Smt. Khazano Devi vs Shri Brahm Pal

Valmiki J Mehta, J.—This Regular First Appeal filed u/s 96 of Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree dated 09.02.1993 dismissing the suit of the appellant/plaintiff filed for possession with respect to the suit property being 500 sq. yds. of land situated in Khasra No. 132 Min., 144, 1109 Min. and 1110 Min. within the Abadi of village Rithala, Delhi. Besides praying for possession, the appellant/plaintiff had also prayed for cancellation of the documents dated 12.8.1981 executed by the appellant/plaintiff in favour of the respondent/defendant with respect to the suit plot of 500 sq. yds. Injunction and mesne profits were also claimed.

The facts of the case are that the appellant/plaintiff filed the subject suit stating that there was an agreement between the appellant/plaintiff and the respondent/defendant for exchanging the suit plot of 500 sq. yds. with the plot of 400 sq. yds. belonging to the father of the respondent/defendant. It was pleaded that this arrangement of exchange of the plot was made so as to park a truck of the appellant/plaintiff and for which parking the plot of the respondent/defendant was more suitable.

It was pleaded that the parties went to the office of the Sub-Registrar on 12.8.1981 when the appellant/plaintiff executed the receipt of a sum of Rs. 40,000/-, and also General Power of Attorney in favour of the respondent/defendant, however, the father of the respondent/defendant never reached the office of the Sub-Registrar. It was pleaded that the respondent/defendant assured that his father will execute the sale deed with respect to the plot of 400 sq. yds. in favour of the appellant/plaintiff in the shortest possible time inasmuch as the father could not reach the office of the Sub-Registrar due to having some work in the district court. It was pleaded that as there were cordial relations between the parties the appellant/plaintiff believed the promise that the father of the respondent/defendant will subsequently execute the documents in favour of the appellant/plaintiff with respect to the plot of 400 sq.yds. It was further pleaded that the appellant/plaintiff thereafter gave the possession of the subject plot to the respondent/defendant and took possession of the plot of 400 sq. yds. from the respondent/defendant. Disputes thereafter arose after about four years in and around February 1985 when it transpired that the respondent/defendant was trying to transfer the suit plot resulting in filing of the suit for permanent injunction against the respondent/defendant by the husband of the plaintiff. This suit for permanent injunction, filed on 8.3.1985, was rejected by the court of Sh. O.P. Gupta, Sub-Judge, Delhi on 7.12.1987 under Order 7 Rule 11CPC. Thereafter subject suit for possession and mesne profits including claiming the relief of cancellation of documents was filed.

The respondent/defendant contested the suit and stated that the appellant/plaintiff has falsely pleaded a case of exchange, and that the transaction in fact, entered into between the parties, was for a sale of the plot of 500 sq. yds. by the appellant/plaintiff in favour of the respondent/defendant, and under which transaction, appellant/plaintiff after receiving a sum of Rs. 40,000/-, executed the necessary documents in the office of the Sub-Registrar, Delhi and one document being the receipt was registered in the Sub-Registrar''s office. It was also pleaded that the fact that the suit was filed after a period of about four years after the alleged fraud was said to have been played, shows the lack of substance in the suit. It was also pleaded that there was no agreement whereby the father of the respondent/defendant was to transfer the plot of 400 sq. yds. to the appellant/plaintiff as was alleged.

The trial court, after pleadings were completed, framed the following issues:

Whether the plaintiff has locus standi to file the suit? OPP

Whether the suit is maintainable? OPP

Whether the suit is within time? OPP

Whether the suit has been properly valued for purposes of court fee and jurisdiction and proper court fee has been paid? OPP.

Whether the documents were executed by the plaintiff, and her husband dated 12.8.81 are null and void and without consideration? If so, its effect? OPP

Whether the plaintiff is entitled to the relief prayed for? OPP

Relief.

The trial court has dismissed the suit by holding that there was no agreement for exchange of plots as pleaded by the appellant/plaintiff. The trial court also held that the appellant/plaintiff received the sum of Rs. 40,000/- under the registered receipt dated 12.8.1981 and had transferred rights in the suit plot to the respondent/defendant. The trial court held that it was not believable that if the appellant/plaintiff had been put in possession of the other plot of 400 sq. yds. on being dispossessed from the same, no Police complaint has been filed considering that an immovable property is a very valuable thing. I, at this stage, must note that the son of the appellant/plaintiff is employed with the Delhi Police as a driver and who could have easily got a criminal complaint registered. Trial court has also referred to various inconsistencies in the deposition of the witnesses of the appellant/plaintiff to hold that the case as put up by the appellant/plaintiff was not believable. The trial court has also referred to the fact that in the earlier suit filed by the husband of the appellant/plaintiff for injunction and which was rejected by Sh. O.P. Gupta, Sub-Judge, Delhi 07.12.1987, there was no mention of plaintiff/appellant having constructed a boundary wall with a room on the suit plot, and which facts were however claimed in the present suit.

In addition to the aforesaid, I find that the case as set up by the appellant/plaintiff, is not believable because of the following inconsistencies:

(i) In para 10 of the plaint it was pleaded that when the parties went for registering the documents on 12.8.1981 with respect to the suit plot, the respondent/defendant replied that his father is likely to come in a short-while as he is busy in some court case in Tis Hazari Court whereas in the evidence which was led by the husband of the appellant/plaintiff-Sh. Ram Pat as PW-1, he stated that the father of the respondent/defendant "disappeared under some pretext", and so the document in favour of the appellant/plaintiff for 400 sq. yds. plot could not be executed.

(ii) As per the deposition made by the said Sh. Ram Pat as PW-1 possession of the suit plot was given to the respondent/defendant in the year 1982 i.e. about one and a half year from 12.8.1981 when the documents were executed.

In my opinion, if the appellant/plaintiff was cheated/defrauded as alleged on 12.8.1981 there was no question of the appellant/plaintiff handing over the possession of the suit plot to the respondent/defendant in 1982 after about a year and a half without getting documents executed in favour of the appellant/plaintiff with respect to the plot of 400 sq. yds. which was alleged that the same was to be exchanged for the suit plot.

(iii) Sh. Siri Kishan-son of the appellant/plaintiff and Sh. Ram Pat-PW1, who deposed as PW-4, stated in his examination-in-chief that the original documents with respect to the suit property were handed over in the year 1984-1985 to the respondent/defendant as the respondent/defendant requested that he be given the original papers so that after showing the same to his father, he can persuade him for execution of the similar documents in favour of the appellant/plaintiff. In my opinion, it is inconceivable that although the appellant/plaintiff claims to have been defrauded and which defrauding continued from August 1981 till 1984-1985, then, yet in such circumstances still the entire original documents of the suit property executed on 12.8.1981 would have been handed over to the respondent/defendant in 1984-85.

(iv) There was no notice issued from August 1981 till the year 1985 to the respondent/defendant of the alleged fraud and of the appellant/plaintiff not having received Rs. 40,000/- and of the fact that the respondent''s/defendant''s father ought to have executed the sale deed with respect to the other plot of 400 sq. yds.

Therefore, in my opinion, the trial court has rightly come to a finding that the appellant/plaintiff has transferred rights in the suit plot to the respondent/defendant after receiving Rs. 40,000/- as consideration and has executed the necessary documents including the receipt of Rs. 40,000/- which was registered before the Sub-Registrar.

Learned counsel for the appellant/plaintiff argued before this Court that the transaction dated 12.8.1981 was bound to fail inasmuch as the appellant/plaintiff has not received Rs. 40,000/-. Firstly, this stand is not believable inasmuch as under normal course of human conduct, no one will execute a receipt, much less register it, although, no amount was paid under the said document. Further, if this consideration was not paid, the appellant/plaintiff had no reason to remain silent from 1981 to 1985 and not send at least a letter, if not a legal notice, that the amount of Rs. 40,000/- has not been received or that the other plot of 400 sq. yds. has not been transferred to the appellant/plaintiff. I have already reproduced four major inconsistencies and circumstances above as to why the stand of the appellant/plaintiff is not believable, in addition to the reasoning given by the trial court.

Another argument of the learned counsel for the appellant/plaintiff was that it was admitted by the respondent/defendant that he did not have even an inch of land in village Rithala and thus the same showed that a fraud was played, because the suit land could never have been exchanged, is an argument without any substance inasmuch as it is not the case in the plaint that it was the respondent/defendant who was to execute any transfer documents with respect to a plot owned by him and even as per the plaint, the stand which was taken up by the appellant/plaintiff that it was the father of the respondent/defendant who was the owner of the plot of 400 sq. yds. and whose plot was to be transferred in favour of the appellant/plaintiff.

The learned counsel for the appellant/plaintiff has finally argued that since the original title deeds of the suit plot by which the suit plot was purchased by the appellant/plaintiff continued to be with the appellant/plaintiff, and therefore, it should be held that the suit plot was never transferred to the respondent/defendant. Of course, normally original title deeds were given to the buyer of the property on the transfer of the property, and the fact that the original documents of the suit property are with the appellant/plaintiff is indeed a salient aspect in favour of the appellant/plaintiff, however, after giving considerable thought, and considering the totality of the facts and circumstances of the present case including of the lack of the credibility in the stand of the appellant/plaintiff and which has already been detailed by me above, on the preponderance of the probabilities, I would hold that merely because the original documents are with the appellant/plaintiff cannot mean that the appellant/plaintiff was defrauded in entering into the documents of the transfer of property dated 12.8.1981. The various reasons, and which I have already reproduced above, and which I am reiterating herein at the risk of the repetition are:- Firstly, the case set up in the plaint was that the father of the respondent/defendant did not come because he was said to be in Tis Hazari Court whereas Sh. Ram Pat, PW-1, husband of the appellant/plaintiff, made a statement that the father of the respondent/defendant suddenly disappeared. Secondly, it is inconceivable that if the appellant/plaintiff was defrauded, yet physical possession of the suit plot would have been handed over after one and a half year of 12.8.1981 (in the year 1982) to the respondent/defendant and even the original documents executed on 12.8.1981 would have been handed over to the respondent/defendant much later in the year 1985 allegedly for being shown to the father of the respondent/defendant. The third important aspect is that if the appellant/plaintiff was put in possession of the plot of 400 sq. yds. and was dispossessed then surely a hue and cry would have been raised by filing of a criminal complaint inasmuch as dispossession of the immovable property is a very serious matter, however, admittedly no criminal complaint was filed. The filing of a criminal complaint by the appellant/plaintiff was very easy because the son of the appellant/plaintiff was an employee of the Delhi Police. Finally, there is also the aspect that the earlier suit which was filed, was filed not on behalf of the appellant/plaintiff but for some strange reason by her husband and in which suit there was no averment of appellant/plaintiff having constructed a boundary wall with a room, a stand which has been taken up thereafter in the present suit. Accordingly, I hold that possibly the respondent/defendant may not have realized the importance of original title documents of the suit property to be with him and when the disputes arose in the year 1985 it would have been too late to ask the appellant/plaintiff for the original title documents of the suit property. I must in the end note that it is not the case of the appellant/plaintiff either in her pleadings or in the evidence of her witnesses that the original title deeds of the suit property in her possession were retained by her because defendant''s father was not executing the necessary transfer documents in her favour of the plot of 400 sq. yds.

A civil case is decided on balance of probabilities. The preponderance of probabilities in the present case leads to the conclusion that the trial court was justified in dismissing the subject suit. A civil court after complete evidence is led, puts the same in a melting pot so as to decide a picture which will finally emerge. The final picture which has emerged in this case was that it cannot be said that the appellant/plaintiff was defrauded as is being claimed and, the appellant/plaintiff had transferred rights in the suit plot to the defendant/respondent under the documents dated 12.8.1981.

In view of the above, the appeal is therefore dismissed with costs of Rs. 10,000/-. Trial court record be sent back.