Delhi District Court
Vijay Gaur vs Pradeep Bhardwaj And Ors on 22 January, 2025
IN THE COURT OF VINAY KUMAR KHANNA
PRINCIPAL DISTRICT & SESSIONS JUDGE
NORTH DISTRICT : ROHINI COURTS : DELHI
(1) In the matter of:-
CNR No. DLNT01-001750-2016
CS DJ No. 59502/2016 (Old No. 2117/2009)
Shri Rajender Bhandari
S/o Late Mohan Mal Bhandari
R/o F-97, Ashok Vihar, Phase-1,
Delhi-110052. Plaintiff
Through: Sh. Ankit Gupta,
Advocate.
Versus
1. Sh. Vijay Gaur
S/o Late M.P. Gaur Through : Sh. Rajesh Vashisht
Advocate
2. Smt. Prabha Gaur (since deceased)
W/o Vijay Gaur
Both R/o
A-1, Mahendru Enclave,
Delhi-110033.
Also at :
G-1-30, G.T. Karnal Road,
Delhi-110033.
3. Sh. Dinesh Sharma (since deceased)
S/o Late Deep Chand Sharma
R/o 39/7, Shakti Nagar,
Delhi-110007.
4. Sh. Vijender Bhandari
S/o Late Mohan Mal Bhandari
R/o A-122, First Floor, Kamla Nehru Nagar
Jodhpur, Rajasthan. Through: Sh. V.K. Jha,
Advocate.
5. Smt. Anita Jain VINAY
KUMAR
KHANNA
Digitally signed by
CS no. 59502/2016,
VINAY KUMAR
KHANNA
Date: 2025.01.23
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W/o Anil Jain
D/o M.M. Bhandari
R/o 703-AV, Odyssey, Wadala,
Bhakti Park, Wadala Estate,
Mumbai-400037.
6. Smt. Sarita Bhandari (Ex-parte vide order
23.11.2019)
W/o Shri A.M. Kothari
R/o 102, Arihant Apartment,
Pali, Marwar, Rajasthan.
SUIT FOR DECLARATION & PERMANENT
INJUNCTION
Date of institution : 09.11.2009
Date of transfer to District Court : 12.01.2016
&
(2) In the matter of:-
CNR No. DLNT01-001027-2016
CS DJ No. 57713/2016 (Old No. 1497/2010)
Sh. Vijay Gaur
S/o Late M.P. Gaur
R/o A-37, Mahendru Enclave,
Delhi-110033 Plaintiff
Through : Sh. Rajesh Vashist,
Advocate.
Versus
1. Sh. Rajender Bhandari
S/o Late Mohan Mal Bhandari
R/o F-97, Ashok Vihar, Phase-1,
Delhi-110052. Through : Sh. Ankit Gupta,
Advocate.
2. Smt. Anita Jain
W/o Anil Jain
D/o M.M. Bhandari
Digitally
signed by
VINAY
VINAY KUMAR
KUMAR KHANNA
KHANNA Date:
2025.01.23
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R/o 703-AV, Odyssey, Wadala,
Bhakti Park, Wadala Estate,
Mumbai-400037.
3. Smt. Shakuntala Bhandari
W/o Shri Anil Jain
R/o F-97, Ashok Vihar,
Phase-I, New Delhi.
SUIT FOR DECLARATION WITH
CONSEQUENTIAL RELIEF OF PARTITION,
POSSESSION & INJUNCTION
Date of initial institution : 26.07.2010
Date of transfer to District Court : 02.03.2016
&
(3) In the matter of:-
CNR No. DLNT01-001030-2016
CS DJ No. 57716/2016 (Old No. 727/2008)
Sh. Vijay Gaur
S/o Late M.P. Gaur
R/o G-1-30, G.T. Karnal Road,
Industrial Area, Delhi-110033. Plaintiff
Through :
Sh. Rajesh Vashist,
Advocate.
Versus
1. Sh. Pradeep Bhardwaj
S/o Surender Bhandari
R/o F-97, Opposite Jain Mandir
Ashok Vihar, Phase -I,
Delhi-110052. Through : Sh. Kaushalender Singh,
Advocate.
2. Sh. Vijender Bhandari
S/o Late Mohan Mal Bhandari
R/o 14/115, Housing Board,
Digitally
signed by
VINAY
CS no. 59502/2016, VINAY KUMAR
KUMAR KHANNA
KHANNA Date:
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Chaupsini, Jodhpur.
Through : Sh. V.K. Jha,
Advocate.
3. S.K. Passi (since deceased)
S/o I.D. Passi
R/o 1st Floor, F-97,
Opposite Jain Mandir,
Ashok Vihar-I, Delhi.
SUIT FOR POSSESSION OF IMMOVABLE
PROPERTY AND FOR DECLARATION
Date of initial institution : 25.04.2008
Date of transfer to District Court : 02.03.2016
Date of judgment : 22.01.2025
JUDGMENT:
1. This common judgment shall decide the
aforementioned three civil suits, all filed about 14 years
ago and during its pendency before the High Court of
Delhi, (in original jurisdiction) were clubbed together
vide order dated 02.08.2013. Subsequently, in view of
Section 4 of Delhi High Court (Amendment) Act, 2015,
the matters were transferred to District Judge (North),
Rohini Courts, Delhi, in the year 2016.
2. Brief factual matrix common in all three
cases in a chronological order is as follows : on 23 rd
January, 1973, Mohan Mal Bhandari (since deceased)
was allotted Plot No. 97, Block F, in Wazirpur
Residential Scheme, Ashok Vihar Phase I, Delhi, by the
DDA vide a Perpetual Lease Deed executed in his
favour. Mohan Mal Bhandari expired on 15 th
November, 1976 leaving behind his wife Smt. Ratan
Digitally
signed by
VINAY
CS no. 59502/2016, VINAY KUMAR
CS No. 57716/2016 KUMAR KHANNA
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Kanwar (since deceased) and four children i.e. two sons (
Rajender Kumar Bhandari and Vijender Kumar
Bhandari) and two daughters (Smt. Shakuntala Kuthari
and Smt. Anita Jain). Smt. Ratan Kanwar had also
expired on 17th September, 2005 intestate leaving behind
aforementioned four legal heirs.
3. On 19.07.2006, a family settlement (Ex. PW
1/5) was arrived amongst the legal heirs of Late Mohan
Mal Bhandari, whereby his legal heirs Smt. Shakuntala
Kothari and Anit Jain had relinquished their rights in the
suit property in favour of their brothers namely Rajender
Bhandari and Vijender Bhandari and it was further
agreed that ground floor shall be the property of
Rajender Bhandari, whereas the first floor will be the
property of Vijender Bhandari, and that second floor
with roof above became joint property of both brothers.
On 18.12.2006, mutation was effected in the record of
DDA in favour of only two brothers Rajender Kumar
Bhandari and Vijender Kumar Bhandari. On 12.06.2007,
Conveyance Deed was also executed by President of
India in their favour with respect to property in question.
4. On 29th September, 2006, Vijay Gaur issued
a legal notice (Ex. DW 1/6) to Rajender Bhandari and
Vijender Bhandari calling upon them to execute Sale
Deed to enforce agreement to sell dated 02nd March,
2006, which was replied to by Rajender Bhandari vide
Digitally
signed by
VINAY
CS no. 59502/2016, VINAY KUMAR
CS No. 57716/2016 KUMAR KHANNA
KHANNA Date:
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reply dated 06th October, 2006 (Ex. DW 1/7) and also by
Vijender Bhandari vide reply of even date (Ex. DW 1/8).
Vijay Gaur lodged a criminal complaint at PS Model
Town against Rajender Bhandari and Vijender Bhandari
on 30th October, 2006.
5. In view of non-action on the complaint
dated 30th October, 2006, Vijay Gaur filed a complaint
case before the court of Ld. Metropolitan Magistrate
against Rajender Bhandari and Vijender Bhandari,
whereupon an FIR No. 359/2007 was registered u/s
420/467/406/34 IPC at PS Model Town.
6. A suit bearing CS (OS) no. 895/2007 was
filed by Vijay Gaur seeking specific performance of an
agreement to sell executed against Rajender Bhandari
and Vijender Bhandari, wherein defendants were
restrained from alienating, transferring or creating third
party interest till the next date of hearing vide order
dated 29th May, 2007 by Hon’ble Delhi High Court.
7. Compromise took place between Vijay Gaur
and Vijender Bhandari during the pendency of the suit
no. CS (OS) No. 895/2007 and an application u/o 23
Rule 3 CPC dated 01st November, 2007 was moved. On
18th October, 2007, Vijender Kumar Bhandari executed
a Sale Deed in favour of Vijay Gaur with respect to the
first floor, which was registered as Document no. 10930
Digitally
signed by
VINAY
CS no. 59502/2016, VINAY KUMAR
KUMAR KHANNA
CS No. 57716/2016 KHANNA Date:
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in Addl. Book No. 1, Vol. No. 1429 at Pages 80-87. On
20th December, 2007, another Sale Deed with respect of
the half undivided share in portion comprising second
floor along with roof rights was also executed and
registered by Vijender Bhandari in favour of Vijay Gaur
vide Document no. 10340, Addl. Book No. 1, Vol. 1518
at Page 103-108. Thereafter, on 22 nd November, 2007,
Vijay Gaur had withdrawn his suit bearing CS (OS) No.
895/2007 in the High Court of Delhi.
Pleadings of Parties
8. Case of Rajender Bhandari in main case
bearing CS No. 59502/2016 (CS (OS) 2117/09) and
defence in case bearing CS 57713/16 (CS (OS)
1497/2010) is that after the demise of his mother, the
property in question with the consent of sisters, was
mutated in the name of Rajender Bhandari and Sh.
Vijender Bhandari, as pleaded in para 6 of his plaint. It is
further his case, as set out in para 7 of his plaint, is that
after the demise of their mother, Sh. Vijender Bhandari
entered into an agreement dated 24.09.2005, whereby
they agreed that if anyone among them wanted to sell his
share, he will first ask the other for the purchase of the
same and in case other one is not interested in
purchasing, then only he (who intends to sell his share)
will sell his share in the open market.
9. It is further the case of Rajender Bhandari
VINAY
KUMAR
KHANNA
CS no. 59502/2016, Digitally signed by
VINAY KUMAR
CS No. 57716/2016 KHANNA
Date: 2025.01.23
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that on 24.12.2005, on being offered by Vijender
Bhandari to sell his entire share in property in question,
Rajender Bhandari agreed to purchase the same for a
sum of Rs. 15,00,000/- and took the possession of the
entire property and since then he is in possession of the
entire property.
10. It is further pleaded by Sh. Rajender
Bhandari that his brother Vijender Bhandari had
promised him that he will help Rajender Bhandari in
getting the property mutated in their names in DDA
record, and they had already applied for free-hold of
property with DDA, and thereafter Sh. Vijender
Bhandari would execute a registered sale deed in his
favour.
11. It is the case of Sh. Rajender Bhandari that
aforesaid property got mutuated in favour of two
brothers Rajender Bhandari and Sh. Vijender Bhandari
on 12.06.2007, whereafter Rajender Bhandari asked Sh.
Vijender Bhandari several times for executing the sale
deeds in his favour, but his brother Sh. Vijender
Bhandari avoided the same on one pretext or the other.
12. It is further the case of Sh. Rajender
Bhandari that in the month of November, 2007, he
received summons from Hon’ble High Court in respect
of suit filed by “Vijay Gaur titled Vijay Gaur Vs.
VINAY
KUMAR
KHANNA
CS no. 59502/2016, Digitally signed by
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KHANNA
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Vijender Bhandari & Ors, bearing CS (OS) No. 895/07”,
wherein Rajender Bhandari was impleaded as defendant
no. 2 and Vijender Bhandari pleaded as defendant no. 1.
13. It is averred that one day Sh. Vijay Gaur
tried to illegally enter into the house of the plaintiff
stating that he had purchased the same from Sh. Vijender
Bhandari, but due to intervention of police, he was
stopped. It is averred that again in July, Vijay Gaur tried
to enter the suit property, showing him the sale deed
executed by Vijender Bhandari in his favour. It is
pleaded that subsequently, on enquiry, Rajender
Bhandari came to know that Vijay Gaur in connivance
with other defendants executed a forged agreement,
wherein he (Rajender Bhandari) was also made a party,
whereupon his signatures were forged and on the basis of
the same, defendants declared Vijender Bhandari as the
owner of the suit property. Thereafter, on the basis of the
said forged agreement, Vijender Bhandari in connivance
with other defendants executed false sale deeds in favour
of Vijay Gaur.
14. On behalf of Rajender Bhandari, it was
prayed that sale deeds dated 18.10.2007 and 20.12.2007
qua suit property executed by defendant no. 4 Vijender
Bhandari in favour of defendant no. 1 be declared null,
void and illegal having no force in law. He further seeks
a decree of permanent injunction for restraining the
Digitally
signed by
CS no. 59502/2016, VINAY VINAY KUMAR
KHANNA
CS No. 57716/2016 KUMAR Date:
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defendants from disturbing the possession of Rajender
Bhandari in suit property and from creating any third
party interest therein.
15. Case of Vijay Gaur in CS No. 57713/16 [CS
(OS) 1497/2010)] and CS 57716/16 [CS (OS) 727/2018],
and defence in CS 59502/16 [CS (OS) 2117/2009) are
that version of the Rajender Bhandari does not hold good
as mere execution of alleged agreement to sell dated
24.12.2005 allegedly executed between Rajender
Bhandari and his brother Vijender Bhandari does not
confer any right, title or interest of the Rajender
Bhandari in the suit property, especially when admittedly
no sale deed has ever been executed, and also keeping in
view the fact that plaintiff Rajender Bhandari and his
brother Vijender Bhandari became joint owner of the
property in question on 12.06.2007. It is submitted that
the suit of the Rajender Bhandari is not maintainable in
the present form and that no suit for specific
performance has ever been filed by Rajender Bhandari
within three years of alleged agreement to sell dated
24.12.2005. It is further submitted that Rajender
Bhandari has pleaded for the first time about execution
of alleged agreement to sell dated 24.12.2005 only on
11.12.2009 when an application under Order 1 Rule 10
CPC was moved by him seeking impleadment in Civil
Suit No. 2/2008 before Ld. Addl. District Judge, Delhi
titled as Pradeep Bhardwaj Vs. Vijender Bhandari.
Digitally
signed by
VINAY
VINAY KUMAR
CS no. 59502/2016, KUMAR KHANNA
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16. It is further pleaded by Vijay Gaur that on
02.03.2006 he entered into an agreement to sell with
Vijender Bhandari qua sale of first floor and second floor
along with roof rights for a total consideration of Rs.
90,00,000/-. However, later on, it was revealed that
Vijender Bhandari was owner only to the extent of
undivided 50% share of second floor and roof. At the
time of execution of agreement dated 02.03.2006, Vijay
Gaur had paid a sum of Rs. 2,00,000/- to Vijender
Bhandari as earnest money, and thereafter intermittently
amounts total to Rs. 17,00,000/- were paid to Vijender
Bhandari, pursuant whereto he was also delivered the
possession of first floor of suit property.
17. Since repeated requests made by Vijay Gaur
to Vijender Bhandari to execute sale deed in terms of
agreement to sell dated 02.03.2006 proved futile, Vijay
Gaur filed a suit for specific performance bearing CS
(OS) No. 895/2007. During the pendency of the said suit,
a compromise was arrived at between them and Vijender
Bhandari executed two separate registered sale deeds i.e.
first sale deed dated 18.10.2007 in respect of first floor
of suit property and second sale deed dated 20.12.2007
in respect of half undivided share of second floor along
with roof rights in suit property.
18. It is further averred by Vijay Gaur that on
Digitally
signed by
VINAY
VINAY KUMAR
CS no. 59502/2016, KUMAR KHANNA
KHANNA Date:
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28.03.2008 at about 7 PM, when he visited the suit
property for the purpose of starting some renovation
work, he was surprised to see that one Pradeep Bhardwaj
had trespassed into the first floor of suit property after
breaking open the locks installed by him. A police
complaint was lodged by Vijay Gaur in this regard. It is
pleaded that in such manner, Rajender Bhandari in
collusion with Pradeep Bhardwaj and Vijender Bhandari
succeeded in taking over the possession of first floor of
suit property illegally and unlawfully. Having left with
no other option, Vijay Gaur filed suit bearing CS (OS)
No. 727/2008 / [CS 57716/16] seeking possession
against Pradeep Bhardwaj, Vijender Bhandari and S.K.
Passi, and also lodged an FIR bearing No. 247/2009
dated 27.11.2009 with Economic Offence Wing, u/s
420/467/468/471/380/120B IPC, against Rajender
Bhandari, Vijender Bhandari, Pradeep Bhardwaj and
Sudarshan Passi. Another FIR bearing no. 359/2007
dated 01.06.2007 was registered at PS Model Town
against Rajender Bhandari and Vijender Bhandari at the
instance of Vijay Gaur.
19. Case of Pradeep Bhardwaj as set out in
Written Statement in case CS 57716/16 [CS (OS)
727/08] is that Vijender Bhandari received a sum of Rs.
15,00,000/- on two different dates i.e. Rs. 5,00,000/- on
25.03.2007 and Rs. 10,00,000/- on 14.08.2007 at the
time of handing over the possession of two rooms,
Digitally
signed by
VINAY
VINAY KUMAR
KUMAR KHANNA
CS no. 59502/2016, KHANNA Date:
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kitchen, latrine-bathroom and varanda on front side of
first floor of property in question to him and also granted
him right to collect rent @ Rs. 1400/- per month from
Sudershan Passi who was a tenant in respect of two
rooms, store, latrine-bathroom on back side of first floor.
In the meantime, since the property rates increased,
Vijender Bhandari became dishonest, and in collusion
with Vijay Gaur and Rajender Bhandari. It is further the
case of Pradeep Bhardwaj that he resided in half portion
of the property in question from August, 2007 to
December, 2008 and thereafter, he shifted to somewhere
else, as he wanted to renovate the same. Pradeep
Bhardwaj has also filed a suit for specific performance of
contract and permanent injunction. (Pertinently, the said
suit of Pradeep Bhardwaj Which could not proceed
further as agreement to sell 25.03.2007 impounded by
court on 19.03.2010 as Sh. Pradeep Bhardwaj did not
pay dues stamp duty and no steps were taken by said
Pradeep Bhardwaj in said matter.
20. Case of Vijender Bhandari as set out in
Written Statement in CS 57716/2016 (CS OS 727/08) is
to the effect that though he agreed to sell the property in
question to Vijay Gaur for a total consideration of Rs.
90,00,000/- vide agreement dated 2nd March, 2006, but
Vijay Gaur paid only Rs. 25,00,000/- to him. However,
Vijay Gaur took him (Vijender Bhandari) in confidence
and got executed sale deed dated 18 th October, 2007 in
Digitally
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his favour, and the balance amount of Rs. 65,00,000/- is
yet to be paid to him. It is submitted that though Vijay
Gaur deposited a sum of Rs. 65,00,000/- in the High
Court in a earlier suit filed for specific performance but
the same was later on withdrawn by him. It is submitted
that possession of property in question was never given
to Vijay Gaur, as it was to be given only after payment of
balance amount of Rs. 65,00,000/-, and that the alleged
possession letter was got signed by Vijay Gaur from
Vijender Bhandari to secure his money. It is submitted
that Vijender Bhandari never proclaimed himself to be
the absolute owner of in possession of first and second
floor with roof rights. At the time of execution of
agreement to sell dated 02.03.2006, the value of first
floor of property in question was Rs.90,00,000/-, but
Vijay Gaur had paid only Rs. 25,00,000/-. It is denied
that Vijay Gaur was ever in occupation or possession of
first floor of property in question.
21. Case of S.K. Passi as set out in Written
Statement in CS 57716/2016 [CS (OS) 727/08] is to the
effect that the present suit filed by Vijay Gaur is barred
by provisions of DRC Act, and is liable to be dismissed
on the ground of mis-joinder of parties as he is a tenant
of Rajender Bhandari, who had let out to him the entire
first floor of property in question. It is averred that he
had filed a suit for permanent injunction against
Rajender Bhandari, wherein Rajender Bhandari made aDigitally
signed by
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KHANNA
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statement that he would not dispossess him without
following due process of law, and the matter was
disposed off as compromised / satisfied vide order dated
08.12.2006. It is averred that he was inducted as tenant
in respect of the entire first floor of property in question
at a monthly rent of Rs. 2500/- per month. It is denied
that on any date much less on 24.11.2006, the possession
of first floor was handed over to Vijay Gaur by Vijender
Bhandari.
22. Written Statement was also filed on behalf
of defendant no. 5 Anita Jain in CS 59502/16 [CS (OS)
2117/2009] and CS 57716/16 [CS (OS) 727/08], after
her impleadment as party. She denied the exclusive
possession or ownership of Rajender Bhandari or
Vijender Bhandari qua suit property, submitting that she
being the legal heir of Late Mohan Mal Bhandari (who
died intestate) had a share in the suit property and is in
constructive possession of the same. It is further pleaded
that the sale deeds dated 18.10.2007 and 20.12.2007 are
sham documents and no consideration has been paid in
any manner by Vijay Gaur and the same have not been
signed by competent persons. It was submitted that the
alleged family agreement was never executed by her and
that same does not have any force in the eyes of law in
terms of section 17 of Indian Registration Act, 1908.
Rest of the contents of the plaint are denied by Anita
Jain. Digitally
signed by
VINAY
VINAY KUMAR
KUMAR KHANNA
KHANNA Date:
2025.01.23
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23. All the three cases were clubbed and tried
together by the Hon’ble High Court of Delhi vide order
dated 02.08.2013 and following consolidated issues were
framed :
ISSUES :
1. Whether the plaintiff (Rajender Bhandari) in
CS (OS) No. 2117/2009 is entitled to a decree of
declaration against the defendant no. 1 that the sale deed
executed in favour of defendant no. 1 in December, 2007
be declared as null, void, illegal and having no force in
law? OPP.
2. Whether the plaintiff (Rajender Bhandari) in
CS (OS) 2117/2009 is entitled to decree for perpetual
injunction restraining the defendants, their associates,
servants and employees etc from disturbing the
possession of the plaintiff and / or creating third party
interest in respect of second floor with roof rights of
property bearing Plot No. 97, Block F in Wazirpur
Residential Scheme, now known as Ashok Vihar, Phase-
I, Delhi? OPP in CS (OS) 2117/2009.
3. Whether the plaintiff (Rajender Bhandari) in
CS (OS) 2117/2009 entered into any agreement dated
24.09.2005 with his brother Shri Vijender Bhandari? If
so, its effect. OPP in CS (OS) 2117/2009.
4. Whether any deal dated 24.12.2005 was
entered into by and between the plaintiff (Rajender
Bhandari) in CS (OS) 2117/2009 and his brother Shri
Digitally
signed by
VINAY
VINAY KUMAR
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Vijender Bhandari? If so, its effect. OPD in CS (OS)
2117/2009.
5. Whether no sale consideration was paid by
the plaintiff (Rajender Bhandari) in CS (OS) 2117/2009
to Shri Vijender Bhandari as stated in paragraph 16 of
the preliminary objection? OPD in CS (OS) 2117/2009.
6. Whether the suit of the plaintiff (Rajender
Bhandari) in CS (OS) 2117/2009 is within time
prescribed by law? Onus on parties in CS (OS)
2117/2009.
7. Whether the suit of the plaintiff (Rajender
Bhandari) in CS (OS) 2117/2009 is maintainable in the
present form? OPD in CS (OS) 2117/2009.
8. Whether the suit of the plaintiff (Rajender
Bhandari) in CS (OS) 2117/009 is based on false,
frivolous and vexatious pleas which are inconsistent with
the pleas set up by the plaintiff in the previous litigation?
If so, its effect. OPD in CS (OS) 2117/2009.
9. Whether the suit is properly valued for the
purpose of court fee? OPD in CS (OS) 2117/2009.
10. Whether the plaintiff (Vijay Gaur) in CS
(OS) 1497/2010 is entitled to a decree of declaration
against the defendant to the effect that the plaintiff is a
co-owner in respect of undivided share of the second
floor along with roof rights of property bearing plot No.
97, Block F in Wazirpur Residential Scheme now known
as Ashok Vihar, Phase I, Delhi to the extent of 50%?
OPP in CS (OS) 1497/2010.
VINAY
KUMAR
KHANNA
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11. Whether the plaintiff (Vijay Gaur) in CS
(OS) 1497/2010 is entitled to a decree of partition
against the defendant in respect of 50% share of the
second floor along with roof rights of property bearing
No. Plot No. 97, Block F in Wazirpur Residential
Scheme now known as Ashok Vihar, Phase I, Delhi?
OPP in CS (OS) No. 1497/2010.
12. Whether the plaintiff (Vijay Gaur) in CS
(OS) No. 1497/2010 is entitled to a decree of possession
against the defendant in respect of 50% share of the
second floor along with roof rights of property bearing
Plot No. 97, Block F in Wazirpur Residential Scheme
now known as Ashok Vihar, Phase I, Delhi? OPP in CS
(OS) No. 1497/2010.
13. Whether the plaintiff (Vijay Gaur) in CS
(OS) No. 1497/2010 is entitled to a decree for perpetual
injunction restraining the defendant, his associates,
servants and employees etc. from selling, assigning,
parting or mortgaging or creating any charge in respect
of second floor with roof rights of property bearing plot
No. 97, Block F in Wazirpur Residential Scheme now
known as Ashok Vihar, Phase I, Delhi? OPP in CS (OS)
No. 1497/2010.
14. Whether the defendant in CS (OS) No.
1497/2010 entered into any agreement dated 24.09.2005
with his brother Shri Vijender Bhandari as stated in
paragraph 5 of the preliminary objection? If so, its
Digitally
signed by
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VINAY KUMAR
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effect? OPD in CS (OS) 1497/2010.
15. Whether any deal dated 24.12.2005 as
stated in paragraph 6 of preliminary objection by
defendant in CS (OS) 1497/2010 was entered into by and
between the defendant and his brother Shri Vijender
Bhandari? If so, its effect. OPD in CS (OS) 1497/2010.
16. Whether no sale consideration was paid by
plaintiff (Rajender Bhandari) in CS (OS) 1497/2010 to
Shri Vijender Bhandari as stated in paragraph 16 of the
preliminary objection? OPD in CS (OS) 1497/2010.
17. Whether Mr. Vijay Gaur plaintiff in CS
(OS) 727/2008 is entitled to a decree for possession
against the defendants, their associates, assignees etc.
including Shri Sudershan Passi in respect of first floor of
property bearing No. F-97, Ashok Vihar, Phase I,
Delhi-110052? OPP in CS (OS) 727/2008.
18. Whether Mr. Vijender Bhandari executed
receipts of Rs. 5,00,000/- and Rs. 10,00,000/- coupled
with handing over of alleged possession in favour of the
defendant no. 1 (Rajender Bhandari)? If so, its effect?
OPD in CS (OS) 727/2008.
19. Relief.
Separate Additional Issues in all three cases
After impleadment of defendant no. 5 in CS
59502/16 / CS OS 2117/2009, the following additional
issues were framed in this suit vide order dated
21.04.2017.
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VINAY KUMAR
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19. Whether the defendant No. 4 (Vijender
Bhandari) has any right to sell the property in question?
OPD-4.
20. Whether any Family Settlement was arrived
between the plaintiff (Rajender Bhandari) and defendant
No. 4 (Vijender Bhandari) and other co-owners of suit
property? OPD-1.
21 If yes, whether the said family settlement is
required to be compulsory registered as per Section 17 of
Indian Registration Act, 1908? OPD-1.
22. Relief
In case CS 57713/16 (CS OS 1497/2010),
after impleadment of defendant no. 2, the following
additional issues were framed by Ld. Predecessor of this
court vide order dated 21.04.2017 :
19. Whether the plaintiff Vijay Gaur has
approached this Court without disclosing the true facts
and thus has rather concealed material facts? OPD-2
Anita Jain
20. Whether plaintiff Vijay Gaur has no locus
standi to file the present suit? OPD-2 Anita Jain
21. Whether the present suit is without any
cause of action? OPD-2 Anita Jain.
22. Whether the present suit has not been
properly valued and stamped? OPD-2 Anita Jain.
23. Whether the plaintiff has not complied with
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provisions of Order VII Rule 14 and Order VII Rule 18
CPC? OPD-2 Anita Jain.
24. Whether any Family Settlement was arrived
between the plaintiff and defendant No. 2 and other co-
owners of suit property? OPD-1.
25. If yer, whether the said family settlement is
required to be compulsory registered as per Section 17 of
Indian Registration Act, 1908? OPD-1.
26. Relief.
&
In case CS 57716/16 (CS OS 727/2008),
after impleadment of defendant no. 3, the following
additional issues were framed by Ld. Predecessor of this
court vide order dated 21.04.2017 :
19. Whether the suit of the plaintiff (Vijay
Gaur) is barred by the provisions of DRC Act? OPD-3
S.K. Passi.
20. Whether the suit is bad for non-joined and
mis joinder of necessary parties? OPD-3 S.K. Passi.
21. Whether the present suit is without any
cause of action? OPD-3 S.K. Passi.
22. Whether the plaintiff has no locus standi to
file the present suit? OPD-3 S.K. Passi.
23. Relief.
24. In the present cases, Local Commissioner
was appointed by the concerned courts at the relevant
time to record evidence in the main case, to be read in all
VINAY
KUMAR
KHANNA
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the cases. First of all Rajender Bhandari entered the
witness box as PW 1 and he tendered an affidavit in
evidence as PW 1/A, and relied upon the following
documents :
S.N. Document Date Exhibit
1. Agreement / Settlement 24.09.2005 Ex. PW 1/1
2 Sale Letter 24.12.2005 Ex. PW1/2
3 Photocopy of plaint of suit - Mark PW1/A
CS(OS) No. 895/07 titled as
Vijay Gaur Vs. Vijender
Bhandari and other.
4 Photocopy of agreement 19.07.2006 Mark PW 1/B
(family settlement)
5 photocopy of sale deed dated 18.10.2007 Ex. PW 1/5
6 Photocopy of sale deed 20.12.2007 Ex. PW 1/6
7 Copy of order passed in CS 22.112007 Ex. PW 1/7
(OS) No. 895/2007.
8 Copy of order passed by 18.05.2011 Ex. PW1/8
Hon'ble High Court on
application for grant of
anticipatory bail in FIR No.
247/09
9 Copy of anticipatory bail 12.01.2009 Ex.PW1/9 and
passed by Hon'ble High Court
Ex. PW 1/11
in bail application no.
2603/2008 in FIR No. 359/07.
10. Copy of status report filed by - Ex. PW 1/10
police in bail application in
FIR No. 247/09.
25. PW 2 Pankaj Kumar Singh, Assistant
Manage, Syndicate Bank, Bhanot Building, Nangal
Raya, New Delhi produced the summoned record
comprising of statement of account of A/C No.
90192210001974, which stands in the name of Vijay
Gaur as Ex. PW2/1.
26. PW 3 Dishant Chauhan, Singh Window
Operator Grade B, Punjab National Bank, Gujrawala Digitally
signed by
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VINAY KUMAR
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Town, Delhi brought the summoned record comprising
of correspondence i.e. email dated 18.12.2019 and
19.12.2019 as Ex. PW 3/1, and statement of account of
A/C No. 1470000100079135 which stands in the name
of Vijay Gaur and Prabha Gaur along with transaction
details as Ex. PW 3/2 (colly).
27. DW 1 Sachin Oberoi, JSA LAB
(residential), DDA, INA Vikas Sadan produced
summoned record pertaining to property bearing no.
F-97, Ashok Vihar, Delhi as Ex. DW2/X (colly from
Page no. 1 to 89).
28. Vijay Gaur entered the witness box as DW 1
and tendered his affidavit in evidence as Ex. DW 1/A and
relied upon the following documents :
S.no. Document Dated Exhibit
1 Sale deed 18.10.2007 Ex. DW1/1
2 Sale deed 20.12.2007 Mark Y-1
3 Agreement to Sell 02.03.2006 Ex. DW1/3
4 Receipt 02.03.2006 Ex. DW1/4
5 Family Settlement 19.07.2006 Mark Y-4
6 Certified copy of legal notice 29.09.2006 Ex. DW1/6
7 Certified copy of reply issued 06.10.2006 Ex. DW 1/7
by Shri Yogesh Kumar Verma,
Advocarte
8 Certified copy of reply issued 06.10.2006 Ex. DW 1/8
by Shri S. D. Dixit
9 Police complaint 30.10.2006 Ex. DW1/9
10. Agreement / undertaking cum 24.11.2006 Ex. DW 1/10
receipt
11. Possession letter 24.11.2006 Ex. DW 1/11
12. Order passed by High Court in 29.05.2007 Mark Y-2
CS 895/2007
13. Certified copy of application 01.11.2007 Ex. DW 1/13
under Order 23 Rule 3 CPC
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14. Certified copy of order passed 22.11.2007 Ex. DW 1/14
by Hon'ble High Court in CS
No. 895/2007.
15. Certified copy of order passed 17.12.2008 Ex. DW 1/15
by Ld. ASJ
16. Certified copy of order passed 12.01.2009 Ex. DW 1/16
by Hon'ble High Court in Bail
Application No. 2603/2008
17. Order passed by Hon'ble High 20.01.2009 Mark Y-3.
Court in CS No. 727/2008.
29. Pradeep Bhardwaj entered the witness box
as DW 2 and tendered his evidence by way of an
affidavit Ex. DW 2/A.
30. On 30.03.2024 Vibhash Kumar Jha, Ld.
Counsel for Vijender Bhandari made a statement before
the court that he does not want to lead any evidence on
behalf of Vijender Bhandari as he is a proclaimed
offender.
31. On 15.04.2024, in view of statement made
by Smt. Anita Jain, her evidence was closed and matter
was adjourned for final arguments.
32. This court has heard lengthy arguments
advanced by Sh. Ankit Gupta, Ld. Counsel appearing for
Rajender Bhandari, Sh. Rajesh Vashist, Ld. Counsel for
Vijay Gaur, Sh. Kaushlendra Singh, Ld. Counsel for
Pradeep Bhardwaj and Sh. Vibhash Kumar Jha, Ld.
Counsel for Vijender Bhandari, and have carefully gone
through the entire evidence brought on record and the
testimony of witnesses.
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33. It is pertinent to note the legal position at
the outset in order to appreciate the submissions advance
and evidence brought on record by the parties in these
three connected cases.
Legal Standard.
34. A sale deed of an immovable property is
executed in accordance with Section 54 of the Transfer
of Property Act, 1882 (for short, ‘the 1882 Act’).
Section 54 reads as under :
54. “Sale” defined.–
“Sale” is a transfer of ownership in exchange for a price
paid or promised or part-paid and part- promised. Sale
how made.–Such transfer, in the case of tangible
immovable property of the value of one hundred rupees
and upwards, or in the case of a reversion or other
intangible thing, can be made only by a registered
instrument. In the case of tangible immovable property
of a value less than one hundred rupees, such transfer
may be made either by a registered instrument or by
delivery of the property. Delivery of tangible immovable
property takes place when the seller places the buyer, or
such person as he directs, in possession of the property.
Contract for sale.–A contract for the sale of immovable
property is a contract that a sale of such property shall
take place on terms settled between the parties. It does
not, of itself, create any interest in or charge on such
property.
35. There cannot be any dispute that normally,
on the execution of a registered Sale Deed by the owner VINAY
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of the property, the title in the property subject matter of
the Sale Deed stands transferred to the purchaser.
Considering the principles laid down in sub−section (4)
(b) of Section 55 of the 1882 Act, the seller will have a
charge over the property subject matter of the sale for
unpaid consideration and he can enforce the charge by
filing a suit.
36. The concept of cancellation of an
instrument is discussed under specific Relief. Section 31
to 33 of Specific Relief Act, 1963 deal with
“Cancellation of an Instrument”. Sec.31 of the Act
provides as to when cancellation may be ordered as
under:
(1) Any person against whom a written
instrument if void or voidable and who has
reasonable apprehension that such instrument, if
left outstanding may cause him serious injury,
may sue to have it adjudged void or voidable and
the Court may, in its discretion, so adjudge it and
order it to be delivered up and cancelled.
(2) If the instrument has been registered under
the Indian Registration Act, 1908 (16 of 1908),
the Court shall also send a copy of its decree to
the officer in whose office the instrument has
been so registered and such officer shall note on
the copy of the instrument contained in his books
the fact of its cancellation.
37. If the conditions requisite under section 31
are satisfied, the court can adjudge the instrument to be
void or voidable, and Order it to be delivered up and
cancelled. Conditions to be fulfilled for cancellation of
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VINAY KUMAR
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an instrument are :
(i) Written instrument in question must be either void or
voidable as against the plaintiff; (ii) Plaintiff must have
reasonable apprehension of serious injury from the
instrument being left outstanding; and (iii) In view of all
the circumstances of the case, the Court should consider
it reasonable and proper to administer the protective and
preventive justice asked for.
38. In Prem Singh v. Birbal (2006) 5 SCC 353,
it was held by Hon’ble Supreme Court that there is a
presumption that a registered document is validity
executed. So a registered document is prima facie valid
in law. The person who challenges it has to rebut the
presumption. In Vidyadhar v. Manikrao, (1999) 3 SCC
573, it was held by Hon’ble Supreme Court that non-
payment of a part of the sale price would not affect the
validity of the sale. Once the title in the property has
already passed, even if the balance sale consideration is
not paid, the sale could not be invalidated on this ground.
Discussion and findings on the issues are as under :
Issue 6 :
Whether the suit of the plaintiff in CS(OS)
2117/2009 is within time prescribed by law? Onus
on parties in CS(OS) 2117/2009.
39. Rajender Bhandari is seeking declaration on
the basis of an unstamped and unregistered agreement
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dated 24.09.2005, whereby it is asserted that Vijender
Bhandari (D4 in lead suit) offered his share in the suit
property to Rajender Bhandari – his brother, who agreed
to purchase the same for a sum of Rs. 15,00,000/- and
took the possession thereof.
40. On behalf of Vijay Gaur it was urged that the
alleged agreement at the best only talks about
preferential right to acquire property by Rajinder
Bhandari against 3rd party. Now the only right which
emanates from such agreement is that if Vijender
Bhandari sells his share to some other person, Rajinder
Bhandari would be entitle to institute a suit of pre-
emption against such person and to institute such suit
the period of limitation is 1 year according to Article 97
of Limitation Act,1963, which reads as under :
97. To enforce a right of pre-emption
whether the right is founded on law or
general usage or on special contract. One
year. When the purchaser take under the
sale sought to be impeached, physical
possession of the whole or part of the
property sold, or, where the subject matter
of the sale does not admit of physical
possession of the whole or part of the
property, when the instrument of sale is
registered.
41. It is submitted that in view of the same the
plaintiff in the suit no. CS 59502/16 [CS (OS)
2117/2009] is raising and claiming a time barred relief Digitally
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VINAY KUMAR
KUMAR KHANNA
KHANNA Date:
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indirectly by challenging the sale deeds validly executed
in favour of Vijay Gaur. It is submitted that alleged deal
dated 24.12.2005, has no effect on the suit property as
well as it does not create any right, title, interest, in
favour of Rajinder Bhandari as it is purportedly a
document of sale but the same is neither registered nor
stamped and is in clear violation of the mandate of
section 54 of TPA and impeaches the law laid down by
the Hon’ble Supreme Court in “‘Suraj Lamp & Industries
Pvt.Ltd, vs. State of Haryana & Anr. – 2009 (7) SCC
363″.
42. On behalf of Rajender Bhandari, it is
submitted that as soon as he came to know that Vijay
Gaur in connivance with other defendants including his
brother Vijender Bhandari executed forged documents.
He approached the court for protection of his rights /
ownership in the property in question and that the
present suit is within time prescribed by law, as the
period of limitation starts from the date as and when
Rajender Bhandari came to know about the execution of
sale deeds dated 18.10.2007 and 20.12.2007.
43. As per Section 3(1) of the Limitation Act,
1963, if any suit, appeal, or application is filed beyond
the prescribed period of limitation, the same is liable to
be dismissed even though the plea of limitation has not
been taken as a defence. Article 59 of the Limitation Act,
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1963 states that a suit for cancellation of a sale deed
must be filed within three years of the aggrieved party
becoming aware of the circumstances that entitle them to
relief.
44. This court finds no merit in the submission of
Ld. Counsel for defendant as this is not a suit for pre-
emption but for cancellation of sale deed. Admittedly, the
present case was filed on 09.11.2009. Therefore this
court finds that the suit filed by Rajender Bhandari
seeking cancellation of sale deeds dated 18.10.2007 and
20.12.2007 respectively, is within the prescribed
limitation period of three years.
This issue is accordingly decided in favour of
Rajender Bhandari (plaintiff in CS 59502/16 / CS OS
2117/2009).
Issue no. 7
Whether the suit of the plaintiff (Rajender
Bhandari) in CS (OS) 2117/2009 is maintainable
in the present form? OPD in CS (OS) 2117/2009.
45. The onus to prove the said issue was placed
upon defendant. On behalf of defendant no. 1, it is
submitted that Rajender Bhandari was supposed to file a
suit for specific performance as his case is based on
alleged unregistered agreement dated dated 24.09.2015,
whereby he claims to have purchased the share of
Vijender Bhandari in the suit property for Rs.
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15,00,000/-, as described in para no. 27 of plaint.
46. Ld. Counsel for plaintiff Rajender Bhandari
submits that Rajender Bhandari is claiming his right/title
as an “owner, occupier and resident of F-97, Ashok
Vihar, Phase -1, Delhi -52 and that is in exclusive
possession of entire building Ground Floor, First floor
and Second Floor” on the basis of two agreements i.e.
agreement dated 24.09.2005 whereby they agreed that if
anyone among them wants to sell his share, he would
first ask to the other for the purchase of the same, in case
the other one is not interested in purchasing, then the
only he (who is intending to sell his share) would sold
his share in the open Market and second agreement
dated 24.12.2005 whereby defendant No. 4 Vijender
Bhandari offered his share in the property in question to
the Plaintiff Rajender Bhandari and he had purchased
the same for Rs. 15,00,000/- and took the possession of
the suit property and that since then Plaintiff is in
possession.
47. It is argued that as per settled law an
Unregistered Agreement do not confer any right, title or
interest in favour of the plaintiff. Therefore, the
unregistered agreement / documents dated 24.09.2005
and 24.12.2005 mentioned in Plaint do not confer any
right, title or interest in favour of the Plaintiff Rajender
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VINAY
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Bhandari.
48. On behalf of defendant, it has been argued that
the plaintiff in his plaint has sought a relief of permanent
injunction and declaration, without seeking a relief of
Specific Performance despite Vijender Bhandari being
plaintiff’s real brother and with whom he claims to have
entered into above mentioned unregistered agreements /
documents dated 24.09.2005 and 24.12.2005 as the
plaintiff knew that the relief of Specific Performance is
barred by law. It is further submitted that it is well settled
position in law that “an unregistered document /
agreement to sell shall not be admissible in evidence”. It
is further submitted that as plaintiff could not succeed in
getting the relief of specific performance of such
agreement to sell as same was Unregistered he filed a
suit simplicitor for permanent injunction only. In the
present case, the plaintiff cannot get the relief indirectly
which otherwise he cannot get in a suit for specific
performance.
49. It was further argued that Rajender Bhandari
has deliberately omitted to seek other relief of specific
performance, (proviso 34 RELIEF ACT) and that
plaintiff without seeking the relief of Specific
Performance cannot seek the relief of Permanent
Injunction and Declaration against Registered Sale
Digitally
signed by
VINAY
VINAY KUMAR
CS no. 59502/2016, KUMAR KHANNA
Date:
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Deeds dated 18.10.2007 and 20,12.2007 on basis of mere
Unregistered Agreements / documents as mentioned in
the Plaint. Reliance was placed on Balram Singh Vs.
Kelo Devi 2022 SCC Online SC.
50. As per case of Rajender Bhandari the property
was got mutated in his favour and in favour of his
brother Vijender Bhandari on 12.06.2007 meaning
thereby that they both become the joint owner of the
entire undivided property in question i.e. F-97, Ashok
Vihar, Delhi, having ground floor, first floor and second
floor. During arguments Sh. Ankit Gupta Ld. Counsel for
Rajender Bhandari submitted that since the sale deed had
already been executed by Vijender Bhandari in favour of
Vijay Gaur, therefore the suit of specific performance as
regards suit property was not maintainable, and it could
only be filed seeking declaration earlier to the effect that
sale deeds were null and void.
51. In the present matter, the executant of Sale
Deeds Vijender Bhandari is not seeking cancellation of
sale deeds. Pertinently, said Vijender Bhandari’s counsel
Sh. Vibhash Kumar Jhas has been participating in the
proceedings and he even made statement on 30.03.2024
that he does not want to lead any evidence on behalf of
Vijender Bhandari. However, Rajender Bhandari is not
seeking relief of declaration that he be declared as the
Digitally
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VINAY
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owner of the portion sold by Vijender Bhandari in
favour of Vijay Gaur i.e. first floor and ½ portion of
second floor, therefore proviso 34 is not applicable to the
present suit. Suit filed by Rajender Bhandari is for
cancellation of sale deeds by a non-executant, which is
maintainable. Therefore, issue is decided in favour of
plaintiff Rajender Bhandari.
ISSUE No. 9
Whether the suit is properly valued for the purpose
of court fee? OPD in CS (OS) 2117/2009
52. The onus to prove the said issue was upon the
defendant Vijay Gaur. Ld. Counsel for Vijay Gaur during
arguments submitted that the plaintiff was not in
possession of the suit property at the time of filing of the
suit. Before filing of his suit, Hon’ble High Court in CS
(OS) No. 727/2008 i.e. CS 57716/2016 (one of the
present suit) vide Order dated 20.01.2009 was pleased to
pass an interim order directing parties concerned i.e. Shri
Pradeep Bhardwaj and Mr. S.K. Passi to maintain status
quo qua possession and title of the suit property, who
were further restrained from encumbering the property in
any manner. Therefore it is clear that Rajender Bhandari
was not in possession of the suit property at the time of
filing of suit i.e. in November 2009.
53. Law is well settled that where a person who
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has not executed a sale deed and is in possession of the
property seeks declaration, he has to merely pay a fixed
court fee under Article 17 (iii) of the Second Schedule
of Court Fees Act, 1870 (hereinafter referred to as “the
Act”). The position would be different in case the person
seeking a declaration is not in possession of the property,
then ad- valorem court fee as per Section 7 (iv) (c) of
the Act is to be paid.
54. Pertinently, in the case of Suhrid Singh @
Sardool Singh Vs. Randhir Singh & Ors (supra), the
Hon’ble Supreme Court was dealing with an issue
regarding court fee payable in regard to the prayer for
seeking declaration that sale deeds were void and were
not binding on the co- parcenery as well as for
consequential relief for joint possession and injunction.
The Hon’ble Supreme Court has observed as follows:-
“6. Where the executant of a deed wants it to be
annulled, he has to seek cancellation of the deed.
But if a non-executant seeks annulment of a deed,
he has to seek a declaration that the deed is
invalid, or non-est, or illegal or that it is not
binding on him. The difference between a prayer
for cancellation and declaration in regard to a
deed of transfer/conveyance, can be brought out
by the following illustration relating to `A’ and
`B’ — two brothers. `A’ executes a sale deed in
favour of `C’. Subsequently `A’ wants to avoid the
sale. `A’ has to sue for cancellation of the deed.
On the other hand, if `B’, who is not the executant
of the deed, wants to avoid it, he has to sue for a
declaration that the deed executed by `A’ isCS no. 59502/2016, Digitally
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invalid/void and non- est/ illegal and he is not
bound by it. In essence both may be suing to have
the deed set aside or declared as non-binding. But
the form is different and court fee is also
different. If `A’, the executant of the deed, seeks
cancellation of the deed, he has to pay ad-valorem
court fee on the consideration stated in the sale
deed. If `B’, who is a non-executant, is in
possession and sues for a declaration that the deed
is null or void and does not bind him or his share,
he has to RCA No.43/18 Runwell (India) Pvt.
Ltd. vs. Anuradha Chowdhry & Ors Page No.
10/14 merely pay a fixed court fee of Rs. 19.50
under Article 17(iii) of Second Schedule of the
Act. But if `B’, a non- executant, is not in
possession, and he seeks not only a declaration
that the sale deed is invalid, but also the
consequential relief of possession, he has to pay
an ad- valorem court fee as provided under
Section 7(iv)(c) of the Act. Section 7(iv)(c)
provides that in suits for a declaratory decree with
consequential relief, the court fee shall be
computed according to the amount at which the
relief sought is valued in the plaint. The proviso
thereto makes it clear that where the suit for
declaratory decree with consequential relief is
with reference to any property, such valuation
shall not be less than the value of the property
calculated in the manner provided for by clause
(v) of Section 7.
55. In view of the above, this court finds that suit
is properly valued for the purpose of court fees. The
issue is decided accordingly.
Issue no. 3, 4, 14 and 15.
3. Whether the plaintiff (Rajender
Bhandari) in CS (OS) 2117/2009 entered into any
agreement dated 24.09.2005 with his brother Shri Digitally
signed by
VINAY
VINAY KUMAR
KUMAR KHANNA
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KHANNA Date:
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Vijender Bhandari? If so, its effect. OPP in CS
(OS) 2117/2009.
14. Whether the defendant (Rajender
Bhandari) in CS (OS) No. 1497/2010 entered into
any agreement dated 24.09.2005 with his brother
Shri Vijender Bhandari as stated in paragraph 5 of
the preliminary objection? If so, its effect? OPD in
CS (OS) 1497/2010.
4. Whether any deal dated 24.12.2005 was
entered into by and between the plaintiff (Rajender
Bhandari) in CS (OS) 2117/2009 and his brother
Shri Vijender Bhandari? If so, its effect. OPD in CS
(OS) 2117/2009.
15. Whether any deal dated 24.12.2005 as
stated in paragraph 6 of preliminary objection by
defendant in CS (OS) 1497/2010 was entered into
by and between the defendant and his brother Shri
Vijender Bhandari? If so, its effect. OPD in CS
(OS) 1497/2010.
56. These issues being inter connected are taken
up together. In these four issues, in short, the question to
be addressed is whether Rajender Bhandari entered into
agreements dated 24.09.2005 and 24.12.2005 with his
brother Sh. Vijender Bhandari?
57. The mother of Rajender Bhandari and Sh.
Vijender Bhandari had died intestate on 17.09.2005. As
per case of Rajender Bhandari the agreement was entered
into between him and Sh. Vijender Bhandari on
24.09.2005 regarding selling of their shares and on
24.12.2005, Sh. Vijender Bhandari had offered his share
in the property, which Rajender Bhandari claims to have
purchased in a sum of Rs. 15,00,000/- and took
possession as well.
Digitally
signed by
VINAY VINAY KUMAR
CS no. 59502/2016, KHANNA
KUMAR Date:
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58. Rajender Bhandari has not specified how
much share was purchased by him, whether it was ½ th
share or ¼th share as submitted during arguments. Perusal
of material on record makes it clear that the shares of
two brothers had been ascertained. It may be noted that
admittedly, with the consent of their sisters, the property
in question had been mutated in the name of Rajender
Bhandari and Sh. Vijender Bhandari, as the case pleaded
by Rajender Bhandari himself, and this implies that both
the brothers were having equal share in the said property.
Initially, an oral family settlement took place and only
thereafter, questions of sale of shares by Vijender
Bhandari could have arisen, as per case of Rajender
Bhandari also. Now, according to Rajender Bhandari, Sh.
Vijender Bhandari, who appears to be behind the root
cause of controversy, had allegedly sold his share to
Rajender Bhandari. He allegedly also agreed to sell his
share to Pradeep Bhardwaj and agreed to sell his share of
first floor and second floor along with roof rights to
Vijay Gaur by obtaining money from all of them but fact
remains that he had executed two registered sale deeds in
favour of only Vijay Gaur.
59. The entire claim of Rajender Bhandari is
based upon two handwritten, unstamped unregistered
documents dated 24.09.2005 and 24.12.2005 i.e. Ex. PW
1/1 and Ex. PW 1/2 respectively. During his cross
Digitally
signed by
VINAY
VINAY KUMAR
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examination dated 21.02.2015 conducted on behalf of
defendants, Rajender Bhandari as PW 1 deposed that
documents Ex. PW 1/1 and Ex. PW1/2 were in the
handwriting of Vijender Bhandari and that the same do
not bear his (Rajender Bhandari’s) signature though the
same were prepared in his presence.
60. PW 1 Rajender Bhandari also deposed in his
cross examination that he did not think it necessary to
visit any deed writer / document writer for preparation of
Ex. PW 1/1, nor did he consult any lawyer whether
writing like Ex. PW 1/1 could be executed. He further
testified that perhaps, he set up document Ex. PW 1/1 in
CS 59502/16 [CS (OS) 2117/2009] for the first time.
Rajender Bhandari has categorically admitted that he had
not filed any suit for specific performance against his
brother Vijender Bhandari to get the agreement Ex. PW
1/1 executed. Strangely Rajender Bhandari deposed that
perhaps he wrote letters to Vijender Bhandari for
execution of transfer documents but he could not tell
date, month or year of those letters.
61. Perusal of documents Ex. PW 1/1 and Ex.
PW 1/2 shows that the same are drafted on plain paper,
and bear alleged signature of Vijender Bhandari and no
other person including Rajinder Bhandari, who claims to
be the beneficiary from these agreements. Vijender
Bhandari, alleged signatory of these documents, has not
Digitally
signed by
VINAY
VINAY KUMAR
CS no. 59502/2016, KUMAR KHANNA
Date:
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been got examined in court. Further, it is the own
admission of Rajender Bhandari that execution of these
agreements Ex. PW 1/1 and PW 1/2 was disclosed, by
him for the first time, while filing the present suit i.e. CS
59502/16 [CS (OS) 2117/2009) for declaration and
permanent injunction against Shri Vijay Gaur on
04.11.2009, though he had dispute with defendants
including Vijay Gaur, Vijender Bhandari since long. No
explanation has been furnished as to why he did not
disclose about those documents in previous litigations.
Further more, Rajinder Bhandari never disclosed about
this Plain Paper agreement before any other authorities
including DDA while getting property mutated in the
joint name of himself and Shri Vijender Bhandari on
12.06.2007. Even in the case CS(OS)895/2007 filed by
Shri Vijay Gaur against Vijender Bhandari and Rajinder
Bhandari for Specific Performance, or while filing his
Bail Applications before the Hon’ble High Court in the
year 2009, there is no mention about execution of any
such document. It may be noted that in the suit CS
02/2008 filed by Shri Pradeep Bhardwaj for specific
performance, Rajinder Bhandari while filing his
application under Order 1 Rule 10 CPC himself
mentioned as only a co-owner of the property along with
Shri Vijender Bhandari
62. It is apparent that documents allegedly
executed by Vijender Bhandari in favour of Rajender
Digitally
signed by
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VINAY KUMAR
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Bhandari are merely on plain papers and without paying
any stamp duty till date, and they have no legal
consequence or effect in law. Even if the contention of
Rajender Bhandari is accepted and agreement dated
24.09.2005 Ex. PW 1/1 is gone through, such document
only confers a right to preferential right to acquire
property by Rajinder Bhandari as against any other 3rd
party. The only right which emanated from such
agreement was for Rajinder Bhandari’s entitlement to
institute a suit of pre-emption against such 3rd person
within a period of one year as per Limitation Act,1963.
Admittedly, no such suit was ever filed by Rajender
Bhandari.
63. Agreement Ex. PW1/2, by any stretch of
imagination cannot be termed as agreement to sell as
neither it is signed by both parties nor has it been got
registered. Further more, it is well settled that an
agreement for sale in respect of an immovable property
does not transfer title in favour of the purchaser under
the agreement. In view of Section 54 of the Transfer of
Property Act, 1882, an agreement for sale does not
create any interest in the property. The only mode by
which an immovable property worth more than Rs.100/-
(Rupees one hundred) can be sold is by a sale deed duly
registered in accordance with the Indian Registration
Act, 1908.
Digitally
signed by
VINAY
VINAY KUMAR
KUMAR KHANNA
KHANNA Date:
2025.01.23
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CS no. 59502/2016,
CS No. 57716/2016
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64. This court is of considered opinion that
agreements dated 24.09.2005 Ex. PW 1/1 and
24.12.2005 Ex. PW 1/2 have no legal validity and it is
held accordingly. All these issues i.e. issue nos. 3, 4, 15
and 16 are decided accordingly against Rajender
Bhandari and in favour of Sh. Vijay Gaur.
Issue no. 5 :
Whether no sale consideration was paid by the
plaintiff (Rajender Bhandari) in CS (OS) 2117/2009
to Shri Vijender Bhandari as stated in paragraph 16
of the preliminary objection? OPD in CS (OS)
2117/2009.
65. The onus to prove this issue has been placed
upon defendants in CS (OS) 2117/2009. Question is
whether any sale consideration or more particularly Rs.
15,00,000/- was paid by Rajender Bhandari to his brother
Vijender Bhandari. To answer this question, one need to
go through the testimony of Rajender Bhandari.
Admittedly, no receipt qua alleged payment of Rs.
15,00,000/- by Rajender Bhandari to Sh. Vijender
Bhandari has been placed or proved on record.
66. During cross examination of Rajender
Bhandari, it remained an admitted fact by the Plaintiff
that he did not have any proof to support the claim that
he ever paid any sale consideration to Vijender Bhandari.
Further more, no registration or stamp duty has been
paid to any authorities. It has already been held above
Digitally
signed by
CS no. 59502/2016, VINAY
VINAY
KUMAR
CS No. 57716/2016 KUMAR KHANNA
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that documents Ex. agreements dated 24.09.2005 and
24.12.2005 i.e. Ex. PW 1/1 and PW 1/2 have no legal
validity and hence it is held that there is no
documentary / satisfactory evidence on record to
establish that Rajender Bhandari paid any sale
consideration to his brother Sh. Vijender Bhandari. Issue
no. 5 is accordingly decided.
Issue no. 8 :
Whether the suit of the plaintiff (Rajender
Bhandari) in CS (OS) 2117/009 is based on false,
frivolous and vexatious pleas which are
inconsistent with the pleas set up by the plaintiff in
the previous litigation? If so, its effect. OPD in CS
(OS) 2117/2009.
67. In this suit, plaintiff is seeking declaration
that sale deeds dated 18.10.2007 and 20.12.2007
executed by his brother Sh. Vijender Bhandari in favour
of Vijay Gaur with respect to his equal share in the
property in question be declared null and void. The
version of Vijay Gaur is that this suit filed by Rajender
Bhandari is false, frivolous and vexatious, pleas which
are inconsistent with the pleas set up in previous
proceedings. The main pleas, which has been taken up
on behalf of Rajender Bhandari are disputing the family
settlement on the one hand and claiming that both the
sisters as well as each of the brother were having 1/4th
share in the property but on the other hand admitting that
mutation of the property in question has been effected in
Digitally
signed by
VINAY
CS no. 59502/2016, VINAY KUMAR
KUMAR KHANNA
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favour of two brothers only in his own pleadings itself
but at the same time his contradictory version is that Sh.
Vijender Bhandari his brother sold his share to him for a
consideration Rs. 15,00,000/- vide unregistered and
unstamped document written on a plain paper, bearing
signature of only Vijender Bhandari.
68. Sh. Rajesh Vashist Ld. counsel appearing
for Vijay Gaur submitted that this alleged agreement
dated 24.12.2005 was disclosed for the first time by
Rajender Bhandari while filing his suit for declaration
and permanent injunction against Vijay Gaur after almost
four years on 04.11.2009.
69. Material on record shows that a family
settlement had occurred between brothers and sisters,
wherein two sisters Shakuntala Kothari and Anita Jain
relinquished their share and it was on the basis of this
understanding and settlement that two brothers applied
for and got the property mutated in name of two brothers
only, on 12.06.2007 and also conveyance deed later on.
Admittedly Rajender Bhandari as well as his brother Sh.
Vijender Bhandari both had executed documents
including affidavits and indemnity bonds. At page 76 of
Ex. DW2/DX1 (record produced by DDA – DW2), there
is an indemnity bond executed jointly by Rajender
Bhandari and Sh. Vijender Bhandari, wherein they
claimed that they were the only legal heirs and
Digitally
signed by
VINAY
VINAY KUMAR
CS no. 59502/2016, KUMAR KHANNA
CS No. 57716/2016 KHANNA Date:
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successors of deceased and had become co-owners in the
property in question, which was allotted to late Sh. M.M.
Bhandari, on the basis of perpetual lease deed. At page
no. 80 of Ex. DW2/DX1, there is an affidavit of
Rajender Bhandari and at page no. 83 of Ex. DW2/DX1
there is an affidavit of Sh. Vijender Bhandari, wherein
they had mentioned only their names i.e. Rajender
Bhandari and Sh. Vijender Bhandari as legal heirs.
These documents had been attested on 18.10.2006.
Neither of the sister has chosen to enter the witness box
to claim their share in the suit property. Therefore, this
fact supports the factum of pre-existence of family
settlement. The court has to consider the totality of facts
and circumstances, the conduct of the parties and pre-
ponderance of probabilties and Rajender Bhandari
cannot be allowed to blow cold and hot in the same
breath.
70. It has already been held above that the
documents Ex. PW1/1 and PW 1/2, upon which the case
of the plaintiff hings, do not have any legal validity,
being unstamped and unregistered. It is also noted that
suit CS No. 59502/2016 has been filed after about one
year of filing of the suit CS No. 57716/2016, wherein
Rajender Bhandari, for the first time has come up with
purported agreements dated 24.09.2005 and 24.12.2005.
Further more, admittedly no suit for specific
performance has been filed by Rajender Bhandari till
Digitally
signed by
VINAY
CS no. 59502/2016, VINAY KUMAR
CS No. 57716/2016 KUMAR KHANNA
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date. All these facts establish that Rajender Bhandari has
not been able to show any fraud or foul play on the part
of Vijay Gaur. Accordingly, it is held that suit no. CS
59502/16 [CS (OS) 2117/2009] is based on inconsistent
and false pleas.
This issue no. 8 is decided accordingly
against Rajender Bhandari and in favour of Vijay Gaur.
Issue no. 18 :
Whether Mr. Vijender Bhandari executed receipts
of Rs. 5,00,000/- and Rs. 10,00,000/- coupled with
handing over of alleged possession in favour of
the defendant no. 1 (Pradeep Bhardwaj)? If so, its
effect? OPD in CS (OS) 727/2008.
71. The version of Pradeep Bhardwaj is to the
effect that in the year 2007, on coming to know that
Vijender Bhandari wanted to sell first floor of the suit
property, approached him for purchasing the same and
after negotiations, Vijender Bhandari agreed to sale the
said floor to him for a sum of Rs. 18,00,000/- on
25.03.2007, and he executed one earnest money / bayana
receipt after receiving of Rs. 5,00,000/- in cash out of
total consideration amount of Rs.18,00,000/- in the
presence of two witnesses. Vide said agreement Vijender
Bhandari had undertaken that he would first get the
property mutated in his name in the record of DDA and
after completion of all the formalities in DDA, the
balance payment of Rs. 13,00,000/- shall be paid by the
Pradeep Bhardwaj to Vijender Bhandari. Digitally
signed by
VINAY
VINAY KUMAR
KUMAR KHANNA
KHANNA Date:
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72. It is submitted that as per the family
settlement dated 19.07.2006, Vijender Bhandari became
the owner of the first floor of suit property, which
supports the version of Vijay Gaur as well. Subsequently,
the conveyance deed dated 12.06.2007 was executed in
favour of Rajender Bhandari and Sh. Vijender Bhandari.
The version of Pradeep Bhardwaj is that on 14.08.2007,
he paid Rs. 10,00,000/- to Sh. Vijender Bhandari against
a receipt cum possession letter executed by Vijender
Bhandari in favour of Pradeep Bhardwaj in the presence
of two witnesses, wherein Sh. Vijender Bhandari handed
over the actual possession of two rooms, kitchen and
latrine, bathroom and varandah on the front side of first
floor of suit property and constructive possession of two
rooms, store and latrine, bathroom on back side of first
floor being given to Pradeep Bhardwaj along with right
to collect the rent from tenant @ 1400/- per month who
is occupying the said back portion with effect from
01.09.2007 as the said tenant was earlier in tenancy in
the entire first floor much prior to 25.03.2007 @ Rs.
2500/- per month and thereafter, the said tenant
Sudarshan Passi started paying rent to Pradeep Bhardwaj
regularly @ Rs. 1400/- per month.
73. It is further his case that Pradeep Bhardwaj
resided in the said property from 14.08.2007 till
December, 2007. Thereafter, Sh. Pradeep Bhardwaj
Digitally
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made several request to Sh. Vijender Bhandari to
execute the registered sale deed in his favour, but to no
avail. On 13.12.2007 at about 07:50 pm Pradeep
Bharadwaj received a threatening call from Vijender
Bhandari to dispossess him from the suit premises
forcibly, upon which Pradeep Bhardwaj made a written
complaint to P.S. vide DD No. 62B, dated 13.12.2007
qua that incident. Having left with no other option,
Pradeep Bharadwaj filed a suit titled as “Pradeep
Bhardwaj Vs Vijender Bhandari” vide CS No. 02/2008
before Ld. ADJ, Tis Hazari Court, Delhi, wherein
Vijender Bhandari appeared and admitted the possession
of Pradeep Bhardwaj in the first floor of F-97, Ashok
Vihar, Phase 1, Delhi and on the basis of the same, status
quo order as regard suit property was passed.
74. Subsequently, in the said suit, the concerned
court directed Sh. Pradeep Bhardwaj to pay the stamp
duty on the documents upon which Pradeep Bhardwaj
relied vide order dated 19.03.2010 and also impounded
the documents. The said order was challenged by the
Pradeep Bhardwaj before Hon’ble High Court of Delhi
vide CM(M No. 587/2010 and CM No. 799/2010 but
same was upheld vide order dated 01.11.2011 and
thereafter suit filed by Pradeep Bhardwaj was dismissed
as non-prosecution vide order dated 07.07.2012.
75. Pradeep Bhardwaj has neither paid requisite
VINAY
KUMAR
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KHANNA
Date: 2025.01.23
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stamp duty nor took any steps for revival of his said case
since more than 12 years. Therefore, now indisputably,
there is no legal claim of Pradeep Bhardwaj in the suit
property and he cannot get any relief in the face of duly
registered sale deeds of the portion of property in favour
of Vijay Gaur.
76. Pradeep Bhardwaj in his deposition as DW2
placed on record copies of the receipts as Ex. DW 2/1
and DW 2/2. Scrutiny of the said receipts shows that
both the said receipts are allegedly signed by Sh.
Vijender Bhandari and two witnesses Vipin Kumar and
Surinder Bhardwaj and are not signed by Sh. Pradeep
Bhardwaj, who made the alleged payments of Rs.
5,00,000/- and Rs. 10,00,000/-. The said documents are
unstamped and unregistered, and as discussed above, the
same do not have any validity in the eyes of law. None of
signatures of said receipts have been got examined. In
the result, payment of said amount by Pradeep Bhardwaj
to Vijender Bhandari is not proved on record. However,
he could have exercised his right to recover his money
from Vijender Bhandari but it appears no steps are taken
by him till date in that regard.
Accordingly, this issue no. 8 is decided
against Pradeep Bhardwaj.
Issue no. 19, 20 and 21 CS 59502/16 (CS (OS)
2117/2009 and Issue no. 24 and 25 in CS 57713/16 (CS
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OS 1497/2010)
19. Whether the defendant No. 4 (Vijender
Bhandari) has any right to sell the property in
question? OPD-4.
20. Whether any Family Settlement was
arrived between the plaintiff (Rajender Bhandari)
and defendant No. 4 (Vijender Bhandari) and
other co-owners of suit property? OPD-1.
21 If yes, whether the said family
settlement is required to be compulsory registered
as per Section 17 of Indian Registration Act,
1908? OPD-1.
24. Whether any Family Settlement was
arrived between the plaintiff and defendant No. 2
and other co-owners of suit property? OPD-1.
25. If yes, whether the said family
settlement is required to be compulsory registered
as per Section 17 of Indian Registration Act,
1908? OPD-1.
77. These issues are being taken up together
being interconnected and related to the validity of family
settlement dated 19.07.2006 Ex. PW 1/5. The onus to
prove the issue no. 19 was placed on defendant no. 4 Sh.
Vijender Bhandari, who chose not to enter the witness
box. As regards, issue no. 20 the onus to prove the said
issue was placed on Vijay Gaur, who claimed that after
Vijender Bhandari became the sole owner of first floor
and ½ undivided portion of second floor with roof rights,
he purchased the same from Vijender Bhandari. It is to
be noted that these issues were not framed initially
CS no. 59502/2016, Digitally
signed by
CS No. 57716/2016 VINAY VINAY KUMAR
KHANNA
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KHANNA 2025.01.23
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during its pendency in the Hon’ble High Court vide
order dated 02.08.2013 and these issues were framed
only after defendant Anita Jain (sister Rajender Bhandari
and Vijender Bhandari) was impleaded. Surprisingly,
though Anita Jain placed on record her affidavit in
evidence dated 07.01.2020 but she chose not to enter the
witness box for the reasons best known to her and it
remained a case of no evidence on her part. In fact, both
sisters of Rajender Bhandari have not chosen to depose
against Vijay Gaur which substantiate the case regarding
their family settlement. It is actually on the basis of this
family settlement that the property was got mutated by
both brothers namely Rajender Bhandari and Vijender
Bhandari in their names before DDA and said mutation
has never been challenged by them. It has already been
discussed above that no suit to question it has ever been
filed by any party having interest in the said family
settlement.
78. Now, the question is whether the said family
settlement is required to be compulsory registered per
Section 17 of Indian Registration Act, 1908? Section 17
reads as under :
17. Documents of which registration is
compulsory.–(1) The following documents
shall be registered, if the property to which they
relate is situate in a district in which, and if they
have been executed on or after the date on
which, Act No. XVI of 1864, or the Indian
Registration Act, 1866, or the Indian Registration
Act, 1871, or the Indian Registration Act, 1877,
Digitally
signed by
VINAY VINAY KUMAR
CS no. 59502/2016, KHANNA
KUMAR Date:
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or this Act came or comes into force,
namely:–
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which
purport or operate to create, declare, assign, limit
or extinguish, whether in present or in future,
any right, title or interest, whether vested or
contingent, of the value of one hundred rupees
and upwards, to or in immovable property;
(c) non-testamentary instruments which
acknowledge the receipt or payment of any
consideration on account of the creation,
declaration, assignment, limitation or extinction
of any such right, title or interest; and
(d) leases of immovable property from year to
year, or for any term exceeding one year, or
reserving a yearly rent;
1[(e) non-testamentary instruments transferring
or assigning any decree or order of a Court or
any award when such decree or order or award
purports or operates to create, declare, assign,
limit or extinguish, whether in present or in
future, any right, title or interest, whether vested
or contingent, of the value of one hundred rupees
and upwards, to or in immovable property:]
79. This court finds that a family settlement was
arrived at between the legal heirs of late M.M. Bhandari,
and Vijender Bhandari had a right to sell the property in
question, which he actually sold to Vijay Gaur on the
basis of due mutation as well as conveyance deed
existing in his favour and non-registration of family
settlement reduced in writing later on has no effect on
the right, title and interest of Vijay Gaur.
These issues no. 19, 20, 21, 24 & 25 are
decided against Rajender Bhandari and in favour of
Vijay Gaur.
Digitally
signed by
VINAY
CS no. 59502/2016, VINAY KUMAR
KUMAR KHANNA
CS No. 57716/2016 KHANNA Date:
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ISSUES No. 19, 20, & 21 in CS 57713/16 (CS OS
1497/2010)
19. Whether the plaintiff Vijay Gaur has
approached this Court without disclosing the true
facts and thus has rather concealed material facts?
OPD-2 Anita Jain
20. Whether plaintiff Vijay Gaur has no
locus standi to file the present suit? OPD-2 Anita
Jain
21. Whether the present suit is without any
cause of action? OPD-2 Anita Jain.
80. These issues are taken up together being
inter linked, having been framed only after impleadment
of sister Anita Jain. As noted above, though Anita Jain
had placed on record her affidavit in evidence, but chose
not to enter the witness box to tender her affidavit in
evidence and she did not subjected herself to cross
examination. Therefore, Anita Jain has failed to establish
her assertions / pleadings.
81. Vijender Bhandari has executed two
registered sale deeds dated 18.10.2007 and 20.12.2007 in
favour of Vijay Gaur thereby selling the first floor and
50% undivided portion of second floor with roof rights.
The contention raised on behalf of Anita Jain to the
effect that Vijay Gaur approached this court without
disclosing the true facts and thus has concealed material
facts has no merits. Further more, this court is of the
CS no. 59502/2016, Digitally
signed by
CS No. 57716/2016 VINAY VINAY KUMAR
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considered opinion from the evidence on record and
foregoing discussion that Vijay Gaur has locus standi to
file the present suit seeking declaration with
consequential relief of partition, possession & injunction.
Accordingly, these issues i.e. issue nos. 19,
20, 21 are decided in favour of Vijay Gaur and against
Anita Jain and Rajender Bhandari.
Issue no. 22 in CS 57713/16 (CS OS 1497/2010)
22. Whether the present suit has not been
properly valued and stamped? OPD-2 Anita Jain.
82. This court finds from evidence on record
and in view of my findings on issue no. .. that suit has
been properly valued and that Anita Jain has failed to
discharge her onus. This issue is decided accordingly
against her.
Issue no. 23 in CS 57713/16 (CS OS 1497/2010)
Whether the plaintiff has not complied with
provisions of Order VII Rule 14 and Order VII Rule
18 CPC? OPD-2 Anita Jain.
83. The onus to prove this issue was on Anita
Jain. She has failed to discharge her onus as no evidence
was led by her. She has failed to establish as to how the
plaintiff has not complied with the procedural provision
u/O VII Rule 14 CPC. Order VII Rule 14 CPC relates
with production of documents, and the court can grant
the leave to produce the documents, which are not listed
Digitally
signed by
CS no. 59502/2016, VINAY
CS No. 57716/2016 VINAY KUMAR
KUMAR KHANNA
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at the time of presentation of the plaint. Order VII Rule
18 CPC has been ommitted by the Act 22 of 2002.
Accordingly, this issue is decided against
Anita Jain and in favour of Vijay Gaur.
Issue no. 19, 20, 21 and 22 in CS 57716/16 (CS OS
727/2008)
19. Whether the suit of the plaintiff (Vijay
Gaur) is barred by the provisions of DRC Act?
OPD-3 S.K. Passi.
20. Whether the suit is bad for non-joined
and mis-joinder of necessary parties? OPD-3
S.K. Passi.
21. Whether the present suit is without any
cause of action? OPD-3 S.K. Passi.
22. Whether the plaintiff has no locus standi
to file the present suit? OPD-3 S.K. Passi.
84. These issues were framed on 21.04.2017
and onus to prove these issues was on Sh. S.K. Passi.
However, no evidence has been led by Sh. S.K. Passi or
any of his LRs as Sh. S.K. Passi is stated to have
expired. In the absence of any evidence on these issues,
the same are decided in favour of Vijay Gaur and against
the dednfant.
Issue no. 1 and 2 :
1. Whether the plaintiff (Rajender Bhandari) in
CS (OS) No. 2117/2009 is entitled to a decree of
declaration against the defendant no. 1 that the
sale deed executed in favour of defendant no. 1 in
December, 2007 be declared as null, void, illegal
Digitally
signed by
VINAY
VINAY KUMAR
CS no. 59502/2016, KUMAR KHANNA
KHANNA Date:
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and having no force in law? OPP.
2. Whether the plaintiff (Rajender Bhandari)
in CS (OS) 2117/2009 is entitled to decree for
perpetual injunction restraining the defendants,
their associates, servants and employees etc from
disturbing the possession of the plaintiff and / or
creating third party interest in respect of second
floor with roof rights of property bearing Plot No.
97, Block F in Wazirpur Residential Scheme, now
known as Ashok Vihar, Phase-I, Delhi? OPP in CS
(OS) 2117/2009.
85. These issues are regarding entitlement of
decree by Rajender Bhandari with respect to sale deed
executed in December 2007. In the prayer clause 28 (a),
the sale deeds are dated 18.10.2007 and 12.12.0007 are
described. Plaintiff is seeking declaration that the sale
deeds dated 18.10.2007 and 20.12.2007, which are in
respect of first floor and 1/2 portion of second floor, be
declared null and void.
86. The basis of the suit of the plaintiff Rajender
Bhandari was that in June, 2007, entire property had
been mutated in the name of two brothers Vijender
Bhandari and Rajender Bhandari and they jointly applied
for conversion of property from lease hold to free hold,
and Vijender Bhandari sold the property to Rajender
Bhandari on 24.12.2005. He had agreed to execute the
necessary documents after property had become
freehold. But instead of executing sale deed in favour of
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signed by
VINAY
CS no. 59502/2016, VINAY KUMAR
CS No. 57716/2016 KUMAR KHANNA
KHANNA Date:
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Rajender Bhandari, he executed sale deed in favour of
Vijay Gaur with respect of first floor and ½ portion of
second floor.
87. It is further case of Rajender Bhandari that
Vijay Gaur in connivance with other defendants
including Vijender Bhandari executed a forged
documents, in which they made plaintiff a party and
forged his signatures, and with the help of forged
document, defendant Vijender Bhandari was declared as
owner of suit property.
88. In para no. 20 of the plaint, Rajender Bhandari
has pleaded about execution of a forged agreement,
wherein he was made a party and that the defendants had
forged his signatures and with the help pf that forged
documents, defendants declared defendant no. 4 Vijender
Bhandari as owner of the suit property.
89. During arguments, it was submitted on behalf
of Rajender Bhandari that this forged documents was
actually a family settlement dated 19.07.2006, on the
basis of which Vijender Bhandari was declared as owner
of first floor and ½ portion of second floor, and Rajender
Bhandari was declared as owner of ground floor and ½
portion of second floor. On asking, during arguments, it
was submitted that at the time of filing the suit Rajender
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CS No. 57716/2016 VINAY KUMAR
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KHANNA Date:
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Bhandari was not aware as to which was the forged
document or whether this forged document was a family
settlement.
90. It is found false on the face of record that
Rajender Bhandari was not aware family settlement.
Admittedly, in plaint Rajender Bhandari has not
disclosed when he had come to know about the alleged
forged document / family settlement.
91. Sh. Ankit Gupta, Ld. counsel submitted that
Vijender Bhandari – brother of Rajender Bhandari was
not competent to execute sale deeds and that this fact
was in the knowledge of buyer Vijay Gaur. This court
finds no merit in the contention of Sh. Ankit Gupta, Ld.
Counsel appearing for Rajender Bhandari that doctrine
of lis-pendeus applies. Vijay Gaur purchased the
property during pendency of said suit by virtue of the
sale deed from Sh. Vijender Bhandari in breach of status
quo order in the suit CS (OS) No. 895/2007 seeking
specific performance of agreemtn with Vijender
Bhandari filed by Vijay Gaur in May, 2007, vide order
dated 29.05.2007 Hon’ble High Court has restrained the
defendants from alienating transferring or creating any
third party right or parting with the possession till next
date of hearing. On the next date i.e. 13.06.2007, when
the case was again taken up it was mentioned that loans
Digitally
signed by
VINAY
CS no. 59502/2016, VINAY KUMAR
CS No. 57716/2016 KUMAR KHANNA
Date:
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were being arranged and plaintiff was asked to deposit
the balance amount of Rs. 43,00,000/- within two weeks
and matter was listed on 05.07.2007. Parties Vijay Gaur
and Sh. Vijender Bhandari were negotiating settlement
and Sh. Kamal Mehta, Ld. counsel for defendant no. 2
Rajender Bhandari had also appeared in the court on
22.11.2007 during the pendency of application u/O
XXIII Rule 3 CPC, Hon’ble High Court declined to gave
any time stating that application did not relate to him and
that if he had any remedy in law, he could pursue the
same and the application u/o XXIII Rule 3 CPC filed
jointly by Vijay Gaur and Vijender Bhandari was
allowed and suit CS (OS) 895/2007 was dismissed as
withdrawn.
92. Perusal of record shows that notice dated
29.09.2006 Ex. DW 1/6 was given by Vijay Gaur to both
Rajender Bhandari and Vijender Bhandari, which was
replied by them vide reply dated 06.10.2006 (Ex. DW
1/7) by Rajender Bhandari and reply dated 06.10.2006
(Ex. DW1/8) by Vijender Bhandari. On receipt of the
notice, Vijay Gaur lodged a complaint dated 30.102006
with SHO PS Model Town against Vijender Bhandari,
Rajender Bhandari, as well as two sisters Anita Jain,
Shakuntala and Sandhya Jain wife of Vijender Bhandari,
regarding cheating and forgery, whereupon an FIR
359/07 was registered u/s 420/120 B IPC. Charge-sheet
in the said FIR was filed, and during trial Vijender
Digitally
signed by
CS no. 59502/2016, VINAY
CS No. 57716/2016 VINAY KUMAR
KUMAR KHANNA
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Bhandari has been declared as proclaimed offender,
whereas Rajender Bhandari was discharged, and the said
discharge order was challenged by Vijay Gaur, but
upheld by Ld. Sessions Court. The observation made by
the court in criminal proceedings at the stage of bail or
charge cannot be given much weight in tilting the
balance in a civil proceeding as standard of proof are
totally different. DW 2/X is the record of DDA as
regards mutation of property in the name of Rajender
Bhandari and Vijender Bhandari. It is pertinent to note
counsel Sh. Vibhash Kumar Jha had been appearing for
Vijender Bhandari, who informed the court that Vijender
Bhandari is proclaimed offender in criminal proceedings
pending against him.
93. It was pointed out that in mutation proceedings
in the name of Vijender Bhandari and Rajender Bhandari
indemnity bond was also executed jointly by Rajender
Bhandari and Vijender Bhandari apart from affidavits. In
the affidavits, it is also mentioned that late M.M.
Bhandari left behind Rajender Bhandari and Vijender
Bhandari and they had no objection in case mutation is
cancelled in case of concealment of facts. If facts were
concealed, those were concealed by both brothers in
collusion with each other.
94. The contention raised on behalf of Rajender
Digitally
signed by
VINAY
CS no. 59502/2016, VINAY KUMAR
KUMAR KHANNA
CS No. 57716/2016 Date:
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Bhandari that on the specimen signatures of Rajender
Bhandari, photograph of Vijender Bhandari is pasted
and similarly above the specimen signature of Vijender
Bhandari, photograph of Rajender Bhandari is pasted,
does not suggest any foul play as indisputably these are
signatures and photographs of two brothers only and not
of any third person. Mutation letter dated 18.12.2006 is
Ex. DW 2/X1, vide which property was mutated in the
name of Rajender Bhandari and Vijender Bhandari.
Further the contention raised by Ld. Counsel for
Rajender Bhandari that Vijender Bhandari had obtained
signatures of Rajender Bhandari on blank papers for
mutation purpose has not been established by any cogent
evidence and the same appears to be after thought
unworthy of any credibility.
95. Rajender Bhandari had been summoned in the
matter in IA No. 895/2007 in May 2010, filed on
10.05.2007 along with list of document and in list at
serial No. 4 is copy of family settlement dated
19.07.2006 alleged to have been executed between legal
heirs of deceased Rajender Bhandari. Pertinently, he in
his own pleadings referred above, admitted that there
was an oral settlement.
96. It is to be further noted that Rajender Bhandari
has not specified the date of his knowledge of this
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signed by
VINAY
CS no. 59502/2016, VINAY KUMAR
CS No. 57716/2016 KUMAR KHANNA
KHANNA Date:
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alleged family settlement / deed and has not specified the
same in the plaint. It is also the admitted fact that in CS
57713/16 (CS OS 1497/2010) filed by Vijay Gaur
against Rajender Bhandari, written statement was filed
wherein copy of family settlement was attached and the
list of documents in the index at page No. 38-40.
97. Indisputably, Rajender Bhandari or other LRs
have not sought any declaration for cancellation of the
family settlement dated 19.05.2006 but the edifice of
their claim seeking declaration for cancellation of sale
deed, is based on the challenge to said family settlement.
In Para No. 6 of the plaint, it is pleaded that after the
demise of the mother, the property was mutated in the
name of plaintiff Rajender Bhndari and defendant No. 4
Vijender Bhandari with the consent of the sisters.
Submission on behalf of counsel for Rajender Bhandari
is that three LRs namely Rajender Bhandari, Smt.
Shakutnala and Smt. Anita Jain have disputed the fact of
family settlement. However, their LRs namely Smt.
Anita Jain, Smt. Shakuntala and Sh. Vijender Bhandari
have chosen not to enter in the witness box to dispute the
family settlement.
98. Admittedly, Smt. Shakuntala Kothari one of
the daughter / LR of late M.M. Bhandari never appeared
in any of the case despite service of publication and was
proceeded ex parte. Further more, Anita Jain second
Digitally
signed by
VINAY
CS no. 59502/2016, VINAY KUMAR
KUMAR KHANNA
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daughter of late Sh. M.M. Bhandari appeared and filed
written statement in one of the cases but she has not
adduced any evidence. Smt. Anita Jain had filed her
response dated 25.05.2024 to the application seeking
interrogatories filed on 29.04.2024 and it is a matter of
record that in her reply to the interrogatory, Anita Jain
stated that based on trust of her brother Rajender
Bhandari, she signed on papers / family settlement.
99. PW 1 Rajender Bhandari during his cross-
examination dated 02.05.2015 has admitted impression
of his signature at point ‘X’ on page No. 1 of the
photocopy of family settlement marked as Mark PW1/B,
but disputed his signatures at point ‘Y’ and ‘Z’ on page
No. 2 and 3. PW 1 deposed that in the said family
settlement, it was written that “after the death of our
father, property devolved upon my mother, two brothers
and two sisters”. Further it was testified that “after the
death of my mother, the property devolved upon both the
brothers and both the sisters”. It was mentioned that
“Vijender Bhandari would obtain signatures of both the
sisters for transfer of property in favour of both the
brother”. The settlement also mentioned that if any
brother wanted to sell his share, he would sell the same
in favour of other brother and in case the property was to
be sold to outsider, that brother would obtain NOC from
the other brother.” VINAY
KUMAR
KHANNA
Digitally signed by
VINAY KUMAR
KHANNA
Date: 2025.01.23
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CS no. 59502/2016,
CS No. 57716/2016
CS no. 57713/2016 Page No. 63 / 87
100. In his cross-examination dated 21.02.2015,
PW1 Rajender Bhandari admitted that after the demise
of his father and mother, suit property devolved upon
him, his brother and his two sisters. The sisters did not
execute any relinquishment deed in favour of brothers.
PW1 voluntary stated that an oral settlement took place.
Thus, Rajender Bhandari deposed that an oral settlement
took place. However, he did not remember the date of
oral settlement. It is own admission of Rajender
Bhandari that there existed a family settlement, where
after a document was executed by Vijender Bhandari
whereby he became owner of the portyion of specific
property.
101. The conveyance deed dated 12.06.2007 of
DDA Ex.DW2/X (colly.) exists in favour of Rajender
Bhandari and Vijender Bhnadari wherein Pradeep
Bhardwaj is one of the witness apart from one Hemraj-
father in law of Rajender Bhandari.
102. The contention of Ld. Counsel appearing
for Rajender Bhandari that his signatures were obtained
by fraud, is not plausible on the scales of preponderance
of probabilities as his father-in-law was also a witness
and both of them did appear before Registrar on
12.06.2007 for conversion of property from leasehold to
freehold in the name of only two brothers.
VINAY
KUMAR
KHANNA
Digitally signed by
VINAY KUMAR
KHANNA
CS no. 59502/2016,
Date: 2025.01.23
CS No. 57716/2016 11:51:50 +0530
CS no. 57713/2016 Page No. 64 / 87
103. In his cross-examination dated 21.12.2019,
a question was put to PW1 Rajender Bhandari to the
effect that “Is it correct that after completing the
formalities in DDA (for free hold of property No. F-97),
family settlement dated 19.07.2006 (already Exhibited as
Ex. PW1/D2X) was entered into between Rajender
Bhandari, Shri Vijender Bhandari, Smt. Anita Jain and
Smt Shakuntla Kothari for partition of property no. F-97,
Ashok Vihar, Delhi, to which he replied that one family
settlement was got typed by Vijender Bhnadari for
partition of the property.
104. Issues regarding family settlement were
framed on 21.04.2017, when Smt. Anita Jain was added
as party in the year 2017. On perusal of para No. 20 of
the plaint of the suit filed by Rajender Bhandari (leading
suit), it appears that Rajender Bhandari knew about the
family settlement. Para No. 20 of plaint is being
reproduced herein to appreciate the position as under :
“20. That on enquiry, the plaintiff came to know
that defendant no. 1 in connivance with other
defendants executed a forged agreement ( where
plaintiff was made party) and in that forged
document, defendants forged the signatures of
the plaintiff and with the help of that forged
document, defendants had declared the defendant
no. 4 as the owner of the suit property.”.
105. It is not clear why he had not mentioned the
word ‘family settlement’. In para 20 of his plaint, while
referring to alleged forged agreement (wherein he was Digitally
signed by
VINAY
VINAY KUMAR
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made party) it is averred that defendants allegedly forged
his signatures. When or which defendant out of four,
forged his signatures is not specified and it appears that
deliberately this para no. 20 is drafted vaguely and
evasively to hide the truth. It has been mentioned that
with the help of forged document defendant No. 4
Vijender Bhandari had been declared owner of the suit
property. There is no document which declares Vijender
Bhandari as owner of entire suit property.
106. Para No. 27 of plaint of suit filed by
Rajender Bhandari talks about cause of action, which is
reproduced as under:
“27. That the cause of action for filing the
present suit arose in favour of the plaintiff
and against the defendants on 24.09.2005
when the plaintiff No. 1 entered into the
compromise with defendant No. 4 in suit
No. CS (os) No. 895/2007. The cause of
action arose in favour of the plaintiff when
the plaintiff paid a sum of Rs.15,00,000/- to
the defendant No. 4. It further arose when
the defendants refused to execute a sale
deed in favour of the plaintiff. It further
arose on when defendant No. 1 tied to enter
into the House of plaintiff. It further arose
when the defendants tried to create third
party interest in the suit property and still
threatening to transfer the same to
somebody else or to create third party
interest in the same and the cause of action
is still accruing in favour of the plaintiff
and against the defendants”.
107. It can be seen that even this para qua cause
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VINAY KUMAR
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of action does not mention the fact that due to executing
of a family settlement any cause of action arose in favour
of Rajender Bhandari.
108. This court is of the considered opinion from
the evidence on record that Vijender Bhandari had the
authority to sell the first floor on 18.10.2007 as well as
half undivided second floor with roof rights on
20.12.2007, and during the sales, parties Sh. Vijender
Bhandari and Vijay Gaur had also appeared before the
Registrar for getting the sale deeds registered as per law.
109. Now, it is pertinent to examine the recitals of
sale deeds as well. In the registered sale deeds Ex. PW
1/5 and PW 1/6 executed by Sh. Vijender Bhandari in
favour of Vijay Gaur, it has been specifically mentioned
therein that the vendor i.e. Sh. Vijender Bhandari is the
sole and absolute owner of first floor and in possession
of the property i.e. first floor as well as built up second
floor with roof rights of the built up property bearing no.
F-97, measureing 169.45 square meter situated at Ashok
Vihar Phase I, Delhi-110052. It recites that the vendor
has sold, conveyed, transferred and assigned all rights,
title, interest in the property to the vendee i.e. Vijay Gaur
and also the vendor has delivered actual, vacant, physical
possession of the property to the vendee, and that vendee
can get the said property mutated / transferred in their
name from the concerned department / authority on the
Digitally
signed by
VINAY
VINAY KUMAR
CS no. 59502/2016, KUMAR KHANNA
CS No. 57716/2016 KHANNA Date:
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basis of these sale deeds
110. On overall reading of the sale deeds, it is
apprent that under the sale deeds entire right, title and
interest of Vijender Bhandari in the suit property have
been transferred to Vijay Gaur with respect to the first
floor as well as half undivided portion of the second
floor with roof rights along with common entrance,
passage and stair case and water connection comprising
two rooms, kitchen, latrine, bathroom in front and
courtyard in back fitted with separate two electric
connections a part of free hold built up property bearing
no. F-97, Land Area measuring 169.45 Sq. mtrs, situated
in the area of Ashok Vihar, Phase I, Delhi-110052, also
with the proportionate rights of the land under the said
property.
111. The sale deeds Ex. PW 1/5 and PW 1/6 also
recite that a sum of Rs. 25,00,000/- for the first floor and
and Rs. 13,25,000/- for the half share in second floor
with roof rights as consideration has already been
received in advance by the vendor Sh. Vijender Bhandari
from the vendee Vijay Gaur.
112. Now the contention of Sh. V.K. Jha, Ld.
Counsel appearing for Sh. Vijender Bhandari to the
Digitally
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CS no. 59502/2016, VINAY VINAY KUMAR
KHANNA
CS No. 57716/2016 KUMAR Date:
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effect that the complete payment has not been made by
Vijay Gaur or that the amount of Rs. 73,00,000/-
deposited in the Registry of the Hon’ble High Court had
been withdrawn has no merits and no effect on validity
of sale deeds in question having regard to the legal
positions noted above and discussed in earlier part of
judgment. Similarly, the contention of Sh. Ankit Gupta,
Ld. Counsel appearing for Rajender Bhandari to the
effect that initially agreement to sell dated 02.03.2006
was for a sum of Rs. 90,00,000/- and later on Vijay Gaur
paid a total sum of Rs. 38,25,000/- only as sale
consideration for the first floor and half portion of
second floor with roof rights has also no merits as it is
for the executant parties to settle and agree upon the
terms of sale.
113. Chain of events already noted and discussed in
earlier part of this judgment establish on record the facts
namely existence of oral family settlement between two
brothers and two sisters then entering into an agreement
by Vijender Bhandari with Vijay Gaur dated 02.03.2006
Ex. DW 1/3 for selling his share in the property to him,
recording of family settlement dated 19.07.2006, legal
notice dated 29.09.2006 by Vijay Gaur to both brothers
and thereafter effecting of mutation on 18.12.2006 and
conveyance deed on 12.06.2007, whereby property was
converted from leasehold to freehold in the name and in
favout of only two brothers i.e. Sh. Vijender Bhandari
Digitally
signed by
CS no. 59502/2016, VINAY
CS No. 57716/2016 VINAY KUMAR
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and Rajender Bhandari and thereafter execution of the
sale deeds dated 18.10.2007 and 20.12.2007 by Sh.
Vijender Bhandari in favour of Vijay Gaur pursuant to
their compromise and filing of joint application u/o 23
Rule 3 CPC in the suit bearing CS (OS) No. 895/2007
and permitting withdrawl thereof by the Hon’ble High
Court in the presence of counsel for Rajender Bhandari.
114. On appreciation of totality of material on
record, it cannot be held that there was any fraud or any
misrepresentation by or on behalf of Vijay Gaur or Sh.
Vijender Bhandari upon Rajender Bhandari.
Accordingly, both the said issues i.e. issue no.
1 and 2 are decided against plaintiff Rajender Bhandari.
Issue no. 10, 11, 12, 13, 16 and 17.
10. Whether the plaintiff (Vijay Gaur) in CS
(OS) 1497/2010 is entitled to a decree of
declaration against the defendant to the effect that
the plaintiff is a co-owner in respect of undivided
share of the second floor along with roof rights of
property bearing plot No. 97, Block F in Wazirpur
Residential Scheme now known as Ashok Vihar,
Phase I, Delhi to the extent of 50%? OPP in CS
(OS) 1497/2010.
11. Whether the plaintiff (Vijay Gaur) in CS
(OS) 1497/2010 is entitled to a decree of partition
against the defendant in respect of 50% share of
the second floor along with roof rights of property
bearing No. Plot No. 97, Block F in Wazirpur
Residential Scheme now known as Ashok Vihar,
Phase I, Delhi? OPP in CS (OS) No. 1497/2010.
Digitally
signed by
VINAY
CS no. 59502/2016,
VINAY KUMAR
KUMAR KHANNA
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12. Whether the plaintiff (Vijay Gaur) in CS
(OS) No. 1497/2010 is entitled to a decree of
possession against the defendant in respect of 50%
share of the second floor along with roof rights of
property bearing Plot No. 97, Block F in Wazirpur
Residential Scheme now known as Ashok Vihar,
Phase I, Delhi? OPP in CS (OS) No. 1497/2010.
13. Whether the plaintiff (Vijay Gaur) in CS
(OS) No. 1497/2010 is entitled to a decree for
perpetual injunction restraining the defendant, his
associates, servants and employees etc. from
selling, assigning, parting or mortgaging or
creating any charge in respect of second floor with
roof rights of property bearing plot No. 97, Block
F in Wazirpur Residential Scheme now known as
Ashok Vihar, Phase I, Delhi? OPP in CS (OS) No.
1497/2010.
16. Whether no sale consideration was paid
by plaintiff (Vijay Gaur) in CS (OS) 1497/2010 to
Shri Vijender Bhandari as stated in paragraph 16
of the preliminary objection? OPD in CS (OS)
1497/2010.
17. Whether Mr. Vijay Gaur plaintiff in CS
(OS) 727/2008 is entitled to a decree for
possession against the defendants, their associates,
assignees etc. including Shri Sudershan Passi in
respect of first floor of property bearing No. F-97,
Ashok Vihar, Phase I, Delhi-110052? OPP in CS
(OS) 727/2008.
115. Having regard to the legal positiond and the
finding on the issue no. 1 and 2, this court finds that
Vijay Gaur is entitled to decree of possession against the
defendants with respect to the first floor of the property
in question and also being the owner of the half portion
is entitled to 50% share as well as possession of the
Digitally
signed by
CS no. 59502/2016, VINAY
VINAY
KUMAR
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second floor along with 50% roof rights in the property
in question.
116. Rajender Bhandari in his deposition testified
that he came to know that Vijay Gaur entered into an
agreement to purchase qua first floor, second floor and
roof rights of suit property, when he received summons
of suit no. 897/2007 but even after coming to know of
above agreement he did not initiate any legal
proceedings against Vijay Gaur for cancellation of said
agreement. He volunteered that he did not do so as Vijay
Gaur and Dinesh Sharma (since deceased) told him that
nothing further would be done and that agreement would
be got cancelled, but the same is found unworthy of any
credence in view of the evidence on record.
117. Sh. Vijay Gaur has purchased the first floor as
well as half undivided share in the second floor along
with roof rights by virtue of the register and duly
stamped sale deeds date 18.10.2007 and 30.12.2007
respectively. Defendants Rajender Bhandari, Anita Jain
and Shakuntala Kothari have failed to establish existence
of any fraud, misrepresentation or coercion on the part of
the purchaser Sh. Vijay Gaur in execution of the sale
deeds in question and have therefore, failed to rebut the
presumption that the registered sale deeds were validly
executed. The said defendants have failed to satisfy the
Digitally
signed by
VINAY
CS no. 59502/2016, VINAY KUMAR
CS No. 57716/2016 KUMAR KHANNA
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requisite conditions for adjudging the sale deeds in
question as void or voidable. It has already been noted
above that the settled law is that once the title in the
property has already passed, even if balance sale
consideration is not paid, the sale cannot be invalidated
on the said ground. Therefore, this court finds that the
title in the suit property stands validly transferred in
favour of the purchaser i.e. Sh. Vijay Gaur through the
registered sale deeds.
118. This court also finds no merit in the contention
of Sh. Ankit Gupta, Ld. Counsel appearing for Sh.
Rajender Bhandari that Sh. Rajender Bhandari agreed to
get mutated the property in their joint name of himself
and Sh. Vijender Bhandari, believing the words of Sh.
Vijender Bhandari as true and correct and therefore he
agreed to apply for conversion of property from lease
hold to freehold. There is nothing on record to show that
Sh. Rajender Bhandari filed any complaint against his
brother Sh. Vijender Bhandari for the alleged acts of
fraud and deception.
119. It is not acceptable that merely because
Vijender Bhandari informed Rajender Bhandari that their
sisters had agreed to relinquish their rights in the
property in their favour, he believed the words as true
and correct. There is no reason as to why Sh. Rajender Digitally
signed by
VINAY
VINAY KUMAR
CS no. 59502/2016, KUMAR KHANNA
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Bhandari could not verify the said fact on his own from
his sisters Smt. Anita Jain and Smt. Shankuntala Kothari.
Vide notice dt. 29.09.2006 Sh. Rajender Bhandari had
come to know that a family settlement existed whose
copy was handed over to Sh. Vijay Gaur by Sh. Vijender
Bhnadari, who had agreed to sell his portion i.e. initially
the first floor and second floor along with the roof to Sh.
Vijay Gaur for a sale consideration of Rs.90,00,000/-.
120. At the cost of repetition, it may be noted that
Rajender Bhandari had received summons from the
Hon’ble High Court of Delhi in suit bearing No. CS (OS)
No. 895/2007 filed by Vijay Gaur against Vijender
Bhandari and him Ex.DW1 or DW2/Z3, wherein he was
arrayed as performa defendant. Sh. Vijay Gaur had
sought specific performance of the agreement to sale
dated 02.03.2006 but before filing written statement,
Vijay Gaur and Vijender Bhandari jointly moved an
application u/o 23 Rule 3 CPC dated 01.11.2007
wherein Vijender Bhandari admitted the execution of
Agreement to Sale dated 02.03.2006 between him and
Vijay Gaur and executed sale deeds of his share of first
floor and second floor along with roof rights in property
No. F-97, area measuring 170 square meters, Ashok
Vihar, Phase-1, Delhi. (Proviso of Order 23 Rule 3 CPC).
121. Vijender Bhandari had also admitted that Sh.
Digitally
signed by
VINAY
VINAY KUMAR
CS no. 59502/2016, KUMAR KHANNA
KHANNA Date:
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Rajender Bhandari and Sh. Vijender Bhandari were the
joint owners and by virtue of family settlement dated
19.07.2006 arrived at between the legal heirs of late Sh.
M.M. Bhandari, who was owner of the said property. Sh.
Rajender Bhandari admitted that by virtue of family
settlement he had become the owner of the entire first
floor of the property along with half share of the second
floor with roof rights, while Sh. Rajender Bhandari
became the owner of entire ground floor and the half
share of the second floor with its roof rights by virtue of
the family settlement dated 19.07.2006. In the said
application, it was also mentioned that Sh. Vijender
Bhandari had executed a sale deed in respect of the entire
first floor in favour of Sh. Vijay Gaur against the
consideration and handed over the possession of the
same to him. Vijender Bhandari had further averred that
he had no objection in case the FDRs dated 20.06.2007
and 16.06.2007, in the name of Registrar General are
released to Vijay Gaur as both parties had amicably
settled their disputes. Admittedly, Rajender Bhandari was
a party in the said suit and the Hon’ble High Court had
granted liberty to Sh. Rajender Bhnadari to seek
remedies available with him in law, but strangely he took
two years in filing the suit for declaration and permanent
injunction as regards the sale deeds executed by Sh.
Vijender Bhandari in favour of Sh. Vijay Gaur and same
belies the conduct of any reasonable person of ordinary
prudence if there was any case of fraud or forgery as
Digitally
signed by
VINAY
CS no. 59502/2016, VINAY KUMAR
CS No. 57716/2016 KUMAR KHANNA
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being claimed by Rajender Bhandari.
122. This court also find no merit in the contention
that when Sh. A.K. Gupta, Advocate had represented
Vijender Bhandari in the said suit and that although, he
had sent a legal notice dated 29.09.2006 on behalf of
Vijay Gaur in the said matter. There is nothing on record
to show that if it was a misconduct on the part of the
counsel, any action was taken or any complaint was filed
in the concerned forum by Rajender Bhnadari. In this
suit where Sh. Rajender Bhandari sought declaration for
declaring the sale deeds executed by Sh. Vijender
Bhandari in favour of Sh. Vijay Gaur as null and void, it
was vaguely pleaded that Sh. Vijay Gaur and Sh.
Vijender Bhandari had forged some documents to show
that the property bearing No. F-97 had already been
partitioned between the legal heirs of Late Sh. M.M.
Bhandari. Pleadings of Sh. Rajender Bhnadari are not
specific and are vague in this regard. It is alleged that
one day Vijay Gaur tried to illegally enter the house but
on which date and which month is not pleaded. It is not
written or specified when he came to know that Sh. Vijay
Gaur in connivance with other defendants played fraud
upon him.
123. This court also finds no merit in the contention
of Sh. Ankit Gupta, Ld. Counsel to the effect that
Digitally
signed by
CS no. 59502/2016, VINAY
CS No. 57716/2016 VINAY KUMAR
KUMAR KHANNA
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Vijender Bhandari could not sell his share in the property
in question to Vijay Gaur without specifying how he
became the owner or why he filed the suit for specific
performance of agreement to sale dated 02.03.2006 in
respect of entire first floor and second floor and why no
fresh agreement was executed. Trial court considers
‘what is’ and finds facts as per material placed and
proved on record as per law. Answers to the ‘why(s)’, are
evident from the material on record. Rather, it is for Sh.
Rajender Bhandari to answer why he had appeared
before the DDA authorities and actively participated in
the mutation of the property in the joint name of himself
along with Sh. Vijender Bhandari in exclusion of the
sisters, and why they got conveyance deed executed
from DDA on 12.06.2007.
124. On perusal of material on record, it appears
that it was clearly on the basis of oral family settlement
reduced in writing on 19.07.2006. Material on record
also shows that Sh. Rajender Bhandari was well aware
about the family settlement dated 19.07.2006 since
beginning and it was executed and reduced into writing
by him as well as other legal heirs of late Sh. M.M.
Bhandari. Admittedly, it was a relied upon document
filed by Sh. Vijay Gaur in the suit against Sh. Vijender
Bhandari wherein he was made a performa defendant
and Sh. Rajender Bhandari cannot deny about his
knowledge of the suit and filing of family settlement
Digitally
CS no. 59502/2016, signed by
CS No. 57716/2016 VINAY
VINAY KUMAR
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KHANNA Date:
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therein or having received the copies of the documents
including the family settlement dated 19.07.2006 filed on
records of the said suit.
125. Strangely, Rajender Bhandari has totally
avoided and was evasive about family settlement dated
19.07.2007. It was argued that only few of the pages of
family settlement dated 19.07.2006 was signed by him.
This court finds no reason why Sh. Rajender Bhandari
could not challenge the said family settlement dated
19.07.2006, when he had come to know about the same
not only through the legal notice received from Sh. Vijay
Gaur but also in the civil suit filed in the High Court, and
in considered opinion of this court now he cannot be
allowed now to raise question or indirectly challenge the
family settlement which he has not challenged, and
rather utilized for getting mutation and conversion from
DDA / government authorities. Moreover, the
conveyance deed and mutation deed in which he himself
was a party, has also not been challenged by any of the
sister or by any of the brothers i.e. Vijender Bhnadari or
Rajender Bhandari before DDA or any forum. Thus, the
said conveyance deed and mutation cannot be disputed
or repudiated by Rajender Bhandari.
126. Now, coming to the point of interrogatories
dated 25.05.2024 filed, whereby reply was filed by Smt.
Digitally
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Anita Jain, sister of Rajender Bhandari. She went to the
extent of stating that she had never filed an application
u/o 1 rule 10 CPC. This court finds no substance in the
contention of Sh. Ankit Gupta, counsel appearing for Sh.
Rajender Bhnadari that the said interrogatories is
response to the interrogatories by Sh. Anita Jain could
not be looked into as she filed the same without any
reply. Court has to decide civil cases on the basis of
preponderance of probabilities and while appreciating
evidence and material on record, court can look into the
entire material & conduct of parties too, pleadings,
replies to the applications and the documentss filed by
the parties to ascertain truth. Admittedly, neither Anita
Jain nor Shakuntala Kothari have chosen to appear in the
witness box or adduced any evidence to support the
version of Rajender Bhandari.
127. Vijender Bhandair is admittedly a
proclaimed offender in a criminal case filed by Sh. Vijay
Gaur and pending trial but he has been appearing in these
cases through counsel. Sh. Vibhash Kumar Jha, Ld.
Counsel appearing of Sh. Vijender Bhandari admittedly
has not adduced evidence. In his written synopsis, Sh.
Vibahsh Kumar Jha has not disputed regarding agreeing
for sale of the suit property to the plaintiff for a total
consideration of Rs. 90.00 lakhs vide agreement to sale
dated 02.03.2006 Ex.PW1/3, between Vijender Bhandari
and Vijay Gaur. His case is that he has not received the
Digitally
signed by
CS no. 59502/2016, VINAY
VINAY
KUMAR
CS No. 57716/2016 KUMAR KHANNA
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entire amount. He has also not disputed that the sale deed
dated 18.10.2007 Ex.PW1/1 for a consideration of Rs.
25.00 lakhs and the sale deed dated 20.12.2007
Ex.PW1/2 for a total consideration of Rs.13,25,000/- was
executed but his argument was that Sh. Vijay Gaur took
him into confidence to execute the sale deed but it did
not pay and had promised to pay balance amount of
Rs.65.00 lakh in cash, but same was not received.
128. It was argued on behalf of Sh. Vijender
Bhandari that he paid a sum of Rs.1,50,000/- as the
property sale commission and that Vijender Bhandari
used to do brokerage business with Vijay Gaur. It is
submitted that the document agreement to sale dated
02.03.2006 was got executed by Vijay Gaur under
drunken condition and the sale consideration was never
paid by him to Vijender Bhandari. In his submissions,
Sh. V.K. Jha, Ld. Counsel appearing for Vijender
Bhnadari has not disputed about the family settlement
between the family members dated 19.07.2006
Ex.PW1/5. It is submitted that Vijay Gaur had withdrawn
an amount of Rs. 73.00 lakhs, kept in the form of
demand draft for the Registrar General, High Court,
which he used for himself instead of giving it to him and
possession of premises was not given to Vijay Gaur on
24.11.2006 or on 23.08.2008. Digitally
signed by
VINAY
VINAY KUMAR
KUMAR KHANNA
KHANNA Date:
2025.01.23
11:53:29
+0530
CS no. 59502/2016,
CS No. 57716/2016
CS no. 57713/2016 Page No. 80 / 87
129. It is argued that Vijender Bhandari came to
know that possession of suit premises was taken away by
Pradeep Bhardwaj and that the possession of the
premises was always with Sh. Vijender Bhandari. It is
argued that Vijender Bhandari had handed over copies of
all the documents and the family settlement dated
19.07.2006 but the said settlement was executed in
drunken condition and consideration was never paid by
Sh. Vijay Gaur.
130. In the considered opinion of this court, the
arguments adduced on behalf of Sh. Vijender Bhandari
are devoid of any merits as same are not substantiated by
any evidence by said Vijender Bhandari. * Vijay Gaur
has been able to establish on record that he is the owner
of the second floor along with roof rights of property
bearing No. plot No.97, Block F, in Wazirpur Residential
Scheme now known as Ashok Vihar, Phase I, Delhi by
virtue of registered sale deed registered as document
no.10340 in addl. Book no.l vol no. 15 18 at pages 103
to 108 on 20.12.2007 and that he also is the owner of
first floor by virtue of registered sale deed dated
20.12.2007 registered as Document no. 10340, Addl.
Book No. 1, Vol. 1518 at Page 103-108. Such documents
are registered documents having been executed in
pursuance of a settlement arrived before the Hon’ble
high court of Delhi in the suit titled as bearing no.
Digitally
895/2007 which was withdrawn as compromised. It is VINAY
signed by
VINAY
KUMAR
KUMAR KHANNA
KHANNA Date:
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CS no. 57713/2016 Page No. 81 / 87
settled principle of law that there is a presumption of
correctness and free consent in favour of registered
document, as held by Hon’ble Supreme Court in Prem
Singh & Ors vs Birbal & Ors AIR 2006 SC 3608,
wherein it was observed that “there is a presumption that
a registered document is validly executed. A registered
document, therefore, prima facie would be valid in law.
The onus of proof, thus, would be on a person who leads
evidence to rebut the presumption.”
131. In the present suit evidence has been led only
by Rajinder Bhandari, Vijay Gaur and Pardeep Bhardwaj
and all other parties have chosen not to enter the witness
box. Smt. Anita Jain vide reply to interrogatories dated
25.05.2024 did state that she had relinquished her share
in the said property vide family settlement dated
19.07.2006 in favour of her two brothers i.e. Rajinder
Bhandri and Vijender Bhandari.
132. Declaration is a discretionary relief and may
be sought when a person having a title wants a
declaration to be made of that title against the ones
denying or interested in denying the same. Other
agreements which are discussed herein above, do not
have any force in the eye of law, being in clear
contravention of Transfer of Property Act and
Registration Act. In the present case, Vijay Gaur has
Digitally
signed by
CS no. 59502/2016, VINAY
VINAY
CS No. 57716/2016 KUMAR
KUMAR
KHANNA
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established on record that he has title, right and interest
in his favour by virtue of two registered sale deeds in his
favour conferring a valid title of ownership in his favor
of Sh. Vijay Gaur in respect of first floor and undivided
½ portion in the second floor with roof rights.
133. Further from perusal of the Registered Sale
Deeds dated 18.10.2007 and 20.12.2007, it is clear that
payments of Rs. 25,00,000/- and Rs. 13,25,000/- vide
various cheques and Cash have been made by Vijay Gaur
to Sh. Vijender Bhandari towards sale consideration.
134. Accordingly, it is held that the sale deeds dated
18.10.2007 and 20.12.2007 executed by Sh. Vijender
Bhandari in favour of Vijay Gaur qua sale of first floor
and half undivided portion of second floor along with
roof rights of property in question, have been validly
executed, and by virtue of the same Vijay Gaur is the
exclusive owner of first floor and half undivided portion
of second floor along with roof rights of property in
question and is entitled to a decree of declaration to the
effect that he is a co-owner in respect of undivided share
of the second floor along with roof rights of property in
question to the extent of 50%. He is further entitled to a
decree of partition against the defendants in respect of
50% share of the second floor along with roof rights in
property in question. Digitally
signed by
VINAY
VINAY KUMAR
KUMAR KHANNA
KHANNA Date:
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CS no. 57713/2016 Page No. 83 / 87
135. Vijay Gaur is further entitled to a decree of
possession against the defendants in respect of 50%
share of the second floor with roof rights of property in
question. He is also entitled to a decree of perpetual
injunction thereby restraining the defendants from
selling, assigning, parting or mortgaging or creating any
charge in respect of second floor with roof rights of
property in question. Vijay Gaur is further entitled to a
decree for possession against the defendants in respect of
first floor of property in question.
These issues are decided in favour of Vijay
Gaur and against other defendants.
Relief :
Relief in CS 59502/16 / CS OS 2117/2009
136. In view of aforementioned discussion on
various issues, this court is of the opinion that plaintiff
Rajender Bhandari is not entitled to any relief and his
suit is liable to be dismissed. Ordered accordingly.
Decree Sheet be prepared accordingly.
Relief in CS 57713/16 (CS OS 1497/2010)
137. It is held that Vijay Gaur is entitled to a decree
of declartion against the defendants to the effect that he
is 50% co-owner in resepct of undivided share of the
second floor along with roof rights of property bearing
plot no. 97, Block F, Ashok Vihar, Phase, Delhi.
Digitally
signed by
CS no. 59502/2016, VINAY VINAY KUMAR
KHANNA
CS No. 57716/2016 KUMAR Date:
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138. It is further held that Vijay Gaur is entitled to a
decree of partition against defendants in respect of 50%
share of the second floor along with roof rights of
property bearing Plot No. 97, Block F, Ashok Vihar,
Phase I, Delhi.
139. Vijay Gaur is further entitled to a decree of
possession against defendants in respect of 50% share of
the second floor along with roof rights of property
bearing Plot No. 97, Block F, Ashok Vihar, Phase I,
Delhi. He is also entitled to a decree for perpetual
injunction thereby restraining the defendants their
associates, servants and employees from selling,
assigning, parting or mortgaging or creating any charge
in respect of second floor of property bearing Plot No.
97, Block F, Ashok Vihar, Phase I, Delhi.
140. A Preliminary decree for partition with respect
to second floor with roof rights of property bearing plot
No. 97, in Wazirpur Residential Scheme now known as
Ashok Vihar, Phase I, Delhi for separation / division of
50% shares and handing over of possession of
identified / divided portion thereof to the plaintiff Sh.
Vijay Gaur be passed.
Digitally signed
by VINAY
VINAY KUMAR
KUMAR KHANNA
Date:
KHANNA 2025.01.23
11:54:16 +0530
CS no. 59502/2016,
CS No. 57716/2016
CS no. 57713/2016 Page No. 85 / 87
141. It is made clear that in view of the
observations of the Hon’ble Supreme Court in Shubh
Karan Babna @ Shub Karan Prasad Bub Vs. Sita Saran
Bubna & Ors. Reported as (2009) 12 SCALE 259, this
case shall be finally disposed of only upon division of
property by metes and bound and handing over of the
possession of above noted 50% share in the property to
the plaintiff Sh. Vijay Gaur.
142. In view of this, four weeks time is granted to
the parties to explore the possibility of mutual agreement
on the manner of division of property for passing final
decree and in the alternative, if the division by metes and
bounds cannot be made by the parties, without further
inquiry / inspection of the property, this function would
be entrusted to a Commissioner appointed by this court
on the next date for the needful and upon receipt and
consideration of his report / after hearing the parties, the
court would pass a final decree.
Relief in CS 57716/16 (CS OS 727/2008)
143. It is further held that Vijay Gaur is entitled to a
decree of possession against the defendants, their
associates, assignees etc. including Shri Sudershan Passi
in respect of first floor of property bearing No. F-97,
Ashok Vihar, Phase I, Delhi-110052.
Digitally
signed by
Decree sheet be prepared accordingly. VINAY
VINAY
KUMAR
KUMAR KHANNA
KHANNA Date:
2025.01.23
11:54:23
+0530CS no. 59502/2016,
CS No. 57716/2016
CS no. 57713/2016 Page No. 86 / 87
Before parting with the judgment, it is ordered
that since all the three cases were clubbed together by the
Hon’ble High Court, a copy of this judgment, digitally
signed, be placed in two connected matters i.e. CS
57713/16 (CS OS 1497/2010) and CS 57716/16 (CS OS
727/2008).
Files be consigned to Record Room except
case file of CS 57713/16 (CS OS 1497/2010).
Digitally signed
Announced in the open court VINAY by VINAY
KUMAR
KUMAR KHANNA
today i.e. 22nd January, 2025 KHANNA Date:
2025.01.23
11:54:54 +0530(Vinay Kumar Khanna)
Principal District & Sessions Judge (North)
Rohini Courts, DelhiCS no. 59502/2016,
CS No. 57716/2016
CS no. 57713/2016 Page No. 87 / 87
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