estoppel provided under Section 115 of the Indian
Evidence Act would not be applicable to the fact, circumstances
and material came on record because defendant nos.1 and 2 never
acted and purchased the suit property on the representation of the
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real and actual Ashok Kumar Upadhyay i.e. defendant No.3.
96. Section 43 of the Transfer of Property Act, 1882 enables a
transferee to whom a transferor has fraudulent or erroneous
representation to lay hold at his option of any interest which the
transferor may subsequently acquire in the property provided his
doing so does not adversely affect the rights of any subsequent
bonafide purchaser for value without notice. The right to obtain
relief under Section 43 of the Transfer of Property Act, 1882, is
based not on the diligence of the transferee but on the principle
that the transferor who has made an erroneous or fraudulent
representation should not be allowed to get away with it and
should be compelled to make good the bargain which it has
become possible for him later on to do subject of course to any
subsequent lawful rights. The case/defence of defendant nos.1
and 2 does not fall under Section 43 of the Transfer of Property
Act, 1882 because firstly defendant nos.1 and 2 have not
produced any cogent and reliable evidence to establish that Sh.
Arun Kumar Upadhyay have subsequently get some lawful rights
in the suit property and now he cannot be allowed to get away
with the sale transaction alleged by defendant nos.1 and 2 and
secondly, the documents i.e. GPA, SPA, Will, Agreement to sell,
Receipt and Affidavit all dated 22/12/1998 have no legal sanctity
or legal binding force, as discussed above.
97. Considering the facts and circumstances of the case,
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material came on record and above observations, this Court
concludes that defendant nos.1 and 2 have failed to discharge
their burden to prove the Issue no. 9, 11 and 12 by leading
reliable, cogent, positive and independent evidence and therefore,
Issue No.9, 11 and 12 are decided in favour of plaintiff and
against defendant no.1 and 2.
98. Issues No.1, 3 and 4 are taken up together for
adjudication:-
ISSUE NO.1:- Whether the plaintiff has purchased the suit
property from Sh. Ashok Kumar Upadhyay for lawful
consideration? OPP
AND
ISSUE NO.3:- Whether the value of the suit property at the
time of alleged sale on 05/06/2009 was Rs.7 lakhs only? OPP
AND
ISSUE NO.4:- Whether the sale deed dated 05/06/2009, is a
legally valid document? OPP
99. The onus to prove the afore-said three issues is upon
plaintiff. PW-1 deposed that he has purchased the suit property
from defendant no.3 Sh. Ashok Kumar Upadhyay for a valuable
sale consideration amount of Rs. 7 Lakh out of which he has paid
Rs. 2 Lakh through cheque and Rs. 5 Lakh in cash. The factum of
receiving sale consideration amount of Rs. 7 Lakh has not been
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disputed by the seller i.e. defendant no.3 Sh. Ashok Kumar
Upadhyay. The defendant no.3 also does not dispute execution
and registration of the sale deed Ex.PW-1/1.
100. The sale deed Ex.PW-1/1 is a registered document which
is registered in the office of Sub-registrar-VIA, Shahdara, Delhi.
The sale deed Ex.PW-1/1 mentions the value of the property as
per circle rate as Rs.6,78,000/-. The sale consideration amount
mentioned in the sale deed Ex.PW-1/1 is Rs.7 Lakh i.e. more
than the value as per circle rate prevailing at the relevant time.
The sale deed Ex.PW-1/1 mentions “True & Full market value of
the property” as Rs.7 Lakh. The Sub-registrar would have
registered the sale deed Ex.PW-1/1 after satisfying himself that
the consideration amount mentioned in the sale deed Ex.PW-1/1
is not inadequate and unlawful. The sale deed Ex.PW-1/1 also
mentions that vendor/seller i.e. defendant no.3 has admitted the
receipt of sale consideration of Rs.7 Lakh from vendee/buyer i.e.
plaintiff before the concerned Sub-registrar at the time of
presentation and registration of the said sale deed.
101. PW-1 during his cross-examination recorded on
08/09/2014 has denied the suggestion that in the year 2009, the
value of the suit property was around Rs.30 Lakh. PW-1 further
voluntarily deposed that it was around 7-8 lacs. The suggestion
has been put on behalf of defendant nos.1 and 2 that the market
value of the suit property would be around Rs. 30 Lakh in the
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year 2009 and the same was denied. The onus to prove is upon
defendant to establish that the value of the suit property was Rs.
30 lakh in the year 2009. The defendant nos.1 and 2 have not
examined any registered and authorized valuer to prove that the
valuation of the suit property was more than Rs.7 Lakh or Rs. 30
lakh in the year 2009. The defendant nos.1 and 2 have also not
produced a sale deed of the similar property in the same locality
to prove their version. No independent evidence has been led or
produced by defendant nos.1 and 2 to establish that the valuation
of the suit property is around Rs.30 Lakh in the year 2009. It is
also not the case of defendant no.1 and 2 nor has been proved
that the market rate of the immovable property in the same
locality or of the suit property is more than 4 times than of the
circle rates prevailing at the relevant time.
102. During the cross-examination of PW-1 nothing adverse has
come on record which can suggest that the valuation of the suit
property was more than Rs.7 Lakh or around Rs.30 Lakh in the
year 2009 and the sale consideration amount of Rs.7 Lakh has
not been received by defendant no.3.
103. The defendant no. 3 has neither challenged/disputed the
execution of sale deed Ex.PW-1/1 nor denied the receipt of the
sale consideration amount of Rs.7 Lakh mentioned in the said
deed. The defendant nos.1 and 2 have not filled any counter
written statement to the written statement of defendant no.3 with
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the permission of the Court. Even if the defendant no.1 and 2
averred that the consideration amount of Rs.7 Lakh was not
lawful consideration or has not been paid by plaintiff to
defendant no.3 then the burden has shifted upon defendant nos.1
and 2 when defendant no.3 admits the receipt of sale
consideration amount; and PW-1 categorically deposes in his
testimony that he has paid Rs.7 Lakh to defendant no.3 as sale
consideration amount. The defendant nos.1 and 2 were unable to
scratch out any material from the cross-examination of PW-1
which can infer that the consideration amount mentioned in the
sale deed Ex.PW-1/1 is forbidden by law and opposed to public
policy. Nothing has come on record which can establish that the
consideration mention in the sale deed Ex.PW-1/1 was unlawful.
In the absence of material to show that the sale consideration
mentioned in the Sale Deed Ex.PW-1/1 was unlawful and
opposed to public policy, the sale consideration of Rs.7 Lakh
mentioned in the sale deed Ex.PW-1/1 would be considered as
lawful.
104. As per documents Ex.PW-1/2 to Ex.PW-1/5, the suit
property has been allotted by Delhi Development Authority to
Sh. Ashok Kumar Upadhyay. The said fact is also not disputed by
defendant no.1 and 2. Considering the entire factual matrix, it is
also not in dispute that defendant no.3 is the real and actual
Ashok Kumar Upadhyay. PW-1 during his cross-examination has
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deposed that he has seen the passport, official ID Card, Bank
statement, Election Card and official documents of defendant
no.3 which are in his possession and he can file the same.
However, despite the same, Ld. Counsel for defendant nos.1 and
2 have not asked PW-1 to produced the said documents. Under
the present circumstances and in view of the judgment passed by
the Hon’ble Supreme Court of India in “Basavaraj versus
Padmavathi & Anr.” [Civil Appeal No. 8962-8963/2022 arising
out of SLP (C) No. 6122-6123/2022, Date of decision:-
05/01/2023], no adverse inference can be drawn against plaintiff
for not producing the identity cards and official documents of
defendant No.3 particularly when he was ready to produce the
same before the Court but was not called to do so.
105. The Delhi Development Authority has executed the
conveyance deed Ex.PW-1/6 which was also registered with the
Sub-registrar, only after verification and ascertaining the fact that
defendant no.3 is the same Ashok Kumar Upadhyay to whom the
suit property was allotted vide documents Ex.PW-1/2 to Ex.PW-
1/5. In the absence of any cogent material on record, it cannot be
inferred that defendant no.3 is not real and actual Ashok Kumar
Upadhyay in whose favour allotment of the suit property was
made. Moreover, it is also not the defence/case of defendant no.1
and 2 that Delhi Development Authority has allotted the suit
property to the person from whom they have purchased the suit
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property.
106. Considering the fact that the suit property was allotted by
DDA to defendant no.3 vide documents Ex.PW-1/2 to Ex.PW-1/5
in the year 1986-87 and subsequently, in the year 2007 the suit
property was also got freehold and a registered conveyance
Ex.PW-1/6 was executed in favour of defendant no.3 by DDA in
respect to suit property after receiving requisite charges and
making due verification, therefore, this Court is of the considered
opinion that defendant no.3 was a competent person to enter into
the sale transaction with plaintiff and execute the sale deed
Ex.PW-1/1 in favour of plaintiff.
107. As discussed above, the documents relied upon by
defendant nos.1 and 2 have no legal sanctity and legal binding
force therefore, it cannot be said that the execution of Sale deed
Ex.PW-1/1 would have caused injury to them. The documents
Ex.DW-6/A to Ex.DW-6/C and part of Mark-A (Colly) also
mention wrong description of the property particularly when they
got copy of chain of title documents prior to execution of the
afore-said documents and they have also applied for landline
telephone connection with MTNL. The defendant nos.1 and 2
have not given any reasonable cause or explanation regarding the
wrong description of the property in their afore-said documents.
This Court has already concluded that Sh. Arun Kumar
Upadhyay was not the ostensible owner and defendant nos.1 and
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2 are not entitled for the benefit of Section 41 of the Transfer of
Property Act, 1882. The possession of the defendant nos.1 and 2
on the suit property cannot be considered as lawful on the basis
of the documents Ex.DW-6/A to Ex.DW-6/C and part of Mark-A
(Colly). Considering the facts and circumstances of the case,
material came on record and above observations made, this Court
concludes that the execution of the sale deed Ex.PW1/1 cannot
be considered as injury to defendant nos.1 and 2 or their alleged
interest in the suit property because the afore-said documents do
not confer any right, title or interest in favour of defendant no.1
in the suit property.
108. The defendant no.1 and 2 have failed to establish that the
fraud averred by them was in active participation of defendant
no.3 or that they have acted and purchased the suit property at the
instance and representation of defendant no.3. It is note-worthy
to mention here that till date no FIR has been got lodged by
defendant nos.1 and 2 against Sh. Arun Kumar Upadhyay and
defendant no.3 regarding the fraud allegedly committed by them
upon defendant nos.1 and 2.
109. The material came on record clearly shows that defendant
nos.1 and 2 have entered into the possession of the suit property
after 22/12/1998 but defendant nos.1 and 2 have failed to prove
the transaction held between them and Arun Kumar Upadhyay
through Mehfooz Ali and Kishan Lal. The possession of Sh. Arun
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Kumar Upadhyay was of a permissible user, as discussed above,
therefore, he cannot pass the ownership rights in the suit property
to defendant nos.1 and 2 and thus, the possession of the
defendant nos.1 and 2 cannot be considered as lawful.
110. The suit property was allotted to defendant no.3 and after
getting the conveyance deed Ex.PW-1/6 executed and registered
in his favour, defendant no.3 became the absolute owner of the
suit property. The transaction of getting the suit property freehold
by defendant no.3 from DDA is not forbidden by law particularly
when the possession of defendant nos.1 and 2 in the suit property
is not lawful. Plaintiff pleads and deposed that prior to
purchasing the suit property from defendant no.3 vide registered
sale deed Ex.PW-1/1, he acted as attorney holder of defendant
vide SPA Ex.PW-1/8 and also got electricity and water
connection installed in the suit property disconnected, when
defendant nos.1 and 2 have refused to vacate the suit property.
Plaintiff was having the knowledge about the fact that the suit
property has been occupied by defendant nos.1 and 2 but even
thereafter, he has purchased the suit property. Law does not
forbid a person/buyer for purchasing a property from seller, who
does not have the physical possession or who cannot deliver the
physical possession of the said property. In such transaction, the
buyer purchases the property on his own risk. In the present case,
plaintiff has asked defendant nos.1 and 2 to show their authority
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and documents on the basis of which they are occupying the suit
property. The Defendant No.2 in his complaint Ex.DW-1/25 has
mention and admits that 6 months prior to 01/04/2008 i.e. in the
month of November, 2007, plaintiff has asked to defendant no.2
to vacate the suit property as he has fraudulently and
unauthorizedly occupying the same. It means that in the month of
November, 2007 when plaintiff have approached defendant nos.1
and 2 and asked them to vacate the suit property, he was well
aware about status of the defendant nos.1 and 2 in the suit
property. Plaintiff purchased the suit property from defendant
after considering and believing that the suit property has been
illegal, fraudulently and unauthorizedly occupied by defendant
nos.1 and 2. Law does not forbid such transactions and therefore,
it cannot be said/considered under the present facts and
circumstances that the sale deed Ex.PW-1/1 is not a legal
document particularly when the documents relied upon by
defendant nos.1 and 2 have no legal sanctity and the possession
of the defendant nos.1 and 2 in the suit property is unlawful and
without any legal right.
111. The sale deed mention that the suit property is free from all
encumbrances. The said mentioning would not affect the validity
of sale deed Ex.PW-1/1 even if defendant nos.1 and 2 were in
possession of the suit property on the date of its execution
because firstly plaintiff was aware about their status in the suit
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property prior to execution of the sale deed; secondly, the
documents of defendant nos.1 and 2 are not legally valid
documents therefore, they do not create any right of defendant
no.1 in the suit property; thirdly possession of defendant nos.1
and 2 was unlawful and unauthorized and fourthly, defendant
nos.1 and 2 have not derived any right in the suit property due to
their possession by way of adverse possession.
112. The fact mentioned in the sale deed Ex.PW-1/1 regarding
handing over the physical possession of the suit property would
also not affect the validity of the sale deed because plaintiff was
having knowledge of the fact that defendant nos.1 and 2 are in
possession of the suit property at the time of execution of sale
deed Ex.PW-1/1 and even prior to it but despite that he purchased
the suit property believing and after making enquiry that the
possession of defendant nos.1 and 2 is illegal, unlawful and
unauthorized. The said mention of the fact in the sale deed
Ex.PW-1/1 would be fatal for the plaintiff only when the
possession of defendant nos.1 and 2 on the suit property would
be legal and based on registered sale deed or that if the defendant
nos.1 and 2 would be entitled for the benefit of Section 41 of the
Transfer of Property Act, 1882; or Section 43 of the Transfer of
Property Act, 1882; or Section 115 of the Indian Evidence Act,
1872; and if defendant nos.1 and 2 have proved that they are the
bonafide purchaser of the suit property for consideration without
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notice.
113. In view of the above discussions and findings, this Court
concludes that plaintiff has purchased the suit property from Sh.
Ashok Kumar Upadhyay for lawful consideration of Rs. 7 lakh
which was the value of the suit property on 05/06/2009 and the
sale deed Ex.PW-1/1 is a legally valid document, therefore, Issue
No.1, 3 and 4 are decided in favour of plaintiff and against
defendant nos.1 and 2.
ISSUE NO.2:- Whether the whereabouts of Sh. Arun Kumar
Upadhyay, the brother of defendant no.3 are not known to the
plaintiff? OPP
114. The onus to prove this issue is upon plaintiff. The plaintiff
has to discharge the burden by proving that he is unaware about
the whereabouts of Sh. Arun Kumar Upadhyay. It has come on
record during the cross examination of PW1 that he is not aware
about the facts mentioned in the plaint prior to 2006. He further
deposed that the said facts have been told by defendant No.3 to
him which he has pleaded in the plaint. There is no material on
record which can suggest that plaintiff has ever met Sh. Arun
Kumar Upadhyay prior to execution of sale deed, at the time of
execution of sale deed and after execution of sale deed. There is
also no material on record which can infer that Sh. Arun Kumar
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Upadhyay was personally known to plaintiff. Even no question or
suggestion has been put by the Ld. Counsel for defendant No.1
and 2 from PW1 that he has met Sh. Arun Kumar Upadhyay and
he personally knew him. PW1 during his cross examination has
voluntarily deposed that he did not know anything about Sh.
Arun Kumar Upadhyay.
115. It has been argued by the Ld. Counsel for defendant No.1
and 2 that Mr. Rajeev Upadhyay, witness to the sale deed
Ex.PW1/1 is the son of Sh. Arun Kumar Upadhyay and not the
son of Sh. Ashok Kumar Upadhyay. The Ld. Counsel for
defendant No.1 and 2 has also suggested to PW1 on 08.09.2014
that Sh. Rajeev Upadhyay is the son of Sh. Arun Kumar
Upadhyay and the said suggestion was denied by the plaintiff.
PW1 has admitted that in the sale deed Ex.PW1/1, address of
defendant No.3 and Mr. Rajeev Upadhyay are different
addresses. However, he further voluntarily deposed that it is
because the identify proof of both of them were of different
addresses. Mere fact that defendant No.3 and Sh. Rajeev
Upadhyay have mentioned their different addresses in the sale
deed Ex.PW1/1, would not constitute that Sh. Rajeev Upadhyay
is the son of Sh. Arun Kumar Upadhyay. The suggestion has been
given on behalf of defendant No.1 and 2 to PW1 that Sh. Rajeev
Upadhyay is the son of Sh. Arun Kumar Upadhyay and the same
has been denied, therefore, it is upon defendant No.1 and 2 to
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produce the cogent and reliable evidence to show that Sh. Rajeev
Upadhyay is the son of Sh. Arun Kumar Upadhyay. The
defendants No.1 and 2 have not produced any cogent and reliable
evidence to establish that Sh. Rajeev Upadhyay was the son of
Sh. Arun Kumar Upadhyay and not of Sh. Ashok Kumar
Upadhyay.
116. Plaintiff/PW1 during his cross examination has deposed
that he has visited Lucknow twice or thrice and he met defendant
No.3, his wife and son at their residence at Lucknow on both the
visits. Plaintiff has never pleaded or deposed that on his visit to
Lucknow, he has met Sh. Arun Kumar Upadhyay. No suggestion
or question has been put to PW1 on behalf of defendant No.1 and
2 that PW1 on his visit to Lucknow has also met Sh. Arun Kumar
Upadhyay. The defendants No.1 and 2 have also not suggested to
PW1 that he is aware about the whereabouts of Sh. Arun Kumar
Upadhyay. It is pertinent to mention here that on 14.03.2012 the
Ld. Counsel for defendant No.3 has submitted that defendant
No.3 has already filed a complaint at P.S. GTB Enclave reporting
missing of his brother Sh. Arun Kumar Upadhyay. It is pertinent
to mention here that defendant No.1 and 2 have not got registered
any FIR or complaint case against Sh. Arun Kumar Upadhyay till
date regarding the fraud played by him upon defendant No.1 and
2. The defendant No.1 and 2 have also not placed the mobile
number/landline number of Sh. Arun Kumar Upadhyay via which
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they used to establish contact with him from Delhi for asking to
pay the arrears of electricity and water charges. The defendant
No.1 and 2 have not filed any independent evidence to establish
that defendant No.2 has twice visited at the Lucknow residence
of Sh. Arun Kumar Upadhyay asking him to pay the arrears of
electricity and water charges. No independent evidence has been
produced by defendant No.1 and 2 to establish that defendant
No.2 on his visit to Lucknow has also met Sh. Ashok Kumar
Upadhyay at the residence of Sh. Arun Kumar Upadhyay.
117. It is not the case of the plaintiff that he has personally met
Sh. Arun Kumar Upadhyay and had dealing with him at any
point of time. It is also not the case of plaintiff that he knew Sh.
Arun Kumar Upadhyay personally. No question or suggestion
has been put to PW1 on behalf of defendant No.1 and 2 during
his cross examination suggesting that he has personally met Sh.
Arun Kumar Upadhyay and he is aware about his whereabouts
and he is intentionally not disclosing the same.
118. Considering the facts and circumstances of the case,
material came on record and above observations, this Court is of
the opinion that the whereabouts of Sh. Arun Kumar Upadhyay
are not known to the plaintiff, therefore, the issue No.2 is
accordingly decided in favour of plaintiff and against defendant
No.1 and 2.
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ISSUE NO.5:- Whether the plaintiff is entitled for possession of
the suit property? OPP
119. Ld. Counsel for defendant No.1 and 2 during the course of
arguments has argued that defendant No.1 and 2 have became the
owner of the suit property by way of adverse possession. Perusal
of the record shows that the present suit has been filed on
04.09.2010. As per the defence of defendant No.1 and 2, they
have entered into the possession of the suit property on or after
22.12.1998. It means that the suit seeking the relief of possession
has been filed against defendant No.1 and 2 within twelve years
from the date on which defendant No.1 and 2 have entered into
the suit property.
120. As per complaint Ex.DW1/25, defendant No.2 has
averred/stated that prior to six months from 01.04.2008 i.e. in the
month of November, 2007, plaintiff has approached defendant
No.1 and 2 and asked them to vacate suit property stating them
that they have fraudulently occupied the suit property. In view of
the said fact itself pleaded by defendant No.2, the possession of
defendant No.1 and 2 cannot be considered as uninterrupted and
continuous and therefore, the plea of adverse possession is not
available for defendant No.1 and 2 under the present facts and
circumstances. Moreover, the defendant No.1 and 2 have not
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taken the plea of adverse possession in their written statement. It
is further pertinent to mention here that defendant No.1 and 2 on
one side claiming that they have purchased the suit property and
on the other side, they argued that they have become owner of
the suit property by way of adverse possession. The aforesaid
two pleas are destructive to each other and cannot be taken
together.
121. This Court has already concluded that the sale deed
Ex.PW1/1 is a legally valid document and plaintiff has purchased
the suit property from defendant No.3 for lawful consideration.
This Court has already concluded that the documents Ex.DW6/A
to Ex.DW6/C and part of documents Mark A(colly.) do not
confer any right, title or interest in favour of defendant No.1 and
2 in respect to suit property and the possession of the defendant
No.1 and 2 over the suit property is unlawful and without any
legal right. This Court has also decided issue No.9, 11 and 12
against defendant No.1 and 2 and has concluded that defendant
No.1 and 2 are not entitled for the benefit of Section 41 of
Transfer of Property Act; Section 43 of Transfer of Property Act
and Section 115 of Indian Evidence Act.
122. It is settled law that the registered documents would
prevail over the unregistered documents. Admittedly, the
Agreement to sell and Receipt both dated 22.12.1998 are an
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unregistered documents; General Power of Attorney and Special
Power of Attorney dated 22.12.1998 Ex.DW6/A and Ex.DW6/B
respectively do not mention about the consideration amount and
the Will Ex.DW6/C has not been proved in accordance with law.
This Court has already concluded that the aforesaid documents
relied upon by defendant No.1 and 2 have no legal sanctity and
legal binding force and does not confer any right, title or interest
in respect to suit property in favour of defendant No.1 and 2,
therefore, defendant No.1 and 2 have no right to occupy the suit
property and they are liable to vacate the same.
123. In view of the above observations, this Court concludes
that plaintiff is entitled for possession of the suit property against
defendant No.1 and 2, therefore, issue No.5 is accordingly
decided in favour of plaintiff and against defendant No.1 and 2.
ISSUE NO.6:- Whether the plaintiff is entitled for declaration as
prayed for? OPP
124. This Court has already concluded that the documents i.e.
General Power of Attorney Ex.DW6/A, Special Power of
Attorney Ex.DW6/B, Will Ex.DW6/C and Agreement to Sell,
Receipt and Affidavit all dated 22.12.1998 part of Mark A(colly.)
have no legal binding force and legal sanctity, therefore, the issue
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Page 98 of 105
No.6 is also decided in favour of plaintiff and against defendant
No.1 and 2.
ISSUE NO.7:-Whether the plaintiff is entitled for damages as
prayed for and if yes, at what rate and for what period? OPP
125. Plaintiff has claimed damages @ Rs.10,000/- per month
for the period from 10.08.2007 to 10.09.2010 which comes to
Rs.3,60,000/-. Plaintiff has also claimed damages/mesne profits
for future period @ Rs.10,000/- per month against defendant
No.1 and 2.
126. Plaintiff has filed the present suit against defendant No.1
and 2 on the strength of sale deed dated 05.06.2009 Ex.PW1/1.
Admittedly, the said sale deed was executed on 05.06.2009 which
means that plaintiff got the ownership rights in the suit property
only after execution of sale deed dated 05.06.2009, therefore, this
Court is of the opinion that plaintiff is not entitled for damages
for the period prior to filing of the present suit because firstly,
plaintiff was having no right in the suit property prior to
execution of sale deed, therefore, it cannot be said that plaintiff
was deprived from enjoying his rights in the suit property at the
hands of defendant No.1 and 2; secondly, plaintiff has not filed
the present suit being the attorney of defendant No.3; thirdly, no
covenant of sale deed Ex.PW1/1 authorize plaintiff to claim
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damages/mesne profits against defendant No.1 and 2. It is further
pertinent to mention that even plaintiff has not led any
independent evidence to establish that the suit property can easily
fetch the rent amounting to Rs.10,000/- per month during
10.08.2007 to 03.09.2010. Admittedly, plaintiff has not sent any
notice in writing to defendant No.1 and 2 after purchasing the
suit property thereby asking defendant No.1 and 2 to vacate the
suit property, therefore, plaintiff is not entitled for damages for
the period prior to filing of the present suit. However, this Court
considering that defendant No.1 and 2 are unlawfully and
without any legal right occupying the suit property despite filing
of the present suit, therefore, they are liable to pay
damages/mesne profits to plaintiff for unauthorizedly occupying
the suit property.
127. Plaintiff has not led any independent evidence to show that
the suit property can easily fetch rent @ Rs.10,000/- per month
and the prevalent market rate in the neighbourhood entitles him
to such an amount. However, regarding the amount of pendent-a-
lite and future damages, a judicial notice can be taken of the fact
that the amount of rent for various properties in and around Delhi
have been rising staggeringly. The Hon’ble High Court of Delhi
in “Vinod Khanna & Ors. versus Bakshi Sachdev (deceased)
through LRs & Ors.”- AIR 1996 (Delhi) 32″ has observed that
the judicial notice can be taken of the fact about increase of rents
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in the premises in and around, Delhi, which is a city of growing
importance being the Capital of the Country, which is a matter of
public history. In another case- “Sh. M.R. Sahni v. Mrs. Soris
Randhawa“- 2008 (104) DRJ 246, the Hon’ble High Court of
Delhi while reiterating the steep increase in the rentals in Delhi,
again emphasized that in relation to determination of mesne
profits, there is ‘always some element of guess work.’
128. The suit property is a DDA MIG Flat ad-measuring 60 sq.
meters (second floor) situated at Dilshad Garden, Delhi-110095,
therefore, this Court is of the opinion that the rate of rent of the
similar property situated at Dilshad Garden would not be less
than Rs.8,000/- per month and if the suit property would have
been let out then the same would have easily fetch a rent of
Rs.8,000/- per month. The defendant No.1 and 2 have occupied
the suit property unlawfully and without any authority despite
service of summons of the present suit, therefore, this Court is of
the opinion that defendant No.1 and 2 are liable to pay Rs.8,000/-
per month as damages/mesne profits to plaintiff from the date of
institution of the present suit till the date of handing over the
physical possession of the suit property to plaintiff. Issue No.7 is
accordingly decided in favour of plaintiff and against defendant
No.1 and 2.
ISSUE NO.8:-Whether the plaintiff is entitled for permanent
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Page 101 of 105
injunction? OPP
129. This Court has already concluded that the plaintiff has
purchased the suit property for a lawful consideration and the
sale deed Ex.PW1/1 is a legally valid document and plaintiff is
also entitled for decree of possession against defendant No.1 and
2, therefore, in order to preserve the suit property and to avoid
multiplicity of litigation, this Court is of the considered view that
injunction order is required to be passed in the present matter,
therefore, plaintiff is also granted decree of permanent injunction
against defendant No.1 and 2. Issue No.8 is accordingly decided
in favour of plaintiff and against defendant No.1 and 2.
ISSUE NO.10:- Whether the suit is liable to be dismissed for
non-joinder of Sh. Arun Kumar Upadhyay, the real brother of Sh.
Ashok Kumar Upadhyay? OPD
130. The onus to prove the present issue is upon defendant No.1
and 2. Defendant No.1 and 2 have taken the stand that the present
suit is bad for non-joinder of necessary party because plaintiff
has not impleaded Sh. Arun Kumar Upadhyay as party to the
present suit. As per the case of defendant No.1 and 2, they have
purchased the suit property from Sh. Arun Kumar Upadhyay who
represented himself to be Sh. Ashok Kumar Upadhyay. This
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Court has already concluded that defendant No.1 and 2 have
failed to produce cogent and reliable evidence to establish the
sale transaction held between them and Sh. Arun Kumar
Upadhyay. The present suit has been filed by the plaintiff against
defendant No.1 and 2 on the strength of registered sale deed
Ex.PW1/1 which has been executed by defendant No.3. It has
also come on record that Sh. Arun Kumar Upadhyay was having
no right or title or interest in the suit property. This Court has also
concluded that Sh. Arun Kumar Upadhyay is not the ostensible
owner of the suit property, therefore, defendant No.1 and 2 are
not entitled for benefit under Section 41 of Transfer of Property
Act. This Court is unable to understand that as to how Sh. Arun
Kumar Upadhyay is a necessary party to the present suit because
even in the absence of Sh. Arun Kumar Upadhyay, this Court can
pass an effective decree. It is noteworthy to mention here that if
defendant No.1 and 2 would have succeeded in proving the
transaction held between them and Sh. Arun Kumar Upadhyay
and even then they have to suffer the decree in the present suit,
then in that scenario/circumstances, defendant No.1 and 2 would
be entitled for compensation/damages against Sh. Arun Kumar
Upadhyay by filing a separate suit. The defendant No.1 and 2
have also not called Sh. Arun Kumar Upadhyay as their witness
to prove the transaction relied by them.
131. In view of the above observations, this Court is of the
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considered opinion that Sh. Arun Kumar Upadhyay is not
necessary party to the present suit and therefore, the present suit
is not bad for non-joinder of Sh. Arun Kumar Upadhyay as party
to the present suit. Issue No.10 is accordingly decided in favour
of plaintiff and against defendant No.1 and 2.
FINAL JUDGMENT.
132. In view of the above findings, the following
decrees/directions are passed which are mentioned as under:
(i) A decree of possession is passed in favour of plaintiff and
against defendant No.1 and 2 directing defendant No.1 and 2 to
vacate the suit property and hand over vacant and physical
possession of the suit property i.e. entire flat bearing No.C-49/Z-
2-1 (also known as C-49/Z-2), Pocket-C, Dilshad Garden, Delhi,
to plaintiff.
(ii) A decree of permanent injunction is passed in favour of
plaintiff and against defendant No.1 and 2 restraining defendant
No.1 and 2 from selling, transferring and creating any third party
right or interest in the suit property i.e. entire flat bearing No.C-
49/Z-2-1 (also known as C-49/Z-2), Pocket-C, Dilshad Garden,
Delhi till handing over the possession of the suit property to
plaintiff.
(iii) A money decree of damages/mesne profits @ Rs.8,000/-
per month from the date of institution of the present till the date
of handing over vacant and peaceful possession of the suit
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property to plaintiff, is also passed in favour of plaintiff and
against defendant No.1 and 2.
(iv) This Court declares that the documents i.e. General Power
of Attorney Ex.DW6/A, Special Power of Attorney Ex.DW6/B,
Will Ex.DW6/C and Agreement to Sell, Receipt and Affidavit all
dated 22.12.1998 part of Mark A(colly.) have no legal binding
force and legal sanctity in respect to suit property.
(v) Costs of the suit is also awarded in favour of plaintiff and
against defendant No.1 and 2.
(vi) Plaintiff is directed to pay the requisite court fees upon
decree of damages/mesne profits within 30 days from the date of
present judgment.
133. The suit of the plaintiff is accordingly decreed and
disposed of.
134. Upon filing of deficit court fees by plaintiff, decree sheet
be prepared.
135. File be consigned to the Record Room, after due
compliance. Digitally signed by
DEEPANKER DEEPANKER MOHAN
MOHAN Date: 2025.03.29
20:05:11 +0530
Announced in the open Court (DEEPANKER MOHAN)
on this 29th day of March, 2025 DISTRICT JUDGE-04,
SHAHDARA DISTRICT
KKD Courts, Delhi
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