GEETA BISWAS vs NAMITA DASS & ANR

VALMIKI J. MEHTA, J (ORAL)

C.M. Nos.15670/2018 & 15672/2018 (exemption)

1.Exemption allowed subject to just exceptions.

C.M.s stand disposed of.Â

C.M. No.15671/2018 (for condonation of delay)

For the reasons stated in the application, delay in re-filing the appeal is condoned.

C.M. stands disposed of.

RFA No.334/2018 and C.M. No.15669/2018 (stay)

3.This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant no.1 in the suit impugning the

judgment of the Trial Court dated 16.1.2018 whereby the trial court has decreed the suit filed by the respondent no.1/plaintiff for cancellation of sale

documents dated 25.8.2003 and holding them as null and void with respect to the undivided half share of the respondent no.1/plaintiff in the built up

property bearing no. RZ-68/350-A (front side), situated on a plot of 35 sq. yards out of Khasra No.350, situated in the Revenue Estate of Village

Nasirpur, colony known as West Sagar Pur, New Delhi. Respondent no.1/plaintiff has also been held entitled to by the impugned judgment and decree

to mandatory injunction directing the appellant/defendant no.1 to remove herself and her belongings from the first floor of the suit property and hand

over vacant physical possession to the respondent no.1/plaintiff. Respondent no.1/plaintiff has been further held entitled to the decree of specific

performance against the respondent no.2/defendant no.2 whereby the respondent no.2/defendant no.2 has been directed to execute the necessary

conveyance documents qua the suit property in favour of the respondent no.1/plaintiff as also entitled to permanent injunction in her favour and against

the defendants in the suit restraining them from creating third party interest in the suit property. Â

4.The facts of the case are that the respondent no.1/plaintiff filed the subject suit seeking specific performance of the Agreement to Sell dated

11.6.2003 executed by the respondent no.2/defendant no.2 in favour of the respondent no.1/plaintiff pertaining to the suit property. It was pleaded in

the plaint that respondent no.1/plaintiff received a sum of Rs.3.50 lacs towards maintenance and permanent alimony from her husband on the

dissolution of her marriage in terms of the judgment and decree dated 11.1.2002. Out of the aforesaid amount, respondent no.1/plaintiff withdrew an

amount of Rs.94,000/- from her savings bank account on 2.12.2002 and deposited the same in the account of the appellant/defendant no.1/mother.

The subject Agreement to Sell dated 11.6.2003 was executed in favour of the respondent no.1/plaintiff by the respondent no.2/defendant no.2 and

who is the uncle of the respondent no.1/plaintiff. The total sale consideration was agreed to be Rs.3,20,000/- of which respondent no.1/plaintiff paid

to the respondent no.2/defendant no.2 a sum of Rs.1,50,000/- on the date of execution of the Agreement to Sell. Out of the balance amount of

Rs.1,70,000/-, the respondent no.1/plaintiff paid to the respondent no.2/defendant no.2 a sum of Rs.20,000/- on 4.8.2003 and to this effect an

endorsement was made on the back side of the Agreement to Sell. A further amount of Rs.50,000/- was paid by the respondent no.1/plaintiff to the

respondent no.2/defendant no.2 on 5.8.2003 leaving a balance amount only of Rs.1 lac payable by the respondent no.1/plaintiff to the respondent

no.2/defendant no.2. It is further pleaded in the plaint that the respondent no.1/plaintiff was remarried to one Sh. Amit Dass and since she was

living in a rented accommodation, she kept the original of the subject Agreement to Sell dated 11.6.2003 and the receipt with her

mother/appellant/defendant no.1 and retained only a photocopy with herself. It is further pleaded that the balance amount of Rs.1 lac was paid by

the respondent no.1/plaintiff to her mother because her mother said that the respondent no.2/defendant no.2 was asking for the balance amount, and

therefore, the respondent no.1/plaintiff withdrew a sum of Rs.92,000/- from her savings bank account and adding thereto a sum of Rs.8,000/-, a total

amount of Rs.1 lac was paid to the appellant/defendant no.1 for being paid to the respondent no.2/defendant no.2. Respondent no.1/plaintiff has

further pleaded in the plaint that the appellant/defendant no.1 however fraudulently on 25.8.2003 got documents executed with respect to the suit

property in her favour allegedly on account of the respondent no.1/plaintiff being in family way and thus not available. Respondent no.1/plaintiff

therefore pleaded that the documentation dated 25.8.2003 got executed by the appellant/defendant no.1 in her favour from the respondent

no.2/defendant no.2 were void in view of the Agreement to Sell dated 11.6.2003 executed by the respondent no.2/defendant no.2 in favour of the

respondent no.1/plaintiff. Accordingly, the documentation in favour of the appellant/defendant no.1 dated 25.8.2003 was prayed for being cancelled

through the suit filed by getting them declared null and void and further for getting the Agreement to Sell dated 11.6.2003 specifically performed by the

respondent no.2/defendant no.2 in favour of the respondent no.1/plaintiff. Â

5.(i)Â Suit was contested by the appellant/defendant no.1, but the respondent no.2/defendant no.2 however did not deny due execution of the

Agreement to Sell dated 11.6.2003 executed by him in favour of the respondent no.1/plaintiff and that the respondent no.2/defendant no.2 had in fact

received the complete amount of the sale consideration of Rs.3,20,000/- for transfer of the suit property. It was the case of the respondent

no.2/defendant no.2 that it was the respondent no.1/plaintiff who was to be the owner of the suit property as is the case of the respondent

no.1/plaintiff that the respondent no.2/defendant no.2 had entered into the Agreement to Sell dated 11.6.2003 and had also received from her the

entire consideration. Â

(ii) The appellant/defendant no.1 filed her written statement denying that respondent no.1/plaintiff paid the amounts to the respondent no.2/defendant

no.2 under the Agreement to Sell, and as otherwise detailed in the plaint. In the written statement the appellant/defendant no.1 pleaded to be the

owner of the ground floor of the suit property. It was pleaded in the written statement of the appellant/defendant no.1 that respondent

no.2/defendant no.2 had left the premises on 25.8.2003 after executing the necessary documentation in favour of the appellant/defendant no.1 and

which includes the Agreement to Sell, General Power of Attorney, receipt, affidavit, possession letter and Will. Â

6.After completion of pleadings, the trial court framed the following issues:-

“(i) Whether plaintiff is entitled to a decree of declaration, as claimed ? OPP.

(ii) Whether plaintiff is further entitled to a decree of mandatory injunction, as claimed ? OPP.

(iii). Whether plaintiff is further entitled to a decree of specific performance in respect of agreement to sell dated 11.06.2003 ? OPP. (iv). Whether

plaintiff is further entitled to a decree of permanent injunction, as claimed ? OPP.

(v) Relief.â€​Â

7.Respondent no.1/plaintiff led evidence and which aspects are recorded in paras 7 and 8 of the impugned judgment and these paras read as under:-

“7.To prove her case, plaintiff examined herself as PW-1 and tendered in evidence her affidavit as Ex.PW1/1 and produced the documents i.e.

Decree of divorce petition as Ex. PW1/A; account statement of herself as Mark-B; copy of pass-book of defendant no.1 i.e. Geeta Biswas as Mark-

A; site plan of the property in question as Ex. PW1/C and bayana receipt dated 11.06.2003 as Mark-C. She was extensively cross-examined by the

Ld. Counsel for defendant no.1. Plaintiff has also examined Defendant No. 2, Sh. Anoop Kumar Biswas as PW-2 who tendered his affidavit in

evidence as Ex. PW2/A. He relied upon the copy of judgment and decree dated 11.01.2002 of divorce which is already Ex. PW1/A on behalf of the

plaintiff. He also identified  his  signature  on  the agreement to sell  dated 11.06.2003. He admitted to have received the sale

consideration from the plaintiff in his affidavit. However, in his cross-examination, he deposed that Mark-C i.e. agreement to sell dated 11.06.2003 is

not the bayana receipt given by him to the plaintiff. Plaintiff has also examined one Sanat Kumar Dey (neighbour of the plaintiff and defendants) as

PW-3 who tendered his affidavit in evidence as Ex.PW3/A who also  relied  upon  the  copy  of  bayana receipt/agreement

to sell dated 11.06.2003 as already Mark-C. He also deposed that one day when the quarrel  arose  between  the  family Â

of  plaintiff  and defendant regarding the property, he was called to intervene as everybody in the social circle was aware of the fact that the

property had been purchased by the plaintiff. Plaintiff also examined one Israel Ansari as  PW-4  being  her  neighbour Â

who  tendered  his affidavit in evidence as Ex. PW4/A. He deposed in his affidavit in evidence on the same lines as of PW-3. Both the

witnesses PW-3 and PW-4 have been crossexamined by the Ld. Counsel for defendant no.1.Â

8.Plaintiff further examined Sh. Prem Singh Sagar, Sr. Manager from UCO Bank, Janakpuri as PW-5 who deposed that the records of saving bank

account no. 008155, bank statement from the date 27.08.2002 to 20.08.2003  pertaining  to  the  plaintiff  Smt.  Namita

Dass are not available with us as the same are old record i.e. more than 10 years.  Finally, plaintiff also summoned one Sh. Chandra Shekhar

Azad, Branch Manager, SBI, Janak Cinema Complex Branch who produced the original cheque bearing No. 707709 of dated 25.08.2003 of Rs.

92,000/- of State Bank of Mysore which is Ex. PW6/1. He further deposed that the records pertaining to the year 1993 to 2003 have been Â

destroyed  on  28.08.2013  under  the  record retention  policy  dated  15.10.2011  (Circular  No.GC

176/2011-12 dated 15.10.2011), which is Ex. PW6/2 and  later  on  dated  20.09.2017  alongwith  the photocopy Â

of  entries  made  in  the  register  of  the destroyed record as Ex. PW6/3. Thereafter, plaintiff's evidence Â

was  closed  and  defendant  no.2  was proceeded ex-parte on 06.05.2017.â€​ Â

8.The appellant/defendant no.1 did not lead evidence in terms of the statement recorded on her behalf on 16.10.2017 and 24.11.2017. Therefore the

suit was decided and this appeal has also to be decided only on the basis of the evidence led by the respondent no.1/plaintiff.  Â

9.In my opinion, no fault can be found with the impugned judgment inasmuch as respondent no.1/plaintiff proved her case by leading evidence

whereas the appellant/defendant no.1 has led no evidence. The divorce petition as a result of which respondent no.1/plaintiff received a sum of

Rs.3,50,000/- is proved as Ex.PW1/A. The original agreement to sell could not be proved as the statement was made by the respondent no.1/plaintiff

that the original Agreement to Sell dated 11.6.2003 and the receipt of the same date was in possession of the appellant/defendant no.1/mother.Â

Respondent no.1/plaintiff also summoned one Sh. Chandra Shekhar Azad from SBI, Janak Cinema Complex Branch who produced the original

cheque dated 25.8.2003 of Rs.92,000/- which was exhibited as Ex.PW6/1. The appellant/defendant no.1 led no evidence to show that she at all had

any source of moneys to pay or had actually paid her own moneys as consideration of Rs.3,50,000/- for the documents executed in her favour on

25.8.2003 by the respondent no.2/defendant no.2. Therefore, in my opinion, once the respondent no.1/plaintiff led evidence and proved her case and

the appellant/defendant no.1 led no evidence i.e did not even file her affidavit by way of evidence as examination-in-chief, and refused to stand the

test of crossexamination, hence it has to be held that the respondent no.1/plaintiff was the beneficiary under the Agreement to Sell dated 11.6.2003

executed by the respondent no.2/defendant no.2 in her favour and hence the subsequent documentation dated 25.8.2003 in favour of the

appellant/defendant no.1 had to be cancelled and the Agreement to Sell dated 11.6.2003 in favour of the respondent no.1/plaintiff had to be specifically

performed by the conveyance documents of the suit property being executed by the respondent no.2/defendant no.2 in favour of the respondent

no.1/plaintiff.     Â

10.(i) Learned counsel for the appellant/defendant no.1 argued that the suit was barred by limitation because the case of the respondent no.1/plaintiff

was that she came to know of the documents dated 25.8.2003 only for the first time on 6.2.2011, and therefore, the suit had to be filed within one year

from 6.2.2011 as per Section 17(2) of the Limitation Act, 1963 but the suit was filed after limitation on 24.8.2012.

(ii)This argument urged on behalf of appellant/defendant no.1 is completely misconceived and has been rightly rejected by the trial court. I may note

that the provision of Sub-Section (2) of Section 17 only applies to execution of a decree and when execution of the decree has been got prevented by

a force or fraud and for this eventuality the period of one year as stated in Sub-Section (2) of Section 17 applied accordingly with respect to execution

of the decree and Sub-Section (2) of Section 17 is not with respect to filing of a suit for specific performance or cancellation of the illegal documents

and with respect to which the period of limitation is three years as provided under the Limitation Act, with the period of three years commencing from

the time when the knowledge of fraud is discovered. In the present case, the fraud was discovered by the respondent no.1/plaintiff in this case on

6.2.2011, and therefore, the suit filed on 24.8.2012 was very much within limitation. I may also note that the appellant/defendant no.1 never got any

issue framed of limitation, and therefore, this issue of limitation in any case was not available for being argued by the appellant/defendant no.1. Trial

court in this regard has rightly discussed as under:-

“15.The defendant no.1 has also contended that the suit is barred by limitation, however, no issue has been pressed by defendant no.1 to be framed

in this regard. Nonetheless, the contention is without any merit in view of the fact that the documents such as Agreement to Sell, Receipt, Affidavit,

Possession letter etc dated 25.08.2003 which the plaintiff is seeking to be declared as null and void, is stated to have come to the knowledge of the

plaintiff for the first time on 06.02.2011 and thus, the limitation period commenced from the said date as per Section 17 of the Limitation Act.Â

Admittedly, the suit has been filed in August, 2012 and thus, the same is within the limitation. As far as relief seeking specific performance of the

agreement to sell dated 11.06.2003 is concerned, the same is also within limitation as the contention of the plaintiff is that defendant no.2 undertook to

execute the sale documents in pursuance to agreement to sell whenever the sale becomes permissible b government. The defendant no.1 has

neither adduced any evidence to controvert the above said nor plaintiff was cross-examined by defendant no.1 on this aspect.â€​

11.(i)Learned counsel for the appellant/defendant no.1 then argued that the respondent no.2/defendant no.2 in his crossexamination on 26.4.2017Â

agreed that the receipt which is Mark-C, and which was said to be executed on 11.6.2003 by the respondent no.2/defendant no.2 in favour of the

respondent no.1/plaintiff was not given by the respondent no.2/defendant no.2 to respondent

no.1/plaintiff and accordingly it is argued by the appellant/defendant no.1 that the receipt is not proved and hence the suit had to be

dismissed.                          Â

(ii)Trial court in my opinion has rightly rejected this argument by observing that the respondent no.1/plaintiff has proved her case which is not based

only on the receipt but that various other facts and documents have been proved including of the payment of sale consideration to the respondent

no.2/defendant no.2, and the respondent no.2/defendant no.2 not disputing her case. The relevant para of the judgment of the trial court in this

regard is para 18 and this para 18 reads as under:-

“18.The onus to prove this issue is upon the plaintiff. The case of the plaintiff that an agreement to sell was executed  by  the Â

defendant  no.2  in  her  favour  on 11.06.2003  is  supported by  defendant  no.2  who admitted in her

written statement and affidavit in lieu of evidence to have entered into an agreement to sell in her favour in respect of the suit property for a total

sale  consideration  of  Rs.  3,20,000/-.  However,  the original of the said agreement was stated to be in possession of

defendant no.2 and a copy of the said agreement to sell is placed on record and the same is marked as Mark-C. In her cross-examination, she has

deposed that the said Mark-C was prepared in her handwriting and the said agreement does not bear her signature and the original was retained by

her mother. The  plaintiff  has  examined  PW-3  and  PW-4  who stated  that  a  sum  of Â

Rs.  1,50,000/-  was  paid  to defendant  no.2  in  their  presence  on  the  date  of execution of

the agreement to sell Mark-C and they admitted  their  signature  on  the  said  document. Though, the defendant no.2 has

denied in his cross-examination for the first time that Mark-C is not that agreement to sell which has been executed by him, yet the fact remains that

the witnesses have identified their signatures on the said agreement and defendant no.2 has not denied that no agreement was entered into between

him and the plaintiff for the sale of the suit property. The plaintiff has succeeded in proving agreement to sell between her and defendant no.2

and  having  paid  all  the  sale  consideration  of  Rs. 3,20,000/- and thus, the plaintiff is entitled to a decree of Â

specific  performance  qua  the  suit  property. Moreover, the defendant no.2 in his written statement has averred that he had

already received the whole of sale  consideration  from  the  plaintiff  and  he  would abide by the directionÂ

of this court. In view of the aforesaid discussions, defendant no.2 is directed to execute the necessary sale documents in favour of the

plaintiff in accordance with law. Thus, issue no.3 is decided  in  favour  of  the  plaintiff  and  against  the

defendants.â€​

12.I find no illegality in the observations and conclusions of the trial court in para 18 of the impugned judgment and the said observations and

conclusions are therefore upheld more so because the appellant/defendant no.1 led no evidence, did not file her affidavit by way of evidence and did

not step into the witness box to stand the test of cross-examination with respect to her deposition which would have been given in examination-in-

chief.  Â

13.In view of the aforesaid discussion, there is no merit in the appeal. Dismissed. Â

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