Delhi District Court
Rajinder Sharma vs Deepak Chaudhary on 16 February, 2026
IN THE COURT OF MS. GOMATI MANOCHA,
DISTRICT JUDGE-02, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 172/16
CNR No. DLNE01-000949-2016
In the matter of:
1. Rajinder Sharma
S/o Sh. K. C. Sharma
R/o H. No. 932, Gali Pattal Wali, Maliwara,
Chandni Chowk, Delhi-110006.
2. Harish Sharma
S/o Sh. Ram Raj Sharma
R/o 4/27, 1st Floor, Roop Nagar,
Delhi-110007. .....Plaintiffs
Versus
1. Deepak Chaudhary
S/o Late Sh. Mahavir Singh
R/o House No. 165, Gali no. 1,
Gopal Pur Village, Delhi-110054.
2. Delhi Development Authority
Through its Chairman,
INA Vikas Sadan, New Delhi.
3. Gunjan @ Kunja
W/o Sh. Dhir Singh
R/o V-273, Shiv Shankar Mohalla,
Ghonda, Delhi-110053. .....Defendants
Date of Institution : 18.05.2012
Date of Reserving Judgment : 16.02.2026
Date of Judgment : 16.02.2026
Final Decision : Decreed
CS No. 172/2016 Rajinder Sharma & Anr. Vs. Deepak Chaudhary & Ors. Page No. 1 of 28
JUDGMENT
1. The present suit has been filed by the plaintiffs against the
defendants seeking the relief of specific performance of contract and
permanent injunction.
2. Plaint
Brief facts, as stated in the plaint are that the the defendant no. 1
represented himself as the absolute owner and in possession of property
bearing no. C-12/80, Yamuna Vihar, Delhi-110053 constructed on the
entire ground floor and first floor on a plot of an area of 70 sq. mtrs.
(hereinafter referred to as the suit property) and approached the plaintiffs
for the sale of the same. The defendant told the plaintiffs that the suit
property was inherited by him from his father Late Sh. Mahavir Singh,
being the only legal heir. The defendant also told the plaintiffs that his
mother Smt. Maya Devi has also expired and hence, he is the sole and
exclusive owner of the suit property. The defendant also informed the
plaintiffs that after the death of his father and mother, the suit property was
mutated by Delhi Development Authority (in short ‘DDA’) in his name as
intimated by the DDA vide letter No. 17(2583)/76/LAB/®/DDA/14519
dated 25.07.2001. The defendant also stated to the plaintiffs that DDA has
also approved the conversion of the property from lease hold to free hold
vide it’s letter No.17 (2503) 76/LAB (Res.)/12069 dated 04.10.2002. Since
the plaintiffs were in the need of a house in the same locality, they
finalized the deal to purchase the suit property with all the fittings and
fixtures for a total sale consideration of Rs. 35 lakhs. At the time of
finalizing the deal i.e. on 25.10.2008, the defendant handed over the copy
of the mutation letter No. 17(2583)/76/LAB/®/DDA/14519 dated
25.07.2001 issued by DDA in his favour and also gave the copy of letter
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No. 17 (2503) 76/LAB (Res.)/12069 dated 04.10.2002 of conversion of the
property from lease hold to free hold. Accordingly, the plaintiffs gave an
amount of earnest money of Rs. 5 lakhs through cheque bearing no.
763969 dated 25.10.2008 in favour of the defendant drawn on Federal
Bank Limited, Fatehpuri, Delhi-110006. Thereafter, plaintiffs made the
payment of entire sale consideration of Rs. 35 lakhs through cheques and
cash on different dates as mentioned in the agreement to sell and purchase.
The defendant executed agreement to sell, GPA and Will, all dated
11.05.2011 before the Sub Registrar-IV, Seelampur, Delhi in favour of the
plaintiffs in the presence of two witnesses namely Sh. Ram Raj Sharma
and Sh. Tanveer Alam. The agreement to sell dated 11.05.2011 executed by
the defendant in favour of plaintiffs with regard to the suit property was
got registered in the office of Sub Registrar-IV, Seelampur, Delhi vide
registration no. 954 in book no. 1, volume no. 4330, on page 161-165
dated 03.06.2011. The Will dated 11.05.2011, executed by the defendant
no. 1 in favour of the plaintiffs with regard to the suit property was also got
registered vide registration no. 497, in book no. 3, volume no. 3481, on
page 102 dated 12.05.2011. A GPA was also got executed by the defendant
in favour of the plaintiffs with regard to the suit property and was
registered vide registration no. 560, in book no. 4, volume no. 10779 on
page 132 to 134 dated 12.05.2011. On 11.05.2011, the defendant also
handed over the vacant and peaceful possession of the entire suit property
to the plaintiffs and got a possession letter executed dated 11.05.2011.
Since the plaintiffs paid the entire amount of sale consideration for
purchase of the suit property, they requested the defendant to execute the
sale deed. However, on the request of the defendant only the aforesaid
documents were executed by the defendant in favour of the plaintiffs and
assured the plaintiffs that he would execute the sale deed subsequently.
The plaintiffs requested the defendant a number of times to execute the
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documents of transfer such as sale deed for transfer of the suit property in
favour of the plaintiffs which he is legally bound to do, but he avoided the
same on one pretext or the other. The plaintiffs have already completed
their part of the contract by making the payment of the entire sale
consideration. However, the defendant is not coming forward to execute
the necessary transfer documents which he is legally bound to do so.
On 27.04.2012, the plaintiffs came to know from one property dealer
that the defendant is negotiating with some other persons to sell the suit
property. On being questioned, the defendant started extending threats to
the plaintiffs stating that he shall create third party interest in the suit
property. In these circumstances, the present suit has been filed.
3. Written statement of defendant no. 1
Written statement has been filed on behalf of defendant no. 1 in
which apart from denying the allegations/contentions of the plaintiffs, it is
stated that the plaintiffs have filed the present suit on the basis of false and
fabricated documents and the defendant no. 1 has already initiated
appropriate criminal proceedings against the plaintiffs and their relative
Adv. Bhagat Raj Sharma. It is stated that the defendant no. 1 never entered
into any talks regarding sale of the suit property to the plaintiffs. It is stated
that the defendant no. 1 was having cordial relations with the plaintiffs as
the plaintiffs are the relatives of Mr. Bhagat Raj Sharma, who has been a
family lawyer of defendant no. 1 for a very long time. The plaintiffs have
taken a loan of Rs. 40 lakhs from the defendant no. 1 and the same was
repaid by them to the defendant no. 1 through cheques and cash. All the
payments were made by the plaintiffs as against loan taken by the
plaintiffs. It is stated that the defendant no. 1’s father namely Mahavir
Singh was the lawful owner of the suit property. The plaintiffs had been
told mistakenly that the said property had been sold by the father of
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defendant no. 1 to one Vinod Kumar. Further, Vinod Kumar had sold the
suit property to Sh. Jagdish Singh. However, the suit property was not sold
by the father of defendant no. 1 and all the time the mother of defendant
no. 1 alongwith the defendant had been in the possession of suit property.
The father of defendant no. 1 had died in 1995. After the death of father of
defendant no. 1, the property was mutated by the DDA in the name of the
defendant no. 1. However, the defendant no. 1 was under the wrongful
impression that the property had been sold by his father to Vinod Kumar.
Some anti-social elements moved applications in the DDA against the free
hold proceedings of the suit property. The defendant no. 1 was under the
bonafide impression that one Jagdish Singh had become the owner of the
property, who had allowed the defendant no. 1 to reside in the suit property
as licensee and directed the defendant no. 1 to file a suit in Tis Hazari
Courts against those persons, who were moving applications before the
DDA against free hold proceedings. Defendant no. 1 and his mother had
engaged Mr. Bhagat Raj Sharma as their counsel in Tis Hazari Courts. In
2012, the defendant no. 1 was not inclined to spend much time in Court
proceedings and he was in search of a Parokar. Sh. Bhagat Raj Sharma,
who was the counsel of defendant no. 1 advised the defendant no. 1 to
appoint Sh. Harish Sharma as Parokar. Sh. Bhagat Raj Sharma stated that
Sh. Harish Sharma (i.e. plaintiff no. 2) is his nephew. The defendant no. 1
acting upon the advice of his counsel, reached the office of Sub-Registrar
for the purpose of executing Special Power of Attorney in favour of Sh.
Harish Sharma for the purpose of appointing him as his Parokar. Sh.
Bhagat Raj Sharma was also present at the office of the Sub Registrar and
under his instructions, the defendant no. 1 put his signatures on the
documents with the intention to appoint Parokar. Subsequently, the
defendant no. 1 came to know about the fraud committed by Sh. Bhagat
Raj Sharma in collusion with the plaintiffs. The plaintiffs with the help of
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Sh. Bhagat Raj Sharma forged and fabricated documents regarding sale of
the suit property. Hence, the defendant no. 1 filed a complaint case against
the Bhagat Raj Sharma and the plaintiffs herein. Sh. Jagdish Singh
clarified that the defendant no. 1 is the legal owner of the suit property as
the suit property has been mutated in the name of defendant no. 1. Earlier,
the defendant no. 1 was under a bonafide mistake regarding ownership of
the suit property. Sh. Jagdish Singh had settled his interest with defendant
no. 1 and he was paid his outstanding amount by defendant no. 1. After
settlement with Jagdish Singh, the defendant no. 1 being lawful owner of
the suit property sold the same to one Saddam Malik S/o Sh. Sher Khan
Malik for a lawful consideration of Rs. 52 lakhs. The defendant no. 1
executed agreement to sell, dated 03.10.2013 and other necessary
documents before Sub-Registrar in favour of Sh. Saddam Malik. The
possession of the suit property was also handed over to Sh. Saddam Malik,
who is now in settled possession of the same. Denying the rest of the
contents of the plaint, the defendant no. 1 sought dismissal the suit of the
plaintiffs.
Written statement of defendant no. 2/DDA
Written statement has been filed by defendant no. 2 stating that no
relief has been claimed against defendant no. 2 and therefore, he is neither
a necessary nor property party. It is admitted that the plaintiff had enquired
from defendant no. 2/DDA whether conveyance deed of Plot No. C-12/80
at Yamuna Vihar, Delhi had been executed in favour of Sh. Deepak
Chaudhary, defendant no. 1. It was informed by defendant no. 2 i.e. DDA
to the plaintiffs that substitution was allowed in favour of Sh. Deepak
Chaudhary vide letter dated 25.07.2001. Further, the plaintiff was informed
that the conveyance deed papers were issued to Sh. Deepak Chaudhary
vide letter dated 04.10.2002. It is submitted that as per the record of DDA,
the suit property was originally leased out in favour of Ms. Shamshad
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Begum on 14.03.1977. The property was sold to Sh. Mahavir Singh on the
basis of GPA and agreement to sell. Sh. Mahavir Singh had applied to
DDA for conversion of the said property from lease hold to free hold. The
case was processed and the conveyance deed was issued to him on
14.03.1977. However, before the conveyance papers could be returned to
defendant no. 2/DDA by Sh. Mahavir Singh, the GPA holder expired.
Thus, his son Sh. Deepak Chaudhary, defendant no. 1 applied for
substitution as well as conversion of the abovesaid property to free hold
property. The plaintiff moved an application for execution of conveyance
deed of the suit property in his favour. The plaintiff was informed by
defendant no. 2/DDA that the conversion application could not be
proceeded with as the issue of title of plot was sub-judice. On 10.03.2005,
defendant no. 1 made a representation to defendant no. 2 that some
unscrupulous persons were trying to grab the suit property by way of
conversion. The defendant no. 1 had requested to defendant no. 2/DDA not
to accept such conversion papers as the matter was under litigation against
Sh. Jai Pal Singh and his wife Smt. Lata. In reply to the application by the
plaintiff, the defendant no. 2/DDA had duly informed the plaintiff that the
conversion had been entered in favour of the plaintiff with respect to the
suit property. Further, plaintiff was informed that the conveyance deed
papers were issued to defendant no. 1 vide letter dated 04.10.2002. Further,
as the issue of title of the suit property was sub-judice therefore, the
application by the plaintiff for execution of conveyance deed in his favour
could not be proceeded with.
Written statement of defendant no. 3
Written statement has also been filed by the defendant no. 3 in
which she stated that she was made a party to the suit on 22.09.2020. She
stated that she purchased the built up entire property bearing no. C-12/80
(plot no. 80, in Block No. C-12), measuring 70 sq. mtrs. i.e. 80 sq. yards
CS No. 172/2016 Rajinder Sharma & Anr. Vs. Deepak Chaudhary & Ors. Page No. 7 of 28
situated in layout plan of Yamuna Vihar, Delhi-110053 vide registered
GPA, Will and agreement to sell, all dated 10.02.2011 supported by
Special Power of Attorney, affidavit, undertaking, receipt and possession
letter, all dated 10.02.2011 duly attested by Notary Public for a
consideration amount of Rs. 34,75,000/- from Sh. Syed Afzal Hussain. It is
stated that initially the suit property was allotted by the DDA in favour of
Ms. Shamshad Begum vide perpetual lease deed dated 14.03.1977 who
further sold it to Smt. Maya Devi, who further sold it to Sh. Harish Kumar
S/o Late Sh. Raj Pal Singh, who further sold it to Sh. Salimuddin, who
further sold it to Sh. Syed Afzal Hussain, who further sold it to the
defendant no. 3 (present defendant no. 3) vide registered GPA registered as
registration no. 154, in book no. 4, volume no. 10769, on page 175 to 178
on 10.02.2011, agreement to sell duly registered as registration no. 294 in
book no. 1, volume no. 4308 on page 135 to 142, dated 10.02.2011 and
Deed of Will duly registered as registration no. 164, in book no. 3, volume
no. 3476, on page 62 to 64 on 12.02.2011 before the Sub Registrar-IV,
Delhi. Further some other supporting documents like SPA, affidavit,
undertaking, receipt and possession letter, all dated 10.02.2011 were also
executed by the seller in favour of defendant no. 3. Also, possession letter
was issued in favour of defendant no. 3. The defendant no. 3 intended to
let out the said property on rent but the husband of the defendant no. 3
could not find a suitable tenant and the said property remained vacant. Due
to certain health related issues, defendant no. 3 could not look after the
property till the year 2017 and thereafter applied before DDA for
conversion of lease hold to free hold of the suit property. The same is
pending. On 21.02.2017 when the husband of defendant no. 3 visited the
suit property, he came to know that certain persons had illegally occupied
the same. On enquiry, the names of those persons were revealed as
Saddam Malik and Sher Khan Malik (father and son). These persons
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threatened the husband of the defendant no. 3, to leave the spot
immediately. Finding no other way, the husband of defendant no. 3 made a
PCR call to police at 6:17 pm of the same day. However, the police did not
take any action. Thereafter, defendant no. 3 made a written complaint
before Deputy Commissioner of Police, North East District vide complaint
dated 04.03.2017 and also forwarded the copy of the same to SHO, PS
Bhajanpura, Delhi vide DD No. 50B dated 04.03.2017. Defendant no. 3
also forwarded the copy of said complaint to Hon’ble LG of Delhi vide
Diary No. 9499 dated 08.03.2017. In March 2019, the defendant no. 3
came to know from Sher Khan Malik that he alongwith his son Saddam
Malik have become the absolute owner of the suit property. The defendant
no. 3 sent a legal notice to Saddam Malik and Sher Khan Malik vide
registered AD on 06.06.2019 which were duly received by them and
subsequently a reply was received by defendant no. 3 on 07.07.2019. It is
stated that the plaintiffs or defendant no. 1, have no right, title or interest in
the suit property. It is stated that in the year 2009, defendant no. 1 had filed
a suit before the Court of Ld. District Judge, North East against Sh. Harish
Kumar and Anr. vide Civil Suit No. 429228/2009 for declaration,
mandatory and permanent injunction which was dismissed as withdrawn
on the statement of defendant no. 1, on 15.09.2012. Defendant no. 1 had
categorically admitted defendant no. 3, as true and lawful owner of the suit
property. It is further stated that the agreement to sell and the documents
purportedly executed by defendant no. 1 in favour of the plaintiffs are on
the basis of a substitution letter dated 25.07.2001 which clearly mentions
the name of Late Mahavir Singh, the agreement to sell holder qua the suit
property. It is stated that the DDA substitutes the name of subsequent
purchaser on the basis of agreement to sell therefore, the appropriate
remedy in the hands of the plaintiffs would have been to approach the
DDA rather than approaching this Court for relief. It is submitted that the
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defendant no. 1 submitted fake and fabricated documents before DDA to
obtain conveyance deed in his favour. However, till date the property has
not been converted into free hold property and is still a lease hold property.
The letter of substitution and offer of conveyance letter issued by DDA are
based on the documents submitted before the DDA by defendant no. 1.
However, no background check of the documents has been done by DDA
and the letter issued by the DDA clearly stipulates that in case the
documents submitted by the applicant are found to be false or mis-
statement, then it would be treated as a case of concealment of facts, fraud
and substitution be treated as cancelled. It is stated that defendant no. 1 has
no right, title or interest in the suit property since the Will of Late Sh.
Mahavir Singh was not in favour of defendant no. 1, till his mother was
alive. As a matter of fact, during the lifetime of Smt. Maya Devi, she had
already sold the property to Sh. Harish Kumar son of Late Sh. Raj Pal
Singh on 04.04.2001, who further sold it to Sh. Salimuddin, who further
sold it to Sh. Sayad Afzal Hussain, who further sold it to defendant no. 3,
vide agreement to sell, GPA, Deed of Will, etc. registered on 12.02.2011
before Sub Registrar-IV, Delhi. Also supporting documents like SPA,
affidavit, undertaking, receipt and possession letter, all dated 10.02.2011
were also executed by the seller in favour of defendant no. 3. It is stated
that the defendant no. 1 could not have executed any document in favour
of the plaintiffs as no one can transfer a better title than he himself has. In
these circumstances, defendant no. 3 has prayed for dismissal of the suit of
the plaintiffs.
4. Replication
Despite opportunities given, replication was not filed.
5. Admission/denial of documents
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The Ld. Counsel for the defendant has admitted five documents filed
on behalf of the plaintiff as the same are marked as Ex.P1 to Ex.P5. Rest of
the documents are denied. Ex.P3 and Ex.P4 (signatures admitted and
contents denied). Signatures admitted and contents denied on original Will
marked as Ex.P5.
6. Issues
On the basis of pleadings, the following issues were framed:-
(i) Whether the plaintiff is entitled to a decree of
specific performance of contract in respect of suit
property i.e. C-12/80, Yamuna Vihar, Delhi-110053,
along with its fittings and fixtures as per terms of
the agreement to sell dated 11.05.2011? OPP
(ii) Whether the plaintiff is entitled to a decree of
permanent injunction restraining the defendants
from selling or creating any third party interest in
the suit property? OPP
(iii) Whether the plaintiff has played any fraud
upon the defendants with regard to the cause of
action of the agreement? OPD
(iv) Relief.
7. Plaintiffs’ evidence
Plaintiffs led their piece of evidence.
PW1
Plaintiff no. 1 Sh. Rajinder Sharma appeared as PW1 and tendered
his evidence by way of affidavit Ex.PW1/A and relied upon the following
documents i.e.
(i) Application in CS No. 228/09 which is Ex.P1.
(ii) Court order dated 18.09.2012 which is Ex.P2.
(iii) GPA, agreement to sell, Will with regard to the suit
property are Ex.P3 to Ex.P5.
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(iv) Document of possession dated 11.05.2011 is Ex.PW1/1.
(v) Reply on behalf of DDA dated 03.05.2014 is Mark A.
(vi) Document dated 25.07.2001 issued by DDA in favour
of Sh. Deepak Chaudhary with regard to mutation of his
name in the suit property is Mark A.
(vii) Document dated 04.10.2001 issued by DDA in favour
of Deepak Chaudhary regarding conversion from lease hold
to free hold is Mark B.
(viii) Electricity bill in favour of Deepak Chaudhary is
Mark C.
(ix) Letter from DDA regarding receipt of free hold
conversion form (running into 2 pages) is Mark D.
(x) House tax receipt is Mark E.
(xi) Receipt of amount received by the defendant is Mark
F.
PW1 was cross-examined at length. In his cross-examination, he
stated that he knows defendant no. 1, since 2008 through a broker Tanveer
Ahmed. Tanveer Ahmed was the broker/mediator in this case and he had
paid 2% commission to him but he had not issued any receipt for the same.
He could not tell whether he is a registered broker or not. Commission was
paid at different times and different amounts. Some part of the commission
was paid before execution of the documents whereas the remaining
amount was paid after their execution. Deal was finalized with defendant
no. 1 at one time at his shop at Chandni Chowk but he did not remember
the date. However, he stated that it was in the month of August 2008.
Defendant no. 1 and Tanveer Ahmed were brought to his shop by one
Deepak who used to live at Malivara, Chandni Chowk. He paid Rs. 5 lakhs
through cheque to defendant no. 1 on the day when the deal was finalized.
No bayana agreement was written on that day. He had seen the suit
property twice before giving the aforesaid amount. However, he did not
remember the date. The rate of suit property and other things were verified
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through Sh. Jain who is living in Yamuna Vihar. Defendant no. 1 alongwith
his mother were in the suit property when they went to see the suit
property. He stated that he knows plaintiff no. 1 through his father prior to
the deal of the suit property. Plaintiff no. 2 and he are equal partners in the
suit property. However, no written partnership deed was executed between
them. He does not know if plaintiff no. 2 is related to Bhagat Raj Sharma,
Advocate. They have filed an application before DDA for executing
conveyance deed in their favour. The same is pending. He admitted that the
suit property is still in the name of defendant no. 1 and is free hold. He
denied the suggestion that the amount given to defendant no. 1 for the sale
of the suit property is repayment of a loan. He admitted that they have not
lived in the suit property and does not know who currently lives in the suit
property. He was not aware whether the suit property has been sold by
defendant no. 1 to Saddam Malik who is in possession. Mark F was
prepared alongwith transfer documents at Nand Nagri. He could not tell as
to whose seal is on the document. He did not remember the day when the
document was written and it was not registered. He denied the suggestion
that document Mark F was never executed by the defendant. He denied the
suggestion that during the relevant period, plaintiff no. 2 was working with
Advocate Bhagat Raj Sharma who was the previous counsel for defendant
and some blank papers were got signed by plaintiff no. 2 from defendant
for the appointment of SPA to look after the litigation of defendant pending
with the Advocate Bhagat Raj Sharma. He did not know if defendant no. 1
made any complaint against them. Police had enquired from them about
the suit property. He was also not aware if the defendant filed complaint
under section 156 Cr.PC against the plaintiffs.
PW2
Sh. Ram Karan, UPC, LAB Residential, DDA, INA, New Delhi
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brought the summoned record of Plot No. 80, Block C-12, Yamuna Vihar,
Delhi in File No. F-17 (2503), LAB Residential and proved letter dated
04.10.2002, regarding conversion of lease hold Plot No. 80, Block C-12,
Yamuna Vihar, Delhi in favour of Deepak Chaudhary. The same is
Ex.PW2/1 alongwith conveyance deed in favour of Deepak Choudhary
which is Ex.PW2/2. Letter of substitution of aforesaid property dated
25.07.2001 in favour of Deepak Choudhary is Ex.PW2/3. Receipt of
conversion form of suit property received from Rajinder Sharma and
Harish Sharma is Ex.PW2/4.
PW3
Sh. Gopal Dutt, Baillif, Sub Registrar-IV, Seelampur, brought the
summoned record i.e. agreement to sell Ex.P4, Will Ex.P5, GPA Ex.P3. He
stated that all the above documents have been executed by Deepak
Choudhary regarding property no. 80, Block C-12, Yamuna Vihar, Delhi in
favour of Rajinder Sharma and Harish Sharma.
8. Defendant’s evidence
After closing of plaintiffs’ evidence, defendants led their evidence.
DW1
Defendant no. 1 appeared as DW1 and tendered his evidence by way
of affidavit Ex.DW1/A and relied upon document i.e. Ex.DW1/1 (which is
a photocopy).
DW1 was cross-examined at length. In his cross examination, he
stated that he has studied upto 10th class. He can read English but cannot
understand the same fully. He admitted his signatures on receipt dated
11.05.2011 which is Ex.DW1/P1. He voluntarily stated that the amount
mentioned in the receipt was given on different dates and was pertaining to
some earlier transactions. He admitted his signatures on affidavit dated
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11.05.2011 which is Ex.DW1/P2 but denied the contents of para 4, 5 & 6
of the affidavit. He admitted the electricity bill Ex.DW1/P3 which is in his
name. He denied the suggestion that he never engaged Sh. Bhagat Raj
Sharma as his counsel in any case. He denied that he never appointed any
Parokar or executed any document in the year 2012 as stated in para 11 of
his affidavit. He denied that all the allegations levelled in para 11 against
Sh. Bhagat Raj Sharma are false. He has not filed any document on record
which was allegedly executed in the year 2012 by plaintiffs or SPA Sh.
Harish Sharma. He voluntarily stated that those documents were executed
in 2013 but again said, those documents are pertaining to the year 2011.
He admitted the documents Ex.P3, Ex.P4 and Ex.P5 were executed by
him. However, he stated that he does not know it’s contents. He stated that
he did not read or understand the contents of these documents at the time
of signing the same. He denied the suggestion that Sh. Bhagat Raj Sharma
was not his family lawyer. He did not file any document on record to show
that Sh. Bhagat Raj Sharma was engaged by him ever in any case or he
had signed any vakalatnama in any case. He voluntarily stated that Sh.
Bhagat Raj Sharma had signed in his previous case. He had not given any
loan of Rs. 450 lacs as mentioned in para 9 of his affidavit. He voluntarily
stated that the loan amount might be Rs. 45 lacs and there is a
typographical mistake. He stated that he did not file any document of loan
as it was given orally. He had not issued any notice to the plaintiff for
recovery of such loan amount. He had not filed any case for recovery of
loan amount. He got a receipt prepared of giving loan to the plaintiff but he
has not filed the same on record. No loan agreement was executed with the
plaintiff. He had not mentioned the fact of giving loan in his police
complaint Ex.DW1/4. He admitted application Ex.P1 in case titled as
Deepak Choudhary Vs. Harish Kumar. He denied the suggestion that he
could not sell the property again in the year 2013 to Sh. Saddam Malik
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vide agreement Ex.DW1/1 when he had sold the same to Smt. Kunjo Devi
as stated in Ex.P1 because he had no right, title or interest in the property.
He denied that the documents Ex.DW1/1 are forged and fabricated and
prepared in collusion with Saddam Ali to deprive the plaintiff of his
property. He denied that the complaint Ex.DW1/4 is a false complaint. He
did not file any case for cancellation of documents Ex.P3, Ex.P4 and
Ex.P5. He voluntarily stated that he had filed only police complaint. He
did not remember whether he had mentioned in police complaint that these
documents are forged and fabricated and are required to be cancelled. He
stated that he is not in possession of the suit property as on date.
DW2
ASI Bijender Singh, No. 585, North-East, PS Bhajanpura, Delhi
stated that the record of complaint dated 03.05.2013 was summoned from
PS Bhajanpura but the old record containing the complaint register upto
31.12.2013 has already been destroyed as per the order of DCP, North-
East. The report of SHO PS Bhajanpura, dated 19.02.2018 is Ex.DW2/A.
DW3
Sh. Gopal Dutt, Record Keeper, Office of Sub Registrar-IV,
Seelampur, Delhi brought the summoned record of GPA already
Ex.DW1/1 (colly). The same was registered at the office of Sub Registrar-
IV, Seelampur on 05.10.2013 at registration no. 1190, book no. IV, volume
no. 10900 at pages 152 to 157.
9. Arguments
I have heard the arguments advanced on behalf of parties and
perused the case file carefully. Written submissions filed on behalf of the
plaintiffs have also been perused very carefully.
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At the stage of final arguments, defendant no. 3 has made a
statement before the Court that she has entered into a compromise with the
plaintiffs. Now she does not claim any right, title or interest in the suit
property and has prayed that the present case may be decided accordingly.
In view of the statement made by the defendant no. 3 in the Court
which has been recorded separately, vide this judgment, the Court shall
only decide the rights of the remaining parties.
10. Reasons and analysis/finding
Issue no. 1 & 3:
Issue no. 1 is whether the plaintiff is entitled to a decree of specific
performance of contract in respect of suit property i.e. C-12/80, Yamuna
Vihar, Delhi-110053
Issue no. 3 is Whether the plaintiff has played any fraud upon the
defendants with regard to the cause of action of the agreement?
The onus to prove issue no. 1 is on the plaintiff while the onus to
prove issue no. 3 is on the defendant. Before discussing my findings on
these issues, it is necessary to first understand the concept of burden of
proof.
Section 101 of the Indian Evidence Act, 1872 says “whoever
desires any Court to give judgment as to any legal right or liability
dependent on the existence of facts which he asserts, must prove that those
facts exist. When a person is bound to prove the existence of any fact, it is
said that the burden of proof lies on that person. Section 102 provides
upon whom burden of proof lies. It has been provided that the burden of
proof in a suit or proceeding lies on that person who would fail, if no
evidence at all were given on either side. Section 103 of the Act provides
that the burden of proof as to any particular fact lies on that person who
wishes the Court to believe in its existence, unless it is provided by anyCS No. 172/2016 Rajinder Sharma & Anr. Vs. Deepak Chaudhary & Ors. Page No. 17 of 28
law that the proof of that fact shall lie on any particular person, and lastly
Section 104 of the Act provides that the burden of proving any fact
necessary to be proved in order to enable any person to give evidence of
other fact is on the person who wishes to give such evidence. Therefore,
the total effect of evidence is determined at the end of a proceeding not
merely by considering the general duties imposed by Sections 101 and 102
of the Evidence Act but also the special or particular ones imposed by
other provisions such as Sections 103 and 106 of the Evidence Act.
Reliance is placed upon A. Raghavamma v. A. Chenchamma, AIR 1964
SC 136 and R.V.E. Venkatachala Gounder v. Arulmigu
Viswesaraswami & V.P. Temple & Anr, (2003) 8 SCC 752.
In this case, the plaintiff has alleged the execution of registered
GPA, agreement to sell, Will, etc. in his favour by defendant no. 1. The
defendant no. 1 has also not denied his signatures on the aforesaid
documents. He has however, stated that these documents were executed by
him under a misunderstanding and on the assurance given by Sh. Bhagat
Raj Sharma, Advocate that he is executing the same for appointment of an
SPA.
Section 91 of the Indian Evidence Act, 1872, embodies the “best
evidence rule,” stating that when terms of a contract, grant, or other
disposition of property are reduced into writing, no evidence, except the
document itself or secondary evidence where permissible, can be given to
prove those terms. It mandates that written records are the sole proof for
legal transactions, excluding contradicting oral testimony.
Section 92 of the Indian Evidence Act, 1872 prohibits the
admission of oral evidence to contradict, vary, add to, or subtract from the
terms of a written contract, grant, or disposition of property. It applies once
a document has been proved under Section 91, ensuring written
agreements take precedence over oral claims between parties. However,
CS No. 172/2016 Rajinder Sharma & Anr. Vs. Deepak Chaudhary & Ors. Page No. 18 of 28
there are certain exceptions, one of which is contained in proviso 1 of
section 92 of the Evidence Act. Section 92 Proviso (1) allows admission of
oral evidence to prove facts that invalidate a written document or entitle a
party to a decree, such as fraud, intimidation, illegality, want of capacity,
failure of consideration or mistake.
However, the general rule is he who alleges fraud must prove it.
Burden lies on the party alleging fraud to prove it. Fraud is not to be
presumed, it must be proved. Reliance is placed upon A.V. Papayya Sastry
Vs. Govt. of A.P. (2007) 4SCC 221. When signature is admitted,
presumption of valid execution of document arises. The burden becomes
heavier on the person alleging fraud. Degree of proof required to be proved
is higher and clear, cogent and convincing evidence is required to prove
the allegations of fraud. Also, contemporaneous conduct is required to
prove fraud. Self serving oral statement alone is not sufficient.
Thus, it is trite that once signature is admitted on a document the
initial burden upon the person relying upon the same is discharged. Now, it
is upon the opposite side to prove that any fraud was committed upon him.
Admission of signature raises a presumption that the document was
executed properly, unless rebutted by strong evidence. Strict proof of fraud
etc. invalidating the document is required.
Coming to the facts of the case. In this case, the defendant has not
led sufficient evidence to prove fraud as alleged. The defendant has also
not been able to explain the execution of so many documents for the
purpose of SPA. Defendant no. 1 has alleged that he had executed
documents Ex.P3 to Ex.P5 for the appointment of an SPA or Parokar. He
has not placed any document allegedly signed by the said Parokar in any
case.
DW1 has admitted execution of the documents Ex.P3, Ex.P4 and
Ex.P5. However, he stated that he does not know it’s contents. He stated
CS No. 172/2016 Rajinder Sharma & Anr. Vs. Deepak Chaudhary & Ors. Page No. 19 of 28
that he did not read or understand the contents of these documents at the
time of signing the same. If a person signs a document voluntarily and he
is literate and competent then, he is bound by it’s contents. He cannot later
on say that he did not read or understand it. This vague plea taken by
defendant no. 1 has to be rejected.
Further, the conduct of defendant no. 1 in not seeking cancellation of
documents later on, also fortifies that the plea taken by him is a sham.
Defendant no. 1 also could not tell whether he had mentioned in police
complaint that these documents are forged and fabricated and are required
to be cancelled. Thus, the onus upon the defendant no. 1 to prove fraud is
not discharged.
As per the agreement to sell executed between defendant no. 1 and
the plaintiffs, various sums of money were received by defendant no. 1.
The details of these payments have been mentioned in para 1 of the said
agreement. DW1 has also admitted his signatures on receipt dated
11.05.2011 which is Ex.DW1/P1. As regards this, the defendant no. 1 has
stated that he had advanced a loan to the plaintiff and the payment was
made towards satisfaction of that loan. This is in contradistinction to what
has been mentioned in receipt Ex.DW1/P1, as per which the said amount
was full and final payment of consideration amount of the sale of property
bearing Municipal No. C-12/80, Yamuna Vihar, Delhi, as mentioned in
agreement to sell executed on 09.05.2011. This receipt has been notarized
on 11.05.2011. However, to substantiate this plea, the defendant no. 1 has
also not filed any document of loan. He has stated that it was given orally.
He did not issue any notice to the plaintiff for recovery of such loan
amount. He has stated that he had got a receipt prepared for giving loan to
the plaintiff but he has not filed the same on record. He had also not
mentioned the fact of giving loan in his police complaint Ex.DW1/4.
Therefore, in the facts of the case, it is very difficult to accept the
CS No. 172/2016 Rajinder Sharma & Anr. Vs. Deepak Chaudhary & Ors. Page No. 20 of 28
contention that defendant no. 1 that amounts paid were in lieu of
satisfaction of a loan.
Now, the question arises as to what rights accrue in favour of the
plaintiffs on the basis of GPA, Agreement to Sell, Will, Receipt etc. This
position has been well explained in the judgment of Suraj Lamp &
Industries (P) Ld.Tr.Dir vs State Of Haryana & Anr decided on 11
October, 2011, AIR 2012 SUPREME COURT 206, in which, the
Hon’ble Supreme Court has held:
“that immovable property can be legally and lawfully
transferred/conveyed only by a registered deed of
conveyance.
Transactions of the nature of `GPA sales’ or
`SA/GPA/WILL transfers’ do not convey title and do not
amount to transfer, nor can they be recognized or valid
mode of transfer of immoveable property. The courts will
not treat such transactions as completed or concluded
transfers or as conveyances as they neither convey title
nor create any interest in an immovable property.
They cannot be recognized as deeds of title, except to the
limited extent of section 53A of the TP Act. Such
transactions cannot be relied upon or made the basis for
mutations in Municipal or Revenue Records. What is
stated above will apply not only to deeds of conveyance in
regard to freehold property but also to transfer of
leasehold property. A lease can be validly transferred only
under a registered Assignment of Lease. It is time that an
end is put to the pernicious practice of SA/GPA/WILL
transactions known as GPA sales.
17. It has been submitted that making declaration that GPA
sales and SA/GPA/WILL transfers are not legally valid
modes of transfer is likely to create hardship to a large
number of persons who have entered into such
transactions and they should be given sufficient time to
regularize the transactions by obtaining deeds of
conveyance. It is also submitted that this decision should
be made applicable prospectively to avoid hardship.
18. We have merely drawn attention to and reiterated the
well-settled legal position that SA/GPA/WILL transactions
are not `transfers’ or `sales’ and that such transactionsCS No. 172/2016 Rajinder Sharma & Anr. Vs. Deepak Chaudhary & Ors. Page No. 21 of 28
cannot be treated as completed transfers or conveyances.
They can continue to be treated as existing agreement of
sale.
Nothing prevents affected parties from getting registered
Deeds of Conveyance to complete their title. The said
`SA/GPA/WILL transactions’ may also be used to obtain
specific performance or to defend possession under section
53A of TP Act. If they are entered before this day, they may
be relied upon to apply for regularization of
allotments/leases by Development Authorities. We make it
clear that if the documents relating to `SA/GPA/WILL
transactions’ has been accepted acted upon by DDA or
other developmental authorities or by the Municipal or
revenue authorities to effect mutation, they need not be
disturbed, merely on account of this decision.
19. We make it clear that our observations are not intended
to in any way affect the validity of sale agreements and
powers of attorney executed in genuine transactions.”
As regards transactions prior to judgment in Suraj Lamp‘s case i.e.
11.10.2011, the Hon’ble Supreme Court held that GPA sales do not convey
title but as the judgment operates prospectively, the same does not
invalidate genuine transactions executed prior to the decision. Though only
registered sale deed/conveyance deed confers title but registered GPA,
Will, agreement to sell, etc. can be admitted as evidence of possession,
evidence of part performance under section 53A of the Transfer of
Property Act and the same can also form the basis for seeking the relief of
specific performance.
In this case, the GPA, agreement to sell, Will, etc. are registered.
The agreement to sell contains the details of payment. Also, receipt
Ex.DW1/P1 contains details regarding various payments made by the
plaintiff to defendant no. 1. The possession letter Ex.PW1/1 was also
executed. These facts tilt the balance in favour of the plaintiff that these
transactions are genuine and as the relief of specific performance is an
CS No. 172/2016 Rajinder Sharma & Anr. Vs. Deepak Chaudhary & Ors. Page No. 22 of 28
equitable relief, the same should be granted in favour of the person in
whose favour equity lies. This is in conformity with Suraj Lamp‘s case as
per which genuine transactions prior to the judgment are not disturbed.
For a suit for specific performance to succeed, certain conditions
must be met. The plaintiff must prove a concluded contract, lawful
consideration, certainty of terms as per section 29 of the Contract Act,
lawful object, and competence of the parties. Also, identity of a property
and sale consideration amount should be clear. Further, the plaintiff must
also prove continuous readiness and willingness to perform his part of the
contract from the date of the contract till the date of the decree. Readiness
and willingness implies financial capacity to pay the balance sale
consideration and the conduct consistent with the intention to perform the
contract.
Conduct of the parties
In the instant case, the plaintiff had paid the entire sale
consideration. This itself shows the readiness or willingness of the plaintiff
to perform the contract. Further, as per the plaint, the plaintiff kept on
demanding performance of the contract from defendant no. 1, who refused
to do so.
As per the testimony of PW2, Ex.PW2/1 is a letter dated 04.10.2002
regarding the conversion of lease hold property into free hold property.
This letter has been issued by Deputy Director (LA) DDA in favour of
defendant no. 1 and the conveyance deed executed by DDA in favour of
defendant no. 1 is Ex.PW2/2. Letter of substitution of property Ex.PW2/3
is in favour of defendant no. 1.
Defendant no. 2/DDA in the written statement has stated that the
plaintiff had enquired from defendant no. 2/DDA whether conveyance
deed of Plot No. C-12/80 at Yamuna Vihar, Delhi had been executed in
favour of Sh. Deepak Chaudhary, defendant no. 1. It was informed by
CS No. 172/2016 Rajinder Sharma & Anr. Vs. Deepak Chaudhary & Ors. Page No. 23 of 28
defendant no. 2 i.e. DDA to the plaintiffs that substitution was allowed in
favour of Sh. Deepak Chaudhary vide letter dated 25.07.2001. Further, the
plaintiffs were informed that the conveyance deed papers were issued to
Sh. Deepak Chaudhary vide letter dated 04.10.2002. The existence of
electricity bill as regards the suit property as well as mutation in favour of
defendant no. 1 by DDA is strong indicator of the possession of the suit
property by defendant no. 1. Further, as per affidavit Ex.DW1/P2 allegedly
executed by defendant no. 1 in favour of the plaintiffs, he has declared
himself to be the absolute owner of the property. He has stated that on the
death of his father and mother, he has been granted mutation by DDA in
his name. He has stated that there is no dispute regarding the suit property.
After execution of the registered GPA, agreement to sell, Will, etc.
the plaintiff applied for free hold conversion of the suit property. The
receipt dated 10.09.2012, in this regard is Ex.PW2/4. Also, as per Mark E,
the plaintiff on 06.09.2012 also paid the property tax of the suit property.
These facts go on to show the bonafide intention of the plaintiffs regarding
performance of the contract.
Now, the burden shifts upon the defendant to show as to why the
contract was not performed and proper sale documents were not executed.
This burden has not been discharged.
Subsequent transferee- Defendant no. 1 has stated in the written
statement that he had sold the suit property to one Saddam Malik S/o Sh.
Sher Khan Malik for a lawful consideration of Rs. 52 lakhs. The defendant
no. 1 had executed agreement to sell, dated 03.10.2013 and other necessary
documents before Sub-Registrar in favour of Sh. Saddam Malik. The
possession of the suit property was also handed over to Sh. Saddam Malik,
who is now in settled possession of the suit property.
Section 19 of the Specific Relief Act, 1963 provides:-
Except as otherwise provided by this Chapter, specific performance
CS No. 172/2016 Rajinder Sharma & Anr. Vs. Deepak Chaudhary & Ors. Page No. 24 of 28
of a contract may be enforced against-
(a) either party thereto;
(b) any other person claiming under him by a title arising
subsequently to the contract, except a transferee for value who has paid his
money in good faith and without notice of the original contract.
The defendant no. 1 has placed on record Ex.DW1/1 (?) i.e. GPA,
Deed of Will, affidavit, possession letter, payment receipt, agreement to
sell dated 03.10.2013 executed by Deepak Chaudhary in favour of Saddam
Malik. He has also stated in his written statement that he has sold the suit
property to one Saddam Malik S/o Sh. Sher Khan Malik for a lawful
consideration of Rs. 52 lakhs and executed agreement to sell, dated
03.10.2013 and other necessary documents before Sub-Registrar in favour
of Sh. Saddam Malik. The possession of the suit property was also handed
over to Sh. Saddam Malik, who is now in settled possession of the same.
Now, the question arises whether the right of the subsequent
purchaser shall be protected under section 19 (b) of the Specific Relief Act,
1963. As per this provision, the rights of bonafide purchasers without the
notice of original contract are protected. However, the subsequent
purchasers have to prove that they entered into the sale agreement in good
faith and without notice of the earlier agreements. Reliance is placed upon
Maharaj Singh & Ors. Vs. Karan Singh (dead) thr. LRs & Ors., Civil
Appeal No. 6782/2013.
The registered GPA, agreement to sell, Will, receipt, etc. were
executed by defendant no. 1 in favour of plaintiffs in May 2011 i.e. before
the judgment in Suraj Lamp‘s case. Hence, this transaction is protected for
the purpose of seeking the relief of a specific performance. As regards the
subsequent registered GPA, agreement to sell, Will, receipt, etc. executed
in favour of Saddam Malik in 2013, the legal position had changed
significantly. Though GPA, agreement to sell are not valid instruments of
CS No. 172/2016 Rajinder Sharma & Anr. Vs. Deepak Chaudhary & Ors. Page No. 25 of 28
transfer. However, prior to Suraj Lamp’s judgment, Delhi Courts and
authorities were recognizing such transactions and treating purchasers as
de facto owners. However, post Suraj Lamp’s judgment, the authorities
have stopped recognizing these GPA sales.
To determine whether the subsequent purchaser has paid money in
good faith and without notice of original contract, it would be pertinent to
mention that the documents between the defendant no. 1 and the plaintiffs
were registered. As per section 3 of the Transfer of Property Act
explanation 1, registration of a document operates as constructive notice to
subsequent purchasers. Once a document is registered, any person who
later deals with that property, is deemed to have notice of that registered
document even, if he had no actual knowledge.
Further, the present suit has been filed on 18.05.2012. The doctrine
of lis pendens, enshrined in section 52 of the Transfer of Property Act,
1982, prohibits parties from transferring or dealing with immovable
property involved in active litigation. It ensures that any transfer made
during the suit is subject to the final Court decree, protecting the outcome
of a case, from being undermined.
The present suit was filed on 18.05.2012 and the alleged transfer in
favour of Saddam Malik was in the year 2013. Hence, the doctrine of lis
pendens shall apply to the subsequent transfer. Further, free hold
conversion form was filed by the plaintiffs before DDA on 10.09.2012 and
as the documents in favour of plaintiffs are also registered therefore, the
subsequent purchaser cannot be said to have entered into agreement in
good faith and without notice of the agreement between the plaintiffs and
defendant no. 1. They shall be considered to have deemed notice of the
said transaction and the rights of the subsequent transferee shall be subject
to the outcome of the case. In view of the above discussion, issue no. 1 is
decided in favour of the plaintiffs and against the defendants. While, issue
CS No. 172/2016 Rajinder Sharma & Anr. Vs. Deepak Chaudhary & Ors. Page No. 26 of 28
no. 3 is decided against defendant no. 1 and in favour of the plaintiffs.
Issue no. 2
The onus to prove this issue was on the defendant. The plaintiffs
have sought the relief of restraining the defendants from creating any third
party interest. However, as discussed above and as stated in the written
statement of defendant no. 1, in the year 2013, the defendant no. 1 has
already executed registered agreement to sell, GPA and Will, etc. in favour
of one Saddam Malik. So, this relief claimed has already become
infructuous. However, in view of the operation of the doctrine of lis
pendens, the said transfer shall be subject to the outcome of this case. The
transferee steps into the shoes of the defendant no. 1 and is bound by the
decree ultimately passed.
11. Relief
In view of the above discussion, the suit of the plaintiffs is hereby
decreed with cost. The plaintiffs are entitled to a decree of specific
performance of contract in respect of suit property i.e. C-12/80, Yamuna
Vihar, Delhi-110053, along with its fittings and fixtures as per terms of the
agreement to sell dated 11.05.2011. Since, the entire sale consideration
amount has been paid by the plaintiffs therefore, the defendant no. 1 is
directed to execute and register a proper conveyance deed in favour of the
plaintiffs within three months from the date of the decree, as per the terms
and conditions of DDA, defendant no. 2. The plaintiffs to bear the
expenses for the same. In case, the defendant no. 1, fails to execute the
conveyance deed within the stipulated time, the plaintiff shall be entitled to
get the conveyance deed executed through the process of the court. It is
ordered accordingly.
12. Decree sheet be prepared.
CS No. 172/2016 Rajinder Sharma & Anr. Vs. Deepak Chaudhary & Ors. Page No. 27 of 28
13. File be consigned to the Record Room.
(Gomati Manocha)
District Judge-02 (North East District)
Karkardooma Courts, Delhi.
Dictated and announced in open court
today i.e. 16th February, 2026
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