Delhi District Court
Shashi vs Smt. Sudershan Sharma on 9 July, 2026
IN THE Court OF DISTRICT JUDGE-08 WEST, TIS HAZARI
COURTS, DELHI
Presided by: Ms. Susheel Bala Dagar
CS DJ 609675/16
CNR Number: DLWT01-001027-2014
In the matter of:
Smt. Shashi
W/o Sh. Harish Chander
R/o C-110, Karampura,
New Delhi-110015 ..... Plaintiff
Versus
Smt. Sudershan Sharma
W/o Sh. Sudershan Kumar Sharma
R/o C-123, Karampura
New Delhi-110015 ..... Defendant
Counter Claim 21/21
CNR Number: DLWT01-002926-2021
In the matter of:
Shri Sudershan Sharma
W/o Shri Sudershan Sharma
R/o 5/21C (III Floor)
Moti Nagar,
New Delhi-110015. ..... Counter Claimant
Versus
Smt. Shashi
W/o Shri Harish Chander
R/o C-110, Karampura,
New Delhi-110015. ..... Respondent
Date of institution in Civ DJ 609675/15 : 11.02.2014
Date of institution in Counter Claim 21/21 : 30.03.2021
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Date of reserved for judgment : 26.05.2026
Date of common judgment : 09.07.2026
I. Suit for specific performance, declaration, possession and permanent
injunction
and
II. Counter claim on behalf of counter claimant/ defendant Smt.
Sudershan Sharma for declaration / cancellation, permanent injunction
and also for recovery of damages / compensation for a sum of Rs.
7,00,000/- to the suit no. 6/14 together with costs and interest to be passed
against the respondent / plaintiff and in favour of counter claimant /
defendant.
COMMON JUDGMENT
I. Suit for specific performance, declaration, possession and permanent
injunction
Brief facts of the case
1. The plaintiff has instituted the present suit seeking specific
performance, declaration, possession, and permanent injunction in respect
of property bearing No. C-123, Karampura, New Delhi-110015. The
plaintiff claims to have lawfully purchased the suit property from the
defendant for a total sale consideration of Rs. 3,90,000/-, comprising Rs.
2,40,000/- paid in cash and adjustment of an earlier loan of Rs.
1,50,000/-, and asserted that she is entitled to ownership and possession
of the property.
2. The plaintiff submitted that the defendant had originally purchased
the suit property from Shri Onkar on 14.04.1986 for a consideration of
Rs. 35,000/-. It is alleged that the plaintiff and the defendant were
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neighbours and enjoyed cordial relations. According to the plaintiff, the
defendant was engaged in a chit fund business and had incurred
substantial liabilities towards various creditors, who were exerting
pressure upon her for repayment.
3. It is further pleaded that on 12.10.1995, the defendant approached
the plaintiff seeking financial assistance of Rs. 1,50,000/- to discharge her
outstanding liabilities. The plaintiff advanced the said amount as a loan,
whereupon the defendant executed a registered agreement and a
registered Will in favour of the plaintiff. Under the terms of the
agreement, the defendant undertook to repay the loan within three
months, failing which the plaintiff would be entitled to take possession of
the property and execute the necessary documents for its transfer.
4. The plaintiff further submitted that on 25.10.1995, the defendant
informed her that she was unable to repay both the loan and her other
creditors and therefore offered to sell the suit property. It is alleged that
the parties agreed that the plaintiff would pay an additional Rs.
2,40,000/-, while the earlier loan of Rs. 1,50,000/- would stand adjusted
towards the sale consideration, making the total consideration Rs.
3,90,000/-.
5. According to the plaintiff, on 26.10.1995, she paid the balance
amount of Rs. 2,40,000/- in cash, waived the outstanding loan, and
entered into a written Agreement to Sell with the defendant. The
defendant allegedly delivered vacant and peaceful possession of the suit
property to the plaintiff in part performance of the agreement. The
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agreement further provided that the defendant would execute all
necessary documents for transfer of ownership whenever required and
that the plaintiff would be entitled to seek specific performance in the
event of any breach.
6. The plaintiff further submitted that on the same date the defendant
executed several documents in her favour, including a General Power of
Attorney, Special Power of Attorney, Will, Rent Agreement, Indemnity
Bond, receipt acknowledging the sale consideration, and other supporting
documents, thereby completing the agreed transaction.
7. It is further alleged that after execution of the documents, the
defendant absconded from the locality after allegedly cheating several
other persons. According to the plaintiff, when certain individuals
assembled outside the suit property claiming rights over it, the local
police examined the documents in her favour and found them to be
genuine. The plaintiff also submitted that an FIR under Section 420 IPC
was subsequently registered against the defendant at Police Station Moti
Nagar on the complaint of another person alleging cheating.
8. The plaintiff alleged that despite having sold the property, the
defendant subsequently acted dishonestly by lodging a false complaint
against her on 09.11.1995 with the intention of dispossessing her. It is
further alleged that, acting in collusion with the defendant, the police
illegally sealed the suit property without any authority of law, thereby
dispossessing the plaintiff while her personal belongings remained inside
the premises.
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9. The plaintiff further submitted that the defendant issued a legal
notice dated 09.11.1995 falsely asserting ownership and possession over
the property and demanding return of the documents executed in favour
of the plaintiff. The plaintiff replied to the notice on 25.11.1995, denying
the allegations and asserting that the documents executed by the
defendant were valid, supported by consideration, and could not be
unilaterally cancelled.
10. It is pleaded that the plaintiff thereafter instituted a suit for
permanent injunction in 1995 seeking protection of her possession and
also filed a writ petition before the Hon’ble Delhi High Court challenging
the illegal sealing of the property by the police. The writ petition was
disposed of on 04.07.2000, with the High Court observing that the
question of lawful possession was to be decided by the Civil Court and
that the police had no authority to seal the property.
11. The plaintiff further alleged that between November 1995 and
January 1996, the defendant executed several deeds purporting to cancel
the previously executed Will, General Power of Attorney, and Special
Power of Attorney. According to the plaintiff, these cancellation deeds
were fraudulent, illegal, void, and ineffective in law since the original
documents had been executed for valuable consideration.
12. The plaintiff further submitted that her earlier civil suit was
dismissed by the Ld. Additional District Judge on 30.09.2004, pursuant to
which possession of the property was restored to the defendant.
Aggrieved by the dismissal, the plaintiff preferred Regular First Appeal
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(RFA) No. 596/2004 before the Hon’ble Delhi High Court. By judgment
dated 20.12.2013, the High Court observed that although the plaintiff
might possess substantive rights arising from the transaction, the earlier
suit was confined only to the relief of injunction and did not seek
declaration, possession or specific performance. Accordingly, liberty was
granted to the plaintiff to institute a comprehensive suit within three
months.
13. The plaintiff contended that the defendant acted fraudulently
throughout the transaction and, in collusion with the police authorities,
unlawfully dispossessed the plaintiff and thereafter attempted to defeat
her rights by executing cancellation deeds. The plaintiff also expressed
apprehension that the defendant may alienate the property in favour of
third parties, thereby causing irreparable loss and giving rise to
multiplicity of litigation.
14. The plaintiff further asserted that she has always been ready and
willing to perform her obligations under the Agreement to Sell and that
no further act remained to be performed on her part. It is alleged that the
defendant deliberately failed to execute the sale deed and instead
attempted to extract additional money from the plaintiff in breach of the
contractual obligations.
15. Accordingly, the plaintiff seeks a decree of specific performance
directing the defendant to execute and register the sale deed in respect of
the suit property and to restore vacant and peaceful possession thereof.
The plaintiff also seeks a declaration that she is the lawful owner of the
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property and that the cancellation deeds executed by the defendant are
null and void. Further, the plaintiff seeks a decree of permanent
injunction restraining the defendant from transferring, alienating,
encumbering, or creating any third-party interest in the suit property or
making any alterations therein, together with costs of the suit.
16. The plaintiff submitted that the cause of action initially arose on
26.10.1995 upon execution of the Agreement to Sell and delivery of
possession, continued on subsequent occasions when the defendant
allegedly lodged false complaints and executed cancellation deeds, and
further revived on 20.12.2013 when the Hon’ble Delhi High Court
granted liberty to institute the present comprehensive suit. On that basis,
the plaintiff contended that the present suit has been filed within the
period of limitation.
Written Statement of defendant.
17. The defendant contended that the suit is hopelessly barred by
limitation since the documents relied upon by the plaintiff were allegedly
executed in October 1995, whereas the present suit was instituted almost
nineteen years later. The defendant further submitted that although the
Hon’ble High Court of Delhi, while dismissing RFA No. 596/2004 and
RSA No. 232/2004 on 20.12.2013, granted liberty to the plaintiff to
institute appropriate proceedings within three months, the said liberty was
itself challenged before the Hon’ble Supreme Court in SLP (C) No.
19212-19213/2014. The defendant also contended that the suit is barred
by the principle of res judicata under Section 11 CPC, as an earlier suit
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for permanent injunction based on the same documents had already been
dismissed by the Ld. ADJ, Tis Hazari Courts, and the findings regarding
ownership were never set aside by any superior Court.
18. The defendant has further argued that the suit is not maintainable
as the plaintiff herself referred to an agreement providing for appointment
of an arbitrator, thereby attracting the provisions of the Arbitration and
Conciliation Act and ousting the jurisdiction of the civil Court. It is also
alleged that the suit has not been properly valued for the purposes of
Court fees and jurisdiction since the market value of the property
exceeded Rs. 25 lakhs at the relevant time. In addition, the defendant
contended that the plaint lacks a valid cause of action, has not been
properly verified, and further alleged that the plaintiff has been involved
in several incidents of illegal land grabbing in the Moti Nagar and
Karampura areas.
19. On merits, the defendant has categorically denied the plaintiff’s
ownership over property bearing No. C-123, Karampura, New Delhi.
Instead, the defendant claims to be the lawful owner, having purchased
the property in 1986 through an Agreement to Sell and other documents,
some of which were registered. The defendant submitted that she and her
family resided in the property for several years, carried out renovations,
paid instalments to the authorities, and conducted business from the
premises. It is further claimed that various official documents, including
ration cards, insurance policies, and voter identity cards, were issued in
the defendant’s name in respect of the property.
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20. The defendant further alleged that in December 1994 she had
borrowed a sum of Rs. 50,000/- from the plaintiff on interest, which was
progressively increased from 2% to 5% and ultimately to 10% per month.
The plaintiff is also alleged to have been operating committee/chit fund
schemes in which the defendant had participated. Owing to financial
difficulties and mounting interest, the defendant claims that she was
compelled, under pressure and coercion, to execute an agreement dated
12.10.1995 acknowledging repayment of Rs. 1.5 lakhs, failing which the
property would allegedly stand transferred to the plaintiff.
21. According to the defendant, the plaintiff, along with her husband,
mother, and other persons, forcibly entered the defendant’s house on the
night of 25.10.1995, assaulted and threatened the family, and compelled
them to execute documents relating to the transfer of the property. The
defendant alleged that she and her family were taken to the Court
premises under threats to their lives and were forced to execute a General
Power of Attorney and sign blank papers in favour of the plaintiff. It is
further claimed that no sale consideration was ever paid and that the
plaintiff unlawfully occupied the property along with the defendant’s
cloth shop, jewellery, and other goods valued at approximately Rs. 2.5
lakhs.
22. The defendant further submitted that she immediately lodged a
complaint with Police Station Moti Nagar, resulting in the registration of
FIR No. 586/95 under Sections 384/342/387/506/34 IPC against the
plaintiff and others. The property was allegedly sealed by the police due
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to apprehension of breach of peace, and possession was later restored to
the defendant pursuant to orders of the Hon’ble High Court. The
defendant also claimed that all disputed documents were cancelled in
November 1995 on the grounds that they had been obtained through
fraud, coercion, and without consideration. According to the defendant,
inquiries conducted at the office of the Sub-Registrar revealed
irregularities in the documents, including the absence of the Sub-
Registrar’s signatures, and legal notices regarding cancellation were duly
served upon the plaintiff.
23. The defendant has denied each and every allegation made by the
plaintiff regarding the alleged loan transaction, payment of sale
consideration, transfer of ownership, delivery of possession, and
execution of documents. It is alleged that the plaintiff has fabricated a
false case by introducing new allegations in the present suit that were
never pleaded in the earlier proceedings, thereby amounting to perjury.
The defendant maintained that no valid sale ever took place, no lawful
consideration was paid, and the plaintiff never acquired lawful possession
of the suit property.
24. The defendant has denied all allegations of cheating, absconding,
or attempting to dispossess the plaintiff and has instead accused the
plaintiff of fraud, criminal intimidation, extortion, and illegal occupation
of the property. The defendant maintained that the cancellation deeds
executed by her were lawful and justified, as the original documents had
been procured through force and coercion. On these grounds, the
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defendant asserted that the plaintiff has no legal right, title, or interest in
the suit property and is therefore not entitled to any relief of declaration,
possession, injunction, or specific performance. The defendant has
accordingly prayed for dismissal of the suit with punitive costs, sought
prosecution of the plaintiff for perjury, and requested that the written
statement and counterclaim be read together as constituting a common
defence.
Replication by the plaintiff to the WS of defendant.
25. The plaintiff, denied all the averments, objections, and allegations
made by the defendant, describing them as false, vague, baseless,
malicious, and devoid of merit. She relied heavily upon the judgment
dated 20.12.2013 passed by the Hon’ble Delhi High Court in RFA No.
596/2004 and RSA No. 232/2004, contending that the High Court had
expressly granted her liberty to file appropriate proceedings for
declaration and possession of the suit property. On this basis, the plaintiff
asserted that the present suit is maintainable, within the prescribed period
of limitation, and legally competent.
26. The plaintiff claimed that she became the exclusive owner of
property bearing No. C-123, Karampura, New Delhi, after purchasing it
from the defendant on 26.10.1995 for a total sale consideration of Rs.
3.90 lakhs, comprising Rs. 2.40 lakhs paid directly and Rs. 1.50 lakhs
adjusted towards a loan. She submitted that the defendant voluntarily
executed all necessary documents, including the General Power of
Attorney, Special Power of Attorney, Agreement to Sell, Will, Rent
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Agreement, Indemnity Bond, and Receipt before the Sub-Registrar,
Kashmiri Gate, and simultaneously handed over peaceful and vacant
possession of the property in part performance of the transaction.
27. The plaintiff further denied the defendant’s preliminary objections
that the suit was barred by limitation, hit by the principle of res judicata,
improperly valued, without any cause of action, or not properly verified.
According to the plaintiff, the present proceedings are a continuation of
the earlier litigation instituted pursuant to the liberty granted by the Delhi
High Court, and she also denied the existence of any arbitration
agreement between the parties.
28. The plaintiff alleged that the defendant had fabricated a false and
concocted story with the sole intention of unlawfully reclaiming the suit
property and was taking inconsistent and contradictory pleas to take
advantage of her own wrongs. She categorically denied all allegations
relating to fraud, coercion, criminal intimidation, unlawful confinement,
use of force or goons, forcible occupation of the property, theft of
household articles, and illegal execution of documents, asserting that
these allegations were entirely false and imaginary.
29. While admitting that the parties were neighbours and that a loan
transaction had taken place, the plaintiff maintained that the loan amount
was Rs. 1.50 lakhs and not Rs. 50,000/- as alleged by the defendant. She
asserted that the defendant had voluntarily executed the registered
documents on 12.10.1995 as security for the loan with an understanding
that, in the event of default in repayment within three months, the
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plaintiff would be entitled to take possession of and deal with the
property.
30. The plaintiff further denied that the documents dated 12.10.1995
and 26.10.1995 had been executed under threat, coercion, duress, or
undue influence. She maintained that the defendant had voluntarily
appeared before the Sub-Registrar, executed the documents after
receiving lawful consideration, and that all allegations of forcible
signatures, criminal intimidation, illegal occupation, and
misappropriation of goods and jewellery were completely false.
31. With regard to the criminal proceedings, the plaintiff asserted that
the FIR lodged by the defendant was false, fabricated, and filed after an
unexplained delay of about fourteen days with the intention of
dispossessing the plaintiff from the property. She emphasized that she and
her family members had ultimately been acquitted in the criminal case
and further alleged that the police had illegally sealed the property in
collusion with the defendant without any lawful authority.
32. The plaintiff also challenged the cancellation deeds executed by the
defendant in respect of the General Power of Attorney, Special Power of
Attorney, and Will, contending that the original documents had been
executed for valuable consideration, were irrevocable in nature, and
therefore could not have been unilaterally cancelled by the defendant.
33. The plaintiff denied the defendant’s allegations that she was a land
grabber or involved in fraudulent activities, describing such accusations
as defamatory. Instead, she alleged that the defendant herself had cheated
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several persons and referred to FIR No. 566/1995 under Section 420 IPC
registered at Police Station Moti Nagar on the complaint of one Amar
Nath.
34. The plaintiff reiterated that the defendant had not approached the
Court with clean hands and had filed a false and frivolous written
statement and counterclaim merely to harass and pressurize her. She
maintained that all documents supporting her ownership and possession
were already on record, whereas the defendant had failed to produce any
credible evidence in support of her allegations.
II. Counter claim on behalf of counter claimant/ defendant Smt.
Sudershan Sharma for declaration / cancellation, permanent injunction
and also for recovery of damages / compensation for a sum of Rs.
7,00,000/- to the suit no. 6/14 together with costs and interest to be passed
against the respondent / plaintiff and in favour of counter claimant /
defendant.
35. The Counter claimant reiterated the contents of the WS and alleged
that in December 1994 she borrowed a sum of Rs. 50,000/- from the
plaintiff/respondent at an agreed interest rate of 2% per month. She
contended that the respondent subsequently increased the rate of interest
to 5% and later to 10% per month, manipulated the accounts relating to a
savings committee/chit fund, falsely claimed that she owed Rs.
1,23,000/-, and further charged daily interest, thereby unlawfully inflating
her liability.
36. The counter-claimant further alleged that when she refused to pay
the exorbitant interest on 12.10.1995, the respondent compelled her,
under threats and coercion, to execute an agreement requiring repayment
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of Rs. 1,50,000/- within three months, failing which her property would
stand transferred to the respondent. She maintained that the agreement
was executed without her free consent and was therefore legally invalid.
37. She also alleged that on 25.10.1995 the respondent, accompanied
by her husband, mother, and hired persons, forcibly entered her house,
assaulted her and her family members, threatened her children with
knives, and demanded transfer of the property. According to the counter-
claimant, on the following day, i.e., 26.10.1995, she and her family
members were forcibly taken to the Court premises where, under threats
to their lives, she was compelled to execute a Power of Attorney and sign
several blank papers without receiving the promised consideration of Rs.
3,00,000/-. She further alleged that the respondent unlawfully occupied a
portion of the property and removed her cloth shop, jewellery, household
articles, and business merchandise.
38. The counter-claimant stated that she immediately lodged a police
complaint, resulting in the registration of FIR No. 586/1995 under
Sections 384/342/387/506/34 IPC against the respondent and her
associates. She further submitted that although the property was initially
sealed by the police, possession was ultimately restored to her pursuant to
the order dated 16.03.2005 passed by the Hon’ble Delhi High Court.
39. The counter-claimant also submitted that she executed cancellation
deeds and served a legal notice dated 09.11.1995 revoking the documents
allegedly obtained through fraud, coercion, undue influence, and criminal
intimidation. She further alleged that inquiries conducted with the office
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of the Sub-Registrar disclosed irregularities in the registration process,
leading her to submit complaints before the competent authorities.
40. According to the counter-claimant, all documents relied upon by
the respondent had been obtained without consideration and through
fraud, coercion, undue influence, and criminal intimidation, rendering
them void, illegal, and unenforceable. She further alleged that the
respondent and her associates had committed offences including cheating,
extortion, criminal intimidation, forgery, and misappropriation.
41. The counter-claimant referred to the earlier litigation between the
parties and asserted that the respondent’s suit for permanent injunction
claiming ownership and possession of the property had been dismissed by
the Ld. Additional District Judge on 30.09.2004 with findings against the
respondent on the issue of ownership. She further submitted that although
the respondent’s appeal before the Hon’ble Delhi High Court was
dismissed on 20.12.2013, the findings of the trial Court remained
undisturbed, while her own Special Leave Petitions before the Hon’ble
Supreme Court were still pending. She further alleged that the respondent
thereafter instituted another false suit based upon fabricated and forged
documents.
42. The counter-claimant claimed that, due to the respondent’s illegal
acts and false litigation, she had suffered severe mental agony,
harassment, financial loss, and prolonged litigation expenses, for which
she sought damages of Rs. 7,00,000/-. She also expressed apprehension
that the respondent might again attempt to dispossess her from the suit
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property, thereby necessitating protection by way of a permanent
injunction.
43. Accordingly, by way of the present counter-claim, the counter-
claimant sought a declaration that all documents allegedly executed on
12.10.1995, 26.10.1995, and other connected documents relied upon by
the respondent are null, void, forged, fabricated, cancelled, and of no
legal effect. She further sought impounding of the said documents,
recovery of damages amounting to Rs. 7,00,000/- together with interest at
the rate of 18% per annum, a decree of permanent injunction restraining
the respondent from interfering with her possession of the suit property,
and such other reliefs as the Court may deem fit and proper.
Written Statement of respondent/ plaintiff
44. The respondent/plaintiff filed a detailed reply reiterating the
contents of the plaint and opposing the counterclaim and contended that it
is false, frivolous, vexatious, mala fide, barred by law, and an abuse of the
process of the Court. The respondent contended that the counterclaim is
hopelessly barred by limitation because it seeks to challenge documents
executed in the year 1995 after more than two decades. She further
submitted that the claimant had never sought such relief in the earlier
litigation and that the counterclaim was liable to be rejected under Order
VII Rule 11 CPC The respondent also pleaded that the counterclaim
contains vague, scandalous, frivolous, and unsupported allegations liable
to be struck out under Order VI Rule 16 CPC. The claimant had
suppressed material facts, failed to approach the Court with clean hands,
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disclosed no valid cause of action, and was not entitled to equitable relief
under Section 41 of the Specific Relief Act.
45. According to the respondent, the claimant voluntarily executed the
documents dated 12.10.1995 as security for the loan and thereafter
completed the sale transaction on 26.10.1995 by executing the registered
sale documents after receiving the agreed consideration. The respondent
categorically denied all allegations of coercion, assault, threats,
kidnapping, wrongful confinement, criminal intimidation, use of
weapons, or involvement of hired persons on 25.10.1995 and 26.10.1995.
She asserted that these allegations were false, fabricated, and invented
only to avoid the legal consequences of the voluntary sale transaction.
The respondent also denied having forcibly taken possession of the
property or removed the claimant’s jewellery, household articles, cloth
shop, or merchandise, maintaining that possession had been lawfully
delivered by the claimant after execution of the sale documents.
46. With regard to FIR No. 586/1995, the respondent admitted that a
criminal case had been registered but pointed out that the complaint was
lodged about fourteen days after execution of the documents and was
merely an afterthought. She further stated that she and her family
members had ultimately been acquitted in the criminal proceedings,
thereby demonstrating that the allegations made by the claimant were
false.
47. The respondent also disputed the validity of the cancellation deeds
allegedly executed by the claimant in November 1995 and denied that
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any inquiry by the Sub-Registrar had disclosed irregularities in the
registration of the documents. She contended that the claimant had no
legal authority to unilaterally cancel duly executed and registered
documents supported by valuable consideration and that such cancellation
deeds were illegal, void, and incapable of affecting her accrued rights.
48. The respondent further denied all allegations of fraud, cheating,
forgery, coercion, criminal intimidation, extortion, misappropriation, and
undue influence, maintaining that every document had been voluntarily
executed by the claimant after receiving full consideration. She alleged
that the claimant was dishonestly attempting to reclaim property that had
already been lawfully sold and transferred.
49. The respondent admitted receipt of the legal notice dated
09.11.1995 issued by the claimant but contended that the notice was false
and misleading and had been duly replied to on 25.11.1995. According to
the respondent, her reply clearly stated that possession had already been
delivered and that the claimant no longer had any right, title, or interest in
the property. The respondent further alleged that the claimant had cheated
several other persons and referred to FIR No. 566/1995 registered under
Section 420 IPC against the claimant.
50. The respondent further submitted that dismissal of the proceedings
relating to de-sealing of the property had no bearing upon her substantive
ownership rights. She reiterated that the Delhi High Court, by its
judgment dated 20.12.2013, had recognized her entitlement to seek
declaration and possession of the suit property and had granted liberty to
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SUSHEEL BALA DAGAR
BALA Date:
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institute an appropriate suit, pursuant to which Suit No. 6/2014 was filed.
She also pointed out that the claimant’s Special Leave Petition against the
said judgment remained pending before the Hon’ble Supreme Court.
51. The respondent denied that the claimant had suffered any mental
agony, harassment, financial loss, or damages or that she was entitled to
recover Rs. 7,00,000/- with interest. She contended that the claimant had
no right, title, interest, locus standi, or valid cause of action in respect of
the suit property and that all allegations relating to apprehension of
dispossession, fraud, and illegal acts were false and baseless.
Replication by the counter-claimant to the WS of respondent.
52. The defendant/counter-claimant denied all the allegations made by
the plaintiff/respondent and reiterating that the counterclaim is bona fide,
maintainable, and based on true and correct facts. She asserted that the
plaintiff has no valid right, title, or interest in the suit property and
maintained that the documents allegedly executed on 26.10.1995 are
forged, fabricated, invalid, and liable to be cancelled. The defendant
further contended that no sale consideration was ever paid by the plaintiff
and that possession of the suit property was never delivered. She also
relied upon the judgment dated 30.09.2004 dismissing the plaintiff’s
earlier suit and alleged that the plaintiff had taken inconsistent and
contradictory stands in the subsequent proceedings.
53. The defendant denied the plaintiff’s preliminary objections and
submitted that the counterclaim had been validly filed along with the
written statement under Order VIII Rule 6-A of the Code of Civil
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BALA Date:
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Procedure. She contended that the counterclaim is neither barred by
limitation nor liable to rejection under Order VII Rule 11 CPC, Order VI
Rule 16 CPC, or Section 41 of the Specific Relief Act. According to the
defendant, the plaintiff had merely repeated the allegations already made
in the plaint and written statement with the intention of creating
confusion and obtaining inadvertent admissions.
54. She asserted that the plaintiff had failed to produce the original sale
documents allegedly executed on 26.10.1995 and contended that the
plaintiff’s suit was liable to be dismissed on that ground alone. The
defendant further denied voluntarily executing any documents in favour
of the plaintiff and maintained that the circumstances surrounding the
alleged transaction had already been fully explained in her written
statement and counterclaim.
55. The defendant justified the execution of the cancellation deeds and
contended that they were legally valid because no sale consideration had
ever been received and no lawful transfer of ownership had taken place.
She further maintained that the documents relied upon by the plaintiff
were neither irrevocable nor legally enforceable and did not confer any
right, title, or interest in the suit property.
56. The defendant placed particular emphasis on the issues of
limitation and res judicata. She contended that the plaintiff could not
derive any benefit from the liberty granted by the Hon’ble Delhi High
Court to institute fresh proceedings because the plaintiff’s claim had
already become barred by limitation. She further submitted that there is
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SUSHEEL BALA DAGAR
BALA Date:
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no provision under the Limitation Act permitting condonation of delay in
the circumstances of the present case. The defendant also argued that the
judgment and decree dated 30.09.2004 dismissing the plaintiff’s earlier
suit remain binding and have never been set aside, and therefore the
present suit is barred by the principles of res judicata under Section 11
CPC.
57. The defendant also submitted that the counterclaim has been
properly valued for the purposes of Court fees and jurisdiction and
pointed out that the plaintiff had failed to identify any defect in its
valuation or payment of court fees. She denied that the counterclaim is
liable to dismissal on any of the grounds urged by the plaintiff and
maintained that all pleadings have been made in accordance with law.
Issues :-
58. From the pleadings of the parties and material on record, following
issues were framed by Ld. Predecessor vide order dated 09.11.2016:-
Issue no. 1 Whether the suit filed by plaintiff is barred by limitation?
OPD
Issue no. 2 Whether the plaintiff is entitled for relief of specific
performance as claimed? OPP
Issue no. 3 Whether the plaintiff is entitled for relief of declaration as
claimed? OPP
Issue no. 4 Whether the plaintiff is entitled for relief of possession as
prayed? OPP
Issue no. 5 Whether the plaintiff is entitled for relief of permanentCiv DJ 609675/16 Shashi v. Sudarshan Sharma Page no. 22 of 87
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injunction as prayed? OPP
Issue no. 6 Whether the counter claim of defendant is barred by
limitation? OPP
Issue no. 7 Whether the defendant is entitled for relief as claimed in
counter claim? OPD
Issue no. 8 Relief.
Further additional issues were framed by Ld. Predecessor vide
order dated 17.04.2017:-
Issue no. 1 Whether the suit of the plaintiff is liable to be dismissed under
section 11 of CPC? OPD
Issue no. 2 Whether the Court has no jurisdiction in view of the
Arbitration Agreement allegedly executed between the parties? OPD
Issue no. 3 Whether the present suit is undervalued? OPD
Court Proceedings
59. Both parties had submitted on 09.07.2025 that issues and the
evidence led in the main suit be read in the counter claim as well.
Common Evidence
Plaintiff Evidence:-
PW1/Shashi
60. PW1/Shashi has tendered her evidence by way of affidavit Ex.
PW1/A and relied upon the following documents: copy of General Power
of attorney dated 12.10.1995 executed by Smt. Sudershan Rani in favour
of Smt. Shashi Ex. PW1/1, copy of Will dated 12.10.1995 by Smt.
Sudarshan Rani Sharma Ex. PW1/2, copy of agreement to sell dated
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SUSHEEL BALA DAGAR
BALA Date:
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26.10.1995 executed by Smt. Sudarshan Rani Sharma in favour of Smt.
Shashi Ex. PW1/3, copy of Indemnity Bond dated 26.10.1995 Ex.
PW1/4, copy of General Power of Attorney registered on 26.10.1995 Ex.
PW1/5, copy of Special Power of Attorney registered on 26.10.1995 Ex.
PW1/6, copy of will dated 21.10.1995 Ex. PW1/7, copy of receipt of Rs.
2,40,000/- dated 26.10.1995 Ex. PW1/8, copy of affidavit dated
26.10.1995 Ex. PW1/9, copy of Agreement to sell executed by Sh. Onkar
Ex. PW1/11, copy of the legal notice dated 9.11.1995 Ex. PW1/12, copy
of reply dated 25.11.1995 to the legal notice dated 9.11.1995 Ex. PW
1/13, certified copy of order dated 20.12.2013 in RFA no. 596/2004 and
RSA no. 232/2004 passed by Hon’ble High Court of Delhi Ex. PW1/14.
61. During cross examination, PW1/Shashi stated that the defendant
was her neighbour and had been known to her since approximately 1992-
93. She described herself as a housewife throughout her life and denied
ever being involved in any occupation or business activity. According to
her, the defendant was running a lucky draw/committee business and a
beauty parlour from her house since around 1993-94. She stated that she
had no knowledge of any other business run by the defendant.
62. PW1 deposed that her husband had earlier worked at Silvania
Laxman Company and later started a jewellery shop in Rohini about 8-10
years prior to her testimony. She denied that either she or her husband had
ever operated any lucky draw or committee business. She further stated
that she had never lent money on interest to anyone except the defendant.
She confirmed filing income tax returns from 1995 to 2013 and
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maintaining a joint bank account with her husband at Bank of Baroda,
Karampura. She also stated that she owned the house in which she
resided and other properties in Delhi/NCR, though she could not recall
exact dates of purchase or sale. She confirmed that no other property
owned by her was under litigation except the suit property.
63. PW1 admitted that she had earlier filed a suit concerning the same
property in order to recover possession from the defendant. She stated
that at the time of filing the earlier suit, the property had already been
sealed by the SHO of PS Moti Nagar. She asserted that the present suit
was also filed to obtain possession because she had allegedly paid the
entire sale consideration for the property. She claimed that all documents
in her favour were registered and that she had paid a total consideration
of Rs. 3,90,000/-. According to her, Rs. 1,50,000/- had been given as a
loan to the defendant on 12.10.1995, while Rs. 2,40,000/- had been paid
against receipt Ex. PW1/8. She admitted that these details were not
specifically mentioned in the documents exhibited before the Court but
claimed they were mentioned in the plaint and previous suit.
64. PW1 stated that she learned on 26.10.1995 that the defendant had
borrowed money from several persons. She named Amarnath, late Jai
Bhagwan, and Ashok Kumar Munna as persons who had allegedly
advanced money to the defendant. She stated that Amarnath had lodged
an FIR against the defendant on 26.10.1995 alleging that the defendant
had absconded after taking money from him, and she admitted
accompanying him to PS Moti Nagar for registration of the complaint.
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However, she expressed ignorance regarding the amount involved, the
FIR number, the filing of any charge-sheet, or the eventual outcome of
the FIR.
65. PW1 further deposed that Jai Bhagwan and Ashok Kumar Munna
had also come to the suit property on 26.10.1995 seeking recovery of
money from the defendant. She identified Jai Bhagwan as a jeweller
residing in Karampura and stated that Ashok Kumar Munna was a
politician. She denied suggestions that these persons had been falsely
introduced by her to support a fabricated story regarding the sale of the
suit property or that false complaints and FIRs had been engineered
against the defendant.
66. Regarding the disputed transaction documents, PW1 stated that the
documents dated 12.10.1995 and 26.10.1995 were prepared at Janakpuri
District Centre and Kashmere Gate respectively, in the presence of
herself, her husband, and the defendant. She stated that one witness was
brought by her and another by the defendant, namely Sanjay Malik.
According to her, all documents were executed on stamp papers and
registered before the Sub-Registrar. She maintained that the documents
dated 12.10.1995 related to a loan of Rs. 1,50,000/- given without
interest, repayable within three months. She denied allegations that the
documents were forcibly obtained or fabricated by her.
67. PW1 admitted that a Local Commissioner had been appointed by
the Delhi High Court in proceedings arising from earlier litigation
concerning the property. She stated that she was present during the Local
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Commissioner’s inspection of the property around the year 2005. She
admitted her signatures on the inventory of articles prepared by the Local
Commissioner, exhibited as Ex. PW1/D-1, and on the Commissioner’s
report, Ex. PW1/D-2. She initially claimed that she had stored articles
such as kitchen items, clothes, beddings, and blankets in the property but
admitted that she had not specifically claimed any article before the Local
Commissioner or any Court. Later, she stated that all articles listed in the
inventory belonged to her, either because she had brought them herself or
purchased them from the defendant. She claimed that the defendant had
acknowledged the sale of those articles to her on 26.10.1995, although
she had not produced the alleged acknowledgment.
68. When shown photographs allegedly taken during the Local
Commissioner’s inspection, PW1 stated that she could not confirm
whether they were taken during the visit or even whether they related to
the suit property. She also stated that she could not identify the persons
appearing in the photographs. She denied suggestions that she was
deliberately feigning ignorance regarding the inventory and photographs.
69. PW1 further stated that she had been residing at property No.
C-110, Karampura at the time of institution of the suit and continued to
reside there. She admitted mentioning another property, C-123, in an
affidavit because she owned it, although she was not in possession of that
property at the relevant time. She repeatedly denied suggestions that the
defendant had never borrowed money from multiple persons or that the
story of indebtedness had been fabricated.
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BALA Date:
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70. PW1 denied the defence case that the defendant had borrowed only
Rs. 50,000/- from her on interest and that the disputed documents had
been executed under coercion and threat. She also denied allegations that
she and her alleged associates had orchestrated false criminal complaints
to prevent the defendant from taking legal action. She admitted
knowledge of a criminal revision petition filed by the defendant
challenging her acquittal in a criminal case, which was still pending.
71. PW1 acknowledged that the defendant had made a police
complaint against her on 09.11.1995 and that she had been called to PS
Moti Nagar. Although she claimed in her affidavit that the police had
verified her documents and found them genuine, she admitted during
cross-examination that she possessed no verification report or
acknowledgment from the police. She also admitted that the police had
sealed the property and that her suit for de-sealing the property had been
dismissed.
72. PW2/Devender Kumar, Junior Assistant, Sub-Registrar II, Basai
Darapur, West, Delhi brought the records i.e. GPA dated 12.10.1995
executed by Smt Sudershan Rani Sharma in favour of Shashi bearing
registration No. 21764, Book No. 4 Volumn No.3536 on page No. 136 to
138. He also brought the record of Will dated 12.10.1995 executed by
Sudershan Rani Sharma in favour of Shashi bearing registration No.
52801 in Book No. 3, Volume No. 2680 on page no. 29. He brought the
certified true copy of the GPA dated 12.10.1995 Ex. PW2/1 and certified
true copy of Will dated 12.10.1995 Ex. PW2/2.
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BALA Date:
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73. During cross examination, PW2/Devender Kumar stated that he did
not know whether the documents brought by her were photocopies. He
admitted that he had no personal knowledge of the present matter or of
the records produced before the Court. He further deposed that she had
been posted at the office of Sub-Registrar-II, Basai Darapur, New Delhi
since September 2021.
74. PW2 stated that it was a matter of official record as to which Sub-
Registrar had entertained the documents in question, and therefore he was
unable to comment on that aspect. He also stated that she had brought her
Office Identity Card to establish his employment in the Office of the
District Magistrate (West), Delhi. According to him, he was working as a
Junior Assistant/Record Clerk in the office of Sub-Registrar-II. PW2
denied the suggestion that the documents produced by him had not been
proved in accordance with law. He also denied the suggestion that he was
deposing falsely before the Court.
75. PW3/Vinod Kumar, Section Officer, Sub-Registrar-1, Kashmere
Gate, Old Court Complex, Kashmere Gate, Delhi stated that he was
authorized by Sub-Registrar-1, Kashmere Gate, Delhi vide authorization
letter dated 26.07.2022 to appear before the Court and to produce the
summoned records and the said authorization letter dated 26.07.2022 Ex.
PW3/1.
76. He stated that the record which was required to be produced as per
the application received along with the summons i.e. GPA dated
26.10.1995 registered as document No. 31533, volume No. 3676,
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SUSHEEL BALA DAGAR
BALA Date:
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Additional Book No. 4 at Page No. 69-70 and the other documents which
is SPA dated 26.10.1995 registered as document No. 31534, volume No.
3676 additional book no. 7, page no. 71 did not match the record which
they have maintained.
77. He brought the record of third document which is a Will dated
21.10.1995 (written as 21.10.1895) which is registered vide registration
no. 44955, volume no. 2489 page no. 194 dated 26.10.1995. Photocopy
of Will dated 21.10.1995 is Ex.PW3/2.
78. During cross examination, PW3/Vinod Kumar stated that he did
not know whether the document produced by her was a photocopy. He
admitted that he had no personal knowledge regarding the case or the
records brought before the Court. He further deposed that she had been
posted at the office of Sub-Registrar-I, Kashmere Gate, Delhi since
13.01.2020.
79. PW3 stated that it was a matter of official record as to which Sub-
Registrar had entertained the document in question, and therefore he
could not comment on that aspect. He also stated that he had brought his
Office Identity Card to establish her employment in the Office of the
District Magistrate (Central), Delhi. According to him, he was serving as
a Section Officer in the office of Sub-Registrar-I, Central Delhi. PW2
denied the suggestion that the document produced by him had not been
proved in accordance with law. He further denied the suggestion that he
was deposing falsely before the Court.
After cross examination, the plaintiff evidence was closed.
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SUSHEEL SUSHEEL
BALA DAGAR
BALA Date:
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Defendant Evidence:-
DW1/Sudershan Sharma
80. DW1/Sudershan Sharma has tendered her evidence by way of
affidavit Ex.DW1/A and relied upon the following documents: photocopy
of Deed of Cancellation of Will dated 09.11.1995 Mark-A, photocopy of
Deed of cancellation of GPA dated 28.11.1995 Mark-B, deed of
Cancellation of Agreement to Sell dated 28.11.1995 Ex.DW1/3, deed
dated 28.11.1995 of Cancellation of Agreement to appoint Arbitrator
Ex.DW1/4, deed dated 28.11.1995 of Cancellation of SPA Ex.DW1/5,
deed dated 28.11.1995 of Cancellation of Rent Agreement Ex.DW1/6,
deed dated 10.01.1996 of Cancellation of Indemnity Bond Ex.DW1/7,
certified copy of judgment/decree dated 30.09.2004 Ex.DW1/8, certified
copy of RFA no. 596/2004 Ex. DW1/9, certified copies of orders dated
04.10.2016 and 03.01.2017 passed in SLP (C) No. 19212-19213/14
Ex.DW1/10, also rely on photocopy of other orders passed in SLP (C)
No.19212-19213/14 dated 18.07.2014 and 11.11.2014 Mark-C.
81. During cross examination, DW1 Sudershan Sharma stated that her
affidavit Ex. DW1/A bears her signatures at points A and B. She deposed
that the plaintiff, Smt. Shashi Arora, was her neighbour and that she had
known the plaintiff for about three to four years prior to the dispute. She
denied the suggestion that she and the plaintiff were involved in the same
business. She further alleged that the plaintiff’s husband had illegally
grabbed property bearing no. G-110, Karampura, as well as her own
property bearing no. C-123, and another property whose address she
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BALA Date:
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could not recall. However, she admitted that she had not placed on record
any ownership documents, police complaint, or Court documents
regarding those alleged incidents. She denied the suggestion that the
plaintiff or her husband had never grabbed any property.
82. DW1 admitted that she had purchased the suit property from Sh.
Omkar Singh and that she used the property for both residential and
commercial purposes. She stated that she was running a cloth shop and a
beauty parlour from the suit property, which consisted of two shops. She
admitted that she had not obtained any registration from the Municipal
Corporation for operating those businesses and had not filed any bills or
vouchers relating to them. She denied the suggestion that the articles and
materials relating to the cloth shop and beauty parlour were planted
during the visit of the Local Commissioner.
83. DW1 denied borrowing Rs.1,50,000/- from the plaintiff in
December 1994 and stated instead that she had taken only Rs.50,000/- as
a loan on 10.12.1994. She admitted that no written loan agreement was
executed at that time. However, she admitted that on 12.10.1995 she
entered into an agreement with the plaintiff providing that if she failed to
repay the loan amount, she would sell the suit property to the plaintiff.
She alleged that the plaintiff used to charge her exorbitant interest at the
rate of Rs.1,230/- per day. She further stated that the plaintiff had
increased the amount from Rs.50,000/- to Rs.1,50,000/- by calculating
compound interest on the principal amount.
84. DW1 admitted that she was running a chit fund or committee
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business, though according to her it was connected with her cloth
business. She explained that customers used to deposit fixed monthly
amounts with her for purchasing clothes and that she also sold clothes on
credit with installment payments. She denied the suggestion that no such
committee business existed and further alleged that she herself was a
member of a committee run by the plaintiff, although she admitted that no
documentary record existed regarding such committee.
85. DW1 deposed that on 25.10.1995 the plaintiff, her husband Harish
Chander, her mother Santosh Kumar, and two unknown persons came to
her house with the intention of grabbing her property. According to DW1,
those persons assaulted her family and threatened her children with a
knife. She stated that the incident occurred around 10:30 PM and that
despite the cries of her children, no neighbours came to assist them. She
admitted that she did not lodge any complaint either on that day or on the
following day regarding the incident.
86. When shown the photocopy of the agreement dated 12.10.1995
marked as Mark DW1/P1, DW1 admitted that she had signed the
agreement after understanding its contents. However, she stated that
although the actual loan amount was Rs.50,000/-, the agreement
mentioned Rs.1,50,000/- because the plaintiff had added compound
interest. She further admitted that she did not inform the Sub-Registrar at
Kashmere Gate that she had been brought there forcibly, allegedly
because her children were in the custody of the plaintiff and her
associates.
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87. DW1 stated that although she did not lodge an FIR immediately
after the alleged incident, she later filed an FIR on 09.11.1995. She
denied the suggestion that no such incident had taken place or that she
had fabricated the allegations. She admitted that the plaintiff had been
acquitted in the criminal case arising from the FIR but stated that
proceedings were still pending before the Hon’ble High Court of Delhi.
She further admitted that she did not remember the name of the Court that
acquitted the plaintiff and her husband.
88. DW1 identified the certified copy of the judgment dated
29.10.2015 passed in FIR No. 586/1995, PS Moti Nagar, under Sections
342/387/506/34 IPC Ex. DW1/P1. She also identified the certified copy
of the appellate judgment dated 28.02.2017 in Criminal Appeal No.
54422/2016 Ex. DW1/P2, though she stated that she did not clearly
remember it because of the passage of time. She volunteered that a
revision petition filed by her before the Hon’ble Delhi High Court was
still pending.
89. DW1 stated that she was aware of the contents of her affidavit Ex.
DW1/A. She alleged that in the plaintiff’s earlier suit, the plaintiff had
claimed that she had taken Rs.2,40,000/- from her, whereas in the present
case the plaintiff alleged payment of Rs.3,90,000/-, thereby pointing out
contradictions in the plaintiff’s version. She denied the suggestion that no
such contradiction existed.
90. DW1 reiterated that the plaintiff used to charge her Rs.1,230/- per
day as interest but admitted that no written account or record of such
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SUSHEEL BALA DAGAR
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payments was maintained. She stated that she had made such payments
continuously for about three months. She denied the suggestion that the
plaintiff had advanced an interest-free loan of Rs.1,50,000/- to her. She
also denied selling the goods and articles lying in the suit property to the
plaintiff.
91. When shown a handwritten list of articles marked as Ex. DW1/P3,
DW1 denied having written or signed the document. She further denied
the suggestion that her allegations regarding kidnapping of her children
and coercion for execution of documents were fabricated. She denied the
suggestion that she was deposing falsely.
DW2/Sachin Sharma
92. DW2/Sachin Sharma tendered his evidence by way of affidavit
Ex.DW2/A.
During cross examination, DW2/Sachin Sharma stated that he has
one brother and one sister and that he is the eldest among the three
siblings. He deposed that in the year 1995 he was studying in the 8th
standard at Sidhant College in New Moti Nagar, Delhi. Upon being
questioned about studying in a “college” while being in the 8th standard,
he clarified that it was actually a private institution that was called a
college.
93. DW2 stated that the disputed property is property no. C-123,
Karampura, Delhi. He admitted that his mother used to run a committee
or kitty business from the said property and that she had been operating it
for three to four years before they left the property. He further stated that
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his mother also carried on the business of ready-made garments and
cosmetics from the same premises. He deposed that he was about 15-16
years old at the time when they left the property.
94. DW2 stated that he was aware of the incident that allegedly
occurred on 25.10.1995. According to him, on that day the plaintiff, her
husband, her mother, and two unidentified “gunda elements” came to
their house. He stated that he did not know the names of those two
persons. He further deposed that they entered the house through the back
gate while he and his family were sitting in a middle room watching
television and having dinner.
95. DW2 stated that he was around 15-16 years old when the incident
described in paragraph 7 of his affidavit took place. According to him, the
incident occurred between 10:00 PM and 10:30 PM. He stated that five
persons, namely Harish Chander, Shashi, Shashi’s mother, and two
alleged “gunda elements,” threatened and assaulted his parents on
25.10.1995. He further deposed that his mother had lodged a police
complaint regarding the incident and that a Court case relating to the
same was tried at Tis Hazari Courts. He stated that his mother succeeded
in the said case. However, he admitted that he did not know whether the
plaintiff and her husband had been acquitted in FIR No. 586/1995, PS
Moti Nagar, or whether the appeal filed by his mother against the
acquittal had also been dismissed.
96. DW2 denied the suggestion that his mother had voluntarily sold the
suit property to the plaintiff or handed over vacant possession of the
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same. He also denied the suggestion that the articles related to the beauty
parlour business lying in the property had been sold to the plaintiff or that
any list of such articles, Ex. DW-1/P3, had been prepared. He further
stated that he did not know the meanings of the expressions “captivity”
and “null and void.”
97. When it was suggested to him that he had no personal knowledge
of the incident dated 25.10.1995 as stated in his affidavit, DW1replied
that whatever his family had faced on that date had been explained by
him in his affidavit.
98. DW2 further stated that after the incident dated 25.10.1995, his
family never resided again at property no. C-123, Karampura, New Delhi.
Finally, he denied the suggestion that he had appeared before the Court
only at the instance of his parents or that he was deposing falsely.
DW3/Simmy Malhotra
99. DW3/Simmy Malhotra tendered her evidence by way of affidavit.
During cross examination, DW3, Simmy Malhotra, stated that she
had studied up to the fifth standard and was about five years old when she
was in first standard. She stated that she did not remember the year of her
admission to school and had studied in only one school up to the fifth
standard, while her brothers studied in different schools. She further
stated that by the year 1996 she had discontinued her studies. According
to her, her father worked in a newspaper printing press known as “Daily
Pratap” between the years 1994 to 1996, although she had no knowledge
regarding his earnings during that period.
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100. DW3 stated that her mother had been running a “committee
business” prior to 1993 and continued the same thereafter. She admitted
that other people were members of the said committee and explained that
the customers who purchased garments from her mother were members
of that committee business. She further stated that her mother had
suffered losses in that business.
101. DW3 deposed that she knew the plaintiff since childhood because
the plaintiff was their neighbour and used to visit their home. She
admitted that her mother had once taken a loan from the plaintiff, though
she did not know the amount or the purpose of the loan. She denied the
suggestion that her mother had borrowed money from several other
persons or that creditors frequently visited their home for recovery of
debts. She further stated that her mother used to purchase goods for her
business in cash and never on credit.
102. DW3 denied the suggestion that her mother had sold property
bearing no. C-123, Karampura, Delhi, to the plaintiff and received sale
consideration from her. She also denied the suggestion that no incident
had occurred on 25.10.1995, as described in paragraph 5 of her affidavit,
or that no FIR had been lodged by her mother in relation to that incident.
103. When questioned regarding her age and recollection of the
incident, DW3 stated that she was around 10 years old in the year 1995.
She deposed that she remembered some parts of the incident herself,
while certain facts had later been explained to her by her mother. She
denied the suggestion that the incident had been falsely narrated to her by
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her family members or that she had been tutored by her mother for the
purpose of giving evidence.
104. DW3 stated that there was a distance of about five to ten houses
between property no. C-110 and C-123. She further stated that she knew
the residents of house no. C-124 and C-125 and that they were on visiting
terms with her family. She denied the suggestion that the plaintiff, her
husband, her mother, and two alleged “gunda elements” had never visited
their home on 25.10.1995.
104. DW3 denied that her mother had filed a false criminal case titled
“State vs. Harish Chand and Shashi,” and stated that the criminal case had
been decided in favour of her mother. She admitted that she had not
visited the police station or any doctor on 26.10.1995 and further
admitted that no neighbours from houses C-122, C-124, or C-125 had
visited their house on that date. DW3 denied the suggestion that no
incident had taken place on 25.10.1995 and 26.10.1995 or that no FIR
had been lodged by her mother. She also denied the suggestion that the
incident had merely been narrated to her by family members because she
was a child at the relevant time.
105. DW3 further denied the suggestion that the property bearing no.
C-123, Karampura, Delhi, along with the goods and articles lying therein,
had been sold by her mother to the plaintiff. She stated that she did not
know whether the plaintiff or her family members had resided in the said
property on 25.10.1995 and 26.10.1995. She also stated that she did not
know whether her mother had taken a total sum of Rs.3,90,000/- from the
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plaintiff, whether any agreement dated 12.10.1995 existed between her
mother and the plaintiff for Rs.1,50,000/-, or whether the plaintiff had
paid Rs.2,40,000/- to her mother on 26.10.1995. She denied the
suggestion that her mother had deliberately concealed such facts from
her.
106. DW3 further denied the suggestion that due to her father’s low
income, her mother had borrowed money from the plaintiff to meet
household expenses. She alleged that during the night of 25-26.10.1995,
the alleged “gunda elements” continuously beat them and threatened
them not to cry or raise any alarm. According to her, even the neighbours
residing at properties C-121 and C-125 did not come to their rescue. She
further stated that she and her family were kidnapped and later released at
a place which her parents subsequently told her was Tis Hazari. She
admitted that she was a child at that time.
107. When specifically questioned whether she independently
remembered the incident dated 25.10.1995 or whether it had been
narrated to her by her parents, DW3 stated that she did remember the
incident herself. However, when asked whether she personally
remembered the place where they were allegedly released, she stated that
she did not remember the place on her own knowledge and had only been
told by her parents that it was Tis Hazari Court. DW3 denied the
suggestion that she was unaware of the incident, that she had been tutored
by her mother, or that she was falsely deposing merely to support her
mother’s case.
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After cross examination, the defendant evidence was closed.
Final arguments (common for both the cases)
108. I have heard Ms. K.B. Hina Ld. Counsel for plaintiff and Shri
Vineet Gandhi Ld. Counsel for defendant and perused the record. Both
Ld. Counsels have filed written synopsis of their arguments.
Arguments by Ld. Counsel for plaintiff.
109. The plaintiff submitted final arguments after completion of
pleadings and evidence, asserting that she lawfully purchased property
no. C-123, Karampura, New Delhi from the defendant for a total
consideration of Rs. 3.90 lakhs, consisting of Rs. 1.50 lakhs advanced as
loan and Rs. 2.40 lakhs paid in cash on 26.10.1995. The plaintiff stated
that the defendant, who was allegedly under financial distress due to chit
fund liabilities and debts owed to several creditors, first borrowed Rs.
1.50 lakhs and executed a registered Agreement, GPA, and Will dated
12.10.1995. According to the plaintiff, when the defendant failed to repay
the loan, she voluntarily agreed to sell the suit property and executed
various sale-related documents, including GPA, SPA, Agreement to Sell,
Receipt, Will, Affidavit, and Indemnity Bond on 26.10.1995, while also
handing over possession of the property.
110. The plaintiff further argued that after executing the documents and
vacating the property, the defendant lodged a false FIR on 09.11.1995
alleging coercion, kidnapping, and threats, with the intention of regaining
possession of the property. The plaintiff contended that the police
illegally sealed the property despite having no authority to do so. The
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plaintiff thereafter initiated civil proceedings and writ proceedings
challenging the sealing action. The earlier suit for injunction was
dismissed only on technical grounds relating to maintainability, and the
Hon’ble Delhi High Court, while disposing of RFA No. 596/2004 on
20.12.2013, granted liberty to file a properly constituted suit seeking
declaration, possession, and specific performance, pursuant to which the
present suit was filed.
111. The plaintiff argued that the defendant admitted the execution and
registration of all relevant documents and also admitted that she had
vacated the property on 26.10.1995. The plaintiff emphasized that the
defendant’s only defence was that the documents were executed under
coercion and threat at knife point, but such allegations remained
unsupported by any independent evidence. It was argued that the
defendant failed to produce medical records, neighbour testimony, or
contemporaneous complaints proving coercion, despite claiming that the
incident occurred in a densely populated locality. The plaintiff also
highlighted that the FIR was lodged after a delay of about 14 days and
that both the trial Court and appellate Court acquitted the plaintiff and her
husband in the criminal case arising out of FIR No. 586/1995.
112. The plaintiff relied upon the testimony of officials from the Sub-
Registrar offices, who proved the registration and genuineness of the
documents executed on 12.10.1995 and 26.10.1995. It was further argued
that registered documents carry a presumption of validity under law and
that the defendant admitted signing the documents after understanding
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their contents. The plaintiff also pointed out that the defendant admitted
borrowing money from the plaintiff and admitted that at least Rs.
1,23,000/- was due at the time of execution of the registered documents,
although she disputed the exact loan amount.
113. The plaintiff contended that the defendant’s cancellation deeds
were unilateral, void, and legally ineffective because they were executed
without the plaintiff’s consent and without any decree from a competent
Court. Reliance was placed upon various judgments, including those of
the Hon’ble Supreme Court and Madras High Court, to argue that
unilateral cancellation of registered conveyance documents is void and
non-est in law.
114. On the issue of limitation and res judicata, the plaintiff submitted
that the present suit was filed pursuant to liberty expressly granted by the
Hon’ble Delhi High Court and that the earlier injunction suit had not
adjudicated issues relating to title, declaration, possession, or specific
performance on merits. Therefore, the suit was neither barred by
limitation nor by res judicata. The plaintiff also argued that the existence
of an arbitration clause did not oust the jurisdiction of the civil Court
since the present suit involved comprehensive reliefs concerning title,
declaration, possession, and injunction.
115. The plaintiff asserted that her conduct throughout demonstrated
continuous readiness and willingness to perform the contract, as she
consistently pursued legal remedies, defended her possession, replied to
notices, and continued litigation for decades. It was argued that the
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defendant had attempted to dishonestly resile from a concluded
transaction after receiving consideration and that equities clearly lay in
favour of the plaintiff.
116. Accordingly, the plaintiff prayed for a decree of specific
performance, declaration of ownership over the suit property, declaration
that the cancellation deeds executed by the defendant were null and void,
recovery of possession, permanent injunction and costs of the suit.
Arguments by Ld. Counsel for defendant
117. The defendant submitted that the plaintiff has filed the present suit
seeking specific performance, declaration, injunction, and possession in
respect of property No. C-123, Karampura, New Delhi. According to the
plaintiff, the defendant agreed to sell the suit property on 25.10.1995 for
Rs. 2.40 lakhs and also sought waiver of a loan of Rs. 1.50 lakhs
allegedly taken from the plaintiff. The plaintiff claimed that she paid Rs.
2.40 lakhs in cash on 26.10.1995, obtained possession of the property,
and executed several related documents with the defendant. She further
alleged that the defendant later disappeared after cheating several
persons, that an FIR under Section 420 IPC was registered against the
defendant, and that the defendant falsely implicated the plaintiff with the
police in order to dispossess her. The plaintiff also claimed that the
property was sealed by the police on 09.11.1995 and that her belongings
remained inside the property. She stated that she had earlier filed
proceedings for injunction and also approached the Delhi High Court in
relation to the sealing of the property. The plaintiff further stated that her
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earlier suit was dismissed by the trial Court in 2004, but the Delhi High
Court in 2013 granted liberty to institute a fresh suit, leading to the filing
of the present proceedings.
118. The defendant contested the suit and has also filed a counterclaim
seeking declaration that the alleged documents dated 12.10.1995 and
26.10.1995 are void, along with recovery of Rs. 7 lakhs as damages for
false litigation. The defendant argued that the suit is barred by limitation
because the documents relied upon by the plaintiff are from 1995 and the
present suit was instituted nearly nineteen years later. The defendant also
contended that the suit is barred by the principle of res judicata under
Section 11 CPC because the earlier judgment dated 30.09.2004 deciding
the ownership issue in favor of the defendant was never set aside.
119. The defendant stated that she is the lawful owner of the property,
having purchased it in 1986 from the previous owner through registered
documents and having remained in possession with her family. She
claimed that she borrowed only Rs. 50,000/- from the plaintiff in 1994 at
interest, but that the plaintiff later increased the interest rate and coerced
her into signing documents regarding repayment. According to the
defendant, on 25.10.1995 the plaintiff, her husband, her mother, and
associates forcibly entered her house, assaulted and threatened her family,
and compelled her under duress to execute property documents in favor
of the plaintiff. The defendant alleged that she received no sale
consideration and that the plaintiff forcibly occupied the property and
valuable articles lying inside. She stated that she lodged a policeCiv DJ 609675/16 Shashi v. Sudarshan Sharma Page no. 45 of 87
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complaint, leading to registration of FIR No. 586/95 under Sections 384,
342, 387, 506, and 34 IPC. The defendant further claimed that she later
cancelled the allegedly coerced documents and issued a legal notice to the
plaintiff in November 1995.
120. The defendant emphasized that the plaintiff’s own cross-
examination reveals contradictions and admissions fatal to her case. The
plaintiff admitted knowledge in November 1995 that the defendant was
disputing the documents, yet she did not seek declaration, specific
performance, or possession within the limitation period. The defendant
argued that under Articles 54 and 58 of the Limitation Act, the limitation
period expired in 1998, making the present suit hopelessly time-barred.
The defendant also pointed out that the plaintiff had earlier filed only a
suit for injunction and not a comprehensive suit for declaration or specific
performance, despite being aware of the dispute.
121. The defendant further relied upon the findings in the earlier suit
decided on 30.09.2004, where the trial Court held that the defendant was
the lawful owner and that the documents relied upon by the plaintiff had
been obtained under threat and coercion. The defendant argued that these
findings have attained finality because the Delhi High Court did not set
aside the judgment, and therefore the present suit is barred by res
judicata. Reliance is placed on judgments including “Subhash Chander v.
Fathey Singh” and “Sulochana Amma v. Narayanan Nair” to argue that
findings on title in an injunction suit can operate as res judicata in
subsequent proceedings.
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122. The defendant also highlighted inconsistencies regarding the
articles allegedly found in the property. During inspection by a Local
Commissioner in 2005, several household and business items belonging
to the defendant were found in the suit property. The plaintiff initially
denied knowledge of these items and later claimed some belonged to her,
but allegedly failed to produce any credible evidence. The defendant
argued that the plaintiff fabricated a list of articles many years later in an
attempt to explain the presence of the defendant’s belongings in the
property.
123. The defendant submitted that the plaintiff’s conduct throughout the
litigation demonstrates dishonesty and lack of bona fides. The plaintiff
allegedly made contradictory statements regarding the defendant’s
business activities, the running of chit fund committees, and the
ownership of the goods found in the property. The defendant’s children,
examined as DW2 and DW3, supported the defendant’s version regarding
coercion, forcible dispossession, and the events of 25-26 October 1995.
124. The defendant further stated that although the plaintiff and others
were acquitted in the criminal case arising out of FIR No. 586/95, the
defendant has challenged the acquittal before the Delhi High Court
through a criminal revision petition which remains pending. The
defendant emphasized that civil and criminal proceedings operate
independently and that the acquittal does not validate the plaintiff’s claim.
125. The defendant argued that the plaintiff’s suit is legally untenable
because the issues of ownership and validity of the documents have
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already been adjudicated in earlier proceedings. The defendant submitted
that the plaintiff deliberately failed to seek proper reliefs within the
prescribed limitation period and cannot now revive stale claims through
the present suit. It is prayed that the plaintiff’s suit be dismissed with
costs and that the defendant’s counterclaim be decreed in her favor.
126. Ld. Counsel for defendant has relied upon the following case laws
in support of his arguments : Subhash Chander v. Fathay Singh 232
(2016) DLT 723. Sarwan Singh v. State of Punjab AIR 2002 SC 3652,
Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs AIR 2008 SC 2033
and Sulochana Amma v. Narayanan Nair AIR 1994 SC 152
Court observation and findings
Issue No. 1 Whether the suit of the plaintiff is barred by limitation? OPD
127. The onus to prove this issue was upon the defendant. It is settled
law that limitation is ordinarily a mixed question of law and fact. Where
the defendant specifically pleads that the suit is barred by limitation, the
burden initially lies upon the defendant to establish the factual foundation
attracting the relevant provisions of the Limitation Act. Once the relevant
dates are admitted or proved, the Court has a duty to examine the issue
independently since a decree cannot be passed in a suit barred by
limitation.
128. The defendant has pleaded that the entire cause of action, if any,
arose in October, 1995 when the documents dated 12.10.1995 and
26.10.1995 were executed. According to the defendant, she immediately
challenged the said documents by issuing a legal notice dated 09.11.1995,
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executing cancellation deeds, lodging FIR No.586/1995 and initiating
criminal proceedings. It is therefore argued that the plaintiff had complete
notice that the transaction was repudiated in the year 1995 itself and any
suit for specific performance or declaration ought to have been instituted
within the period prescribed under the Limitation Act. The defendant has
further pleaded that the liberty granted by the Delhi High Court on
20.12.2013 could not revive a claim already barred by limitation.
129. The plaintiff has denied the objection. It is pleaded that she had
continuously asserted her rights since 1995 by instituting civil
proceedings, contesting appeals and pursuing remedies before the Delhi
High Court. It is further pleaded that the judgment dated 20.12.2013
expressly granted liberty to institute an appropriate suit for declaration,
possession and specific performance and the present suit was filed within
the period granted by the High Court. According to the plaintiff, the
present suit is therefore maintainable.
130. The principal relief claimed in the plaint is one of specific
performance. Hence, Article 54 of the Limitation Act, 1963 governs the
relief of specific performance. Under Article 54, limitation is three years
from the date fixed for performance, or, where no such date is fixed, from
the date when the plaintiff has notice that performance is refused.
131. The expression “date fixed for performance” has been interpreted
by the Supreme Court to mean a definite and ascertainable calendar date.
Where no such date exists, limitation begins only upon a clear and
unequivocal refusal to perform the contract. Ahmadsaheb Abdul Mulla v.
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Bibijan AIR 2009 SC 2193. Similarly, in Gunwantbhai Mulchand Shah
v. Anton Elis Farel AIR 2006 SC 1556 the Supreme Court has held that
where the agreement does not prescribe any fixed date, mere execution of
the agreement does not commence limitation. The crucial factor is the
plaintiff’s knowledge of refusal by the defendant.
132. The plaintiff has also sought declaration regarding ownership and
cancellation of subsequent cancellation deeds. Such relief is governed by
Article 58 of the Limitation Act, which provides a period of three years
from the date when the right to sue first accrues. Khatri Hotels Pvt. Ltd.
v. Union of India AIR 2011 SC 3590
133. It is not disputed that the Agreement to Sell relied upon by the
plaintiff is dated 26.10.1995. A perusal of the said agreement shows that
no specific calendar date for execution of the sale deed was stipulated.
The agreement merely records the obligations of the parties and the
execution of ancillary documents. Hence, the second part of Article 54
would apply.
134. The defendant has consistently pleaded that immediately after
execution of the documents she repudiated the transaction by issuing a
legal notice dated 09.11.1995, executing cancellation deeds and lodging
FIR No.586/1995 alleging coercion and fraud. These facts are specifically
pleaded in the counterclaim and reiterated in the replication.
135. Prima facie, these acts constitute a clear assertion by the defendant
that she did not intend to honour the alleged transaction. If viewed in
isolation, they would amount to refusal within the meaning of Article 54.
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However, the matter does not rest there. The evidence on record further
shows that disputes regarding the same property immediately entered into
prolonged civil litigation. The plaintiff instituted a suit for injunction, the
matter travelled in appeal and second appeal, and ultimately culminated
in the judgment dated 20.12.2013 passed by the Delhi High Court.
136. The judgment dated 20.12.2013 assumes considerable significance.
While dismissing the plaintiff’s appeal arising from the injunction suit,
the High Court observed that the plaintiff had not sought appropriate
reliefs of declaration, possession and specific performance and granted
liberty to institute appropriate proceedings in accordance with law. The
High Court, however, did not record any finding extending or condoning
limitation; nor did it expressly hold that the proposed suit would
necessarily be within limitation.
137. The grant of liberty by the High Court cannot by itself enlarge the
statutory period prescribed under the Limitation Act. Equally, such liberty
cannot be rendered meaningless. The proper approach is to treat the
liberty as preserving the plaintiff’s right to institute a fresh suit, while
leaving all legal objections, including limitation, open for adjudication in
that suit.
138. The plaintiff has argued that the entire period spent in earlier
litigation should be excluded. However, there is no specific plea invoking
the ingredients of Section 14 of the Limitation Act, nor is there evidence
to show that the earlier proceedings failed solely on account of defect of
jurisdiction or other cause of like nature. The earlier suit was dismissed
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because the plaintiff had confined herself to the relief of injunction and
had not sought declaration or specific performance. Such dismissal does
not automatically attract Section 14 Limitation Act.
139. Nevertheless, the defendant, on whom the burden lay, has also not
established with certainty the exact date when the plaintiff acquired
notice of refusal within the meaning of Article 54. Although the defendant
relies upon the legal notice and cancellation deeds, the parties thereafter
remained engaged in continuous litigation concerning the same property
for nearly two decades. The Court cannot ignore that the plaintiff
consistently asserted rights under the alleged transaction throughout this
period. The continuity of litigation is a relevant circumstance while
appreciating whether the plaintiff had abandoned or waived her
contractual rights.
140. The objection of limitation in the present case is closely
intertwined with disputed questions of fact concerning the nature of the
transaction, the effect of the earlier proceedings and the legal
consequence of the liberty granted by the Delhi High Court. On the
evidence led, the defendant has not discharged the burden of proving that
the suit is ex facie barred by limitation.
141. In view of the above discussions, the defendant has failed to
establish that the present suit is liable to be dismissed as barred by
limitation. The objection is therefore rejected. Issue No. 1 is decided
against the defendant and in favour of the plaintiff.
Additional Issue No. 1 Whether the suit of the plaintiff is liable to be
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dismissed under Section 11 of CPC? OPD
142. The onus to prove this issue was upon the defendant. The
defendant has pleaded that the plaintiff had earlier instituted a suit for
permanent injunction in respect of the same property, which came to be
dismissed by the learned Additional District Judge vide judgment dated
30.09.2004. The said judgment was affirmed by the Hon’ble Delhi High
Court while deciding RFA No.596/2004 and RSA No.232/2004. It is,
therefore, contended that the issues sought to be raised in the present suit
have already attained finality and are barred by the doctrine of res
judicata.
143. The plaintiff has controverted the said plea by submitting that the
earlier suit was merely one for permanent injunction and neither the relief
of specific performance nor declaration of title nor recovery of possession
had been claimed therein. It is further pleaded that while deciding the
appeals, the Hon’ble Delhi High Court itself granted liberty to the plaintiff
to institute an appropriate suit seeking comprehensive reliefs. According
to the plaintiff, the present suit is founded upon the liberty expressly
reserved by the High Court and therefore cannot be held to be barred
under Section 11 CPC.
Principles Governing Res Judicata
144. Section 11 CPC embodies the rule of res judicata, which is founded
upon the principle that there should be finality in litigation and that no
person should be vexed twice over the same cause. The provision bars a
subsequent suit only when the matter directly and substantially in issue in
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the subsequent suit was directly and substantially in issue in a former suit
between the same parties, was heard and finally decided by a Court
competent to try the subsequent suit.
145. The Hon’ble Supreme Court in Sulochana Amma v. Narayanan
Nair AIR 1994 SC 152 held that even a finding recorded in an earlier suit
may operate as res judicata if the issue was directly and substantially in
issue and its determination was necessary for the decision. In Hope
Plantations Ltd. v. Taluk Land Board AIRONLINE 1998 SC 5, it was
held that before applying Section 11 CPC, the Court must carefully
examine whether the issue decided earlier is identical to the issue arising
in the subsequent proceedings.
146. Simultaneously, the Hon’ble Supreme Court in Anathula Sudhakar
v. P. Buchi Reddy AIR 2008 SC 2033, explained that an injunction suit
and a title suit stand on different footings. A decision in an injunction suit
does not invariably conclude questions of title unless the issue of title was
directly put in issue and finally adjudicated.
Appreciation of Earlier Proceedings
147. The certified copy of the judgment dated 30.09.2004 has been
proved on record. A perusal thereof reveals that the earlier suit instituted
by the plaintiff was substantially one seeking permanent injunction
restraining interference with her alleged possession over the suit property.
It is also borne out from the record that in the said proceedings, the
plaintiff did not seek:
(a) specific performance of the Agreement to Sell dated 26.10.1995;
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(b) declaration that she had become owner of the property;
(c) cancellation of the cancellation deeds executed by the defendant; or
(d) recovery of possession.
148. These reliefs constitute the principal reliefs in the present suit.The
appeals arising out of the earlier judgment culminated in the judgment
dated 20.12.2013 passed by the Hon’ble Delhi High Court. The High
Court observed that the plaintiff had omitted to claim the appropriate
substantive reliefs and granted liberty to institute an appropriate suit in
accordance with law. The High Court, however, clarified that all legal
objections available to the defendant would remain open.
149. The significance of the said judgment cannot be overlooked. Had
the earlier proceedings finally concluded every issue now raised before
the Court, there would have been no occasion for the Hon’ble High Court
to reserve liberty to institute a comprehensive suit. The defendant has
strongly relied upon certain observations contained in the judgment dated
30.09.2004 regarding coercion, ownership and possession.
150. Those findings undoubtedly constitute relevant evidence while
appreciating the merits of the present dispute. However, every
observation recorded in an earlier judgment does not automatically
operate as res judicata. The Court must determine whether such findings
were directly and substantially necessary for deciding the earlier
injunction suit.
151. The earlier suit essentially required the Court to determine whether
the plaintiff was entitled to protection of her alleged possession by way of
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injunction. The present suit, on the other hand, calls upon the Court to
adjudicate questions relating to enforceability of the Agreement to Sell,
readiness and willingness, declaration of title, validity of cancellation
deeds and recovery of possession. These questions involve a substantially
wider enquiry than that undertaken in the earlier injunction proceedings.
152. Furthermore, the liberty granted by the Hon’ble Delhi High Court
demonstrates that the plaintiff was not precluded from seeking such
substantive reliefs by means of a properly constituted suit. The liberty
granted by the High Court did not amount to a declaration that the
plaintiff would necessarily succeed on merits. It merely preserved her
right to institute a fresh suit. Thus, all defences on merits, including
limitation, maintainability and proof of the transaction, continued to
remain available to the defendant.
153. The Court is of the opinion that while the earlier judgments have
considerable evidentiary value and may be relied upon for appreciating
the conduct of the parties, they do not operate as a statutory bar under
Section 11 CPC in respect of the present comprehensive suit. The
defendant has not established that every issue now arising was directly
and substantially in issue and finally adjudicated in the earlier
proceedings.
154. Accordingly, the defendant has failed to prove that the present suit
is barred by the principles of res judicata under Section 11 CPC.
Additional Issue No.1 is decided against the defendant and in favour of
the plaintiff.
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Additional Issue No. 2 Whether the Court has no jurisdiction in view of
the Arbitration Agreement allegedly executed between the parties? OPD
155. The burden of proving this issue was upon the defendant. The
defendant has pleaded that prior to institution of the present proceedings,
the parties had agreed to appoint an Arbitrator for resolution of their
disputes and, therefore, the jurisdiction of the Civil Court stood impliedly
barred. It is contended that in view of such agreement, the disputes ought
to have been referred to arbitration and the present suit is not
maintainable.
156. The plaintiff has denied the said plea and has submitted that no
valid and enforceable arbitration agreement existed between the parties. It
is further contended that the present suit seeks declaration of title, specific
performance of an agreement to sell, cancellation of documents,
possession and permanent injunction, which are matters falling within the
jurisdiction of the Civil Court. It is also argued that the defendant never
invoked the provisions of the Arbitration and Conciliation Act, 1996.
157. Section 8 of the Arbitration and Conciliation Act, 1996 obligates a
judicial authority to refer the parties to arbitration only where a valid
arbitration agreement exists, the disputes are covered by such agreement
and a party applies for such reference before submitting its first statement
on the substance of the dispute. The existence of an arbitration agreement
does not, by itself, automatically divest the Civil Court of jurisdiction.
The party relying upon such agreement must establish its existence,
validity and applicability to the disputes in question.
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158. The Hon’ble Supreme Court in Booz Allen and Hamilton Inc. v.
SBI Home Finance Ltd. AIR 2011 SC 2507, held that disputes relating to
rights in rem, including questions concerning title to immovable property,
are ordinarily not arbitrable, whereas disputes relating to subordinate
contractual rights in personam may be referred to arbitration. In Vidya
Drolia v. Durga Trading Corporation AIRONLINE 2020 SC 929, the
Hon’ble Supreme Court reiterated that while arbitration is to be
encouraged, disputes involving adjudication of title against the world at
large and matters requiring exercise of sovereign judicial powers
ordinarily remain within the exclusive jurisdiction of Civil Courts.
159. In the present case, the defendant has relied upon an alleged
agreement for appointment of an Arbitrator. The evidence reveals that the
original arbitration agreement has not been proved in accordance with
law. The defendant has also failed to establish that the alleged agreement
contained a valid arbitration clause covering the disputes which are the
subject matter of the present suit.
160. Furthermore, the defendant has not placed on record any material
to show that an application under Section 8 of the Arbitration and
Conciliation Act, 1996 was ever filed seeking reference of the disputes to
arbitration before filing the written statement on merits. Instead, the
defendant has chosen to contest the suit on merits, has filed an elaborate
written statement, led oral evidence, produced documentary evidence and
has even filed a detailed counterclaim seeking declaration, damages and
injunction.
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161. Having elected to invoke the jurisdiction of the Court by filing a
substantive counterclaim, the defendant cannot simultaneously contend
that the Civil Court lacks jurisdiction. The conduct of the defendant
clearly demonstrates submission to the jurisdiction of the Civil Court.
Even otherwise, the reliefs claimed in the plaint include:
(i) specific performance of the Agreement to Sell;
(ii) declaration of ownership;
(iii) declaration that the cancellation deeds are null and void;
(iv) possession; and
(v) permanent injunction.
162. The counterclaim also seeks declaration regarding the validity of
documents and consequential reliefs. These disputes necessarily require
adjudication regarding the validity of documents affecting rights in
immovable property. Such issues cannot be effectively decided merely on
the basis of the alleged arbitration arrangement, particularly when no
valid arbitration agreement has been proved before the Court. The
defendant has failed to discharge the burden cast upon her.
163. In view of the above discussions, the defendant has failed to
establish that the jurisdiction of the Court is barred by any valid
arbitration agreement. Accordingly, Additional Issue No.2 is decided
against the defendant and in favour of the plaintiff.
Additional Issue No.3 Whether the present suit is undervalued? OPD
164. The burden of proving this issue was upon the defendant. The
defendant has pleaded that the market value of the suit property at the
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time of institution of the suit was substantially higher than the valuation
adopted by the plaintiff. It is contended that the plaintiff has deliberately
undervalued the suit to bring it within the pecuniary jurisdiction of the
Court and has paid deficient Court fees.
165. The plaintiff has denied the objection and has pleaded that the suit
has been valued strictly in accordance with the consideration mentioned
in the Agreement to Sell and in conformity with the provisions of the
Court Fees Act and the Suits Valuation Act.
166. It is well settled that the burden to establish improper valuation lies
upon the party raising such objection. Mere assertion that the market
value is higher is not sufficient. The defendant is required to produce
cogent evidence such as prevailing circle rates, sale deeds of comparable
properties; valuation reports; official notifications; or expert evidence
demonstrating that the valuation adopted by the plaintiff is incorrect. The
Hon’ble Supreme Court has consistently held that objections regarding
Court fees and valuation cannot succeed in the absence of substantive
evidence and that the Court must examine the substance of the relief
claimed rather than the form in which it is couched.
167. In the present case, except making a bald assertion that the suit
property was worth more than the value shown in the plaint, the
defendant has not produced any evidence whatsoever. No notification
relating to circle rates prevailing in the year of institution of the suit has
been produced. No valuation report has been proved. No official witness
from the office of the Sub-Registrar has been examined to establish the
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prevailing market value. No comparable sale transactions have been
placed on record. The objection therefore remains unsupported by any
documentary or oral evidence.
168. On the other hand, the plaintiff has valued the relief of specific
performance on the basis of the consideration recited in the Agreement to
Sell and has valued the declaratory and consequential reliefs in
accordance with the plaint. The defendant has failed to point out any
statutory provision under which such valuation is demonstrably incorrect.
Hence, the objection regarding valuation cannot be accepted.
169. The defendant has failed to prove that the suit has been improperly
valued for the purposes of Court fees or jurisdiction. Additional Issue
No.3 is accordingly decided against the defendant and in favour of the
plaintiff.
Issue No. 2 Whether the plaintiff is entitled for relief of specific
performance as claimed? OPP
170. The burden of proving this issue rests entirely upon the plaintiff. In
a suit for specific performance, the plaintiff must establish by cogent and
reliable evidence that there existed a valid and concluded contract, That
the agreement was supported by lawful consideration, that the plaintiff
has always been ready and willing to perform her part of the contract, and
that the defendant committed breach by refusing to perform her
obligations.
171. The relief of specific performance is governed by the provisions of
the Specific Relief Act, 1963. It is an equitable and discretionary relief.
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Even where execution of an agreement is proved, the Court is not bound
to grant specific performance unless the plaintiff satisfies all statutory
requirements. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao 1995 SCC
(5) 115, the Hon’ble Supreme Court held that continuous readiness and
willingness is the sine qua non for grant of specific performance. In J.P.
Builders v. A. Ramadas Rao Civil Appeal no. 9821-9822 of 2010 decided
on 22.11.2010, it was held that readiness relates to financial capacity
whereas willingness is reflected from the conduct of the plaintiff, and
both must coexist from the date of contract till the date of decree.
172. In K.S. Vidyanadam v. Vairavan AIR 1997 SC 1751, the Supreme
Court further held that the Court must also examine the surrounding
circumstances and the conduct of the parties while exercising equitable
discretion. According to the plaintiff, the defendant had borrowed a sum
of Rs.1,50,000/- on 12.10.1995 and subsequently agreed to sell the suit
property for a total consideration of Rs.3,90,000/-. It is pleaded that the
earlier loan amount stood adjusted and the balance consideration of
Rs.2,40,000/- was paid in cash on 26.10.1995, whereafter the defendant
executed the Agreement to Sell, General Power of Attorney, Special
Power of Attorney, Will, Receipt, Affidavit and Indemnity Bond and
delivered vacant possession of the suit property.
173. The defendant has categorically denied the plaintiff’s version. It is
pleaded that only Rs.50,000/- had been borrowed as a friendly loan. The
plaintiff and her associates forcibly took the defendant and her husband to
the office of the Sub-Registrar. The signatures were obtained under
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threats and coercion; that no sale consideration of Rs.3,90,000/- was ever
paid; that possession was never voluntarily delivered; and that
immediately thereafter the defendant repudiated the transaction by issuing
legal notice, executing cancellation deeds and lodging FIR No.586/1995.
The counterclaim reiterates that the documents were obtained by fraud,
coercion and criminal intimidation and therefore confer no enforceable
right upon the plaintiff.
Appreciation of Documentary Evidence
Agreement to Sell and Connected Documents
174. The plaintiff has relied upon the Agreement to Sell dated
26.10.1995, GPA, SPA, Will, Receipt, Affidavit and Indemnity Bond.
PW-2 and PW-3, officials from the office of the Sub-Registrar, have
produced the registration records available in their office. Their testimony
establishes that documents bearing the relevant registration particulars
exist in the official records. However, neither PW-2 nor PW-3 was the
registering officer who actually witnessed execution of the documents.
Both witnesses admitted during cross-examination that they had no
personal knowledge regarding execution of the documents or payment of
consideration. Their testimony is therefore confined to proving the
existence of official records and cannot, by itself, establish the voluntary
nature of the transaction.
Whether Execution of Documents is Proved
175. During her evidence, the defendant has not denied that the
signatures appearing on several documents are hers. The principal
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defence is not one of forgery of signatures but one of coercion and
absence of consideration. Hence, the Court is satisfied that execution of
documents in the office of the Sub-Registrar substantially stands proved.
However, proof of execution is fundamentally different from proof of a
valid and enforceable contract.
A person may admit signatures yet plead that the documents were
executed under coercion, undue influence or without consideration. Such
pleas require independent adjudication.
Whether Consideration Stands Proved
176. According to the plaintiff, the consideration consisted of two
components:
(i) adjustment of Rs.1,50,000/- allegedly advanced earlier; and
(ii) payment of Rs.2,40,000/- in cash on 26.10.1995.
The defendant disputed both components. The plaintiff produced
the receipt allegedly executed by the defendant acknowledging payment
of Rs.2,40,000/-. However, except the said receipt, no independent
evidence has been adduced to establish actual payment. PW-1 admitted
that no bank statement, withdrawal slip, account books or income-tax
record showing withdrawal or availability of Rs.2,40,000/- has been
produced.
177. The plaintiff admittedly maintained financial records during the
relevant period. Yet no documentary evidence reflecting payment of such
a substantial amount has been placed before the Court. No independent
witness present at the time of alleged payment has been examined. So far
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as adjustment of the earlier loan is concerned, the plaintiff asserted that
Rs.1,50,000/- had been advanced on 12.10.1995. The defendant, however,
admitted borrowing only Rs.50,000/-.
178. Thus, financial dealings between the parties are admitted.
However, the quantum of such transaction remains seriously disputed.
The plaintiff has not produced independent documentary evidence
conclusively establishing advancement of Rs.1,50,000/-. Thus, the
passing of total consideration of Rs.3,90,000/- has not been satisfactorily
proved.
Plea of Coercion
179. The defendant has consistently pleaded that the documents were
executed under coercion. She relied upon the FIR, legal notice dated
09.11.1995, cancellation deeds and criminal proceedings. These
contemporaneous documents certainly establish that immediately after
execution of the documents the defendant disputed the transaction. Such
prompt conduct lends some support to the defendant’s plea that disputes
arose immediately after registration. However, prompt repudiation by
itself does not establish coercion. The defendant was required to prove
that the execution of documents was not voluntary. Apart from her own
testimony and that of DW-2 and DW-3 who are her children no
independent witness has been examined.
180. No official from the office of the Sub-Registrar has supported the
allegation that the defendant was compelled to execute documents. No
independent public witness allegedly present at the Sub-Registrar’s office
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has been examined. Although FIR No.586/1995 was registered, criminal
proceedings ultimately resulted in acquittal. The Court is conscious that
acquittal in criminal proceedings does not conclude civil rights.
Moreover, mere registration of an FIR also does not establish fraud or
coercion. Civil liability must be determined independently on the basis of
evidence adduced before the Court on the touchstone of preponderance of
probabilities. Consequently, the Court is unable to hold that coercion
stands affirmatively proved.
Readiness and Willingness
181. The plaintiff has continuously asserted her rights since 1995.
Institution of earlier litigation, prosecution of appeals and filing of the
present suit demonstrate willingness to enforce the contract. Nevertheless,
willingness alone is not sufficient. Readiness necessarily includes proof
that the plaintiff had complied with her own contractual obligations.
Since the plaintiff asserted that the entire sale consideration already stood
paid, the burden lay upon her to establish payment by satisfactory
evidence. As already discussed, such payment has not been satisfactorily
established. Therefore, the statutory requirement under Section 16(c) of
the Specific Relief Act is not satisfactorily proved.
Upon cumulative appreciation of the evidence, the Court arrives at
the following conclusions:
(i) execution of certain documents substantially stands proved;
(ii) financial transactions between the parties are admitted;
(iii) immediate disputes also stand proved;
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(iv) coercion has not been affirmatively established by the defendant;
(v) however, payment of the entire sale consideration has also not been
satisfactorily proved by the plaintiff.
182. The burden of proving an enforceable contract rests upon the
plaintiff. The plaintiff cannot succeed merely because the defendant has
failed to prove coercion. The plaintiff must independently establish every
ingredient entitling her to the equitable relief of specific performance. On
an overall assessment, the Court finds that the plaintiff has failed to
discharge that burden. Consequently, the Court is not satisfied that the
plaintiff has established an enforceable contract warranting a decree for
specific performance. Issue No.2 is decided against the plaintiff and in
favour of the defendant. The plaintiff is not entitled to the equitable relief
of specific performance of the Agreement to Sell dated 26.10.1995.
Issue No. 3 Whether the plaintiff is entitled for relief of declaration as
claimed? OPP
183. The burden of proving this issue was entirely upon the plaintiff.
The plaintiff seeks a declaration that she has become the lawful owner of
the suit property by virtue of the Agreement to Sell dated 26.10.1995,
General Power of Attorney, Special Power of Attorney, Will, Receipt,
Affidavit and Indemnity Bond executed by the defendant. She has further
sought a declaration that the cancellation deeds executed by the defendant
subsequently are illegal, void and inoperative.
184. The defendant has denied the plaintiff’s entitlement and has
pleaded that no title ever passed in favour of the plaintiff, as no registered
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conveyance deed was ever executed. It is further pleaded that the alleged
documents were executed under coercion, without consideration, and
therefore even otherwise did not create any legal right in favour of the
plaintiff.
185. Ld. Counsel for the plaintiff submitted that the entire sale
consideration had been paid and possession had been delivered on
26.10.1995. It is argued that the execution of the GPA, Agreement to Sell,
Will and other connected documents constituted a complete transaction in
accordance with the practice then prevailing in Delhi and the defendant
could not subsequently revoke or cancel the same unilaterally.
186. Per contra, Ld. Counsel for the defendant submitted that an
Agreement to Sell does not convey title and that ownership in an
immovable property of the value involved could be transferred only by a
duly executed and registered sale deed. It is further argued that the
cancellation deeds merely recorded the defendant’s repudiation of the
alleged transaction and did not create any fresh rights.
187. A declaratory decree under Section 34 of the Specific Relief Act
can be granted only when the plaintiff establishes an existing legal
character or an existing legal right to the property. The Court must
therefore examine whether the documents relied upon by the plaintiff
created ownership in law.
188. Section 54 of the Transfer of Property Act expressly provides that a
contract for sale does not, by itself, create any interest in or charge upon
the property agreed to be sold. Likewise, Sections 17 and 49 of the
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Registration Act require transfer of ownership in immovable property of
the prescribed value through a registered instrument. In Suraj Lamp &
Industries (P) Ltd. v. State of Haryana AIR 2012 SC 206 it was held that
transactions based upon GPA, Agreement to Sell and Will do not by
themselves convey title nor create ownership in immovable property.
Such documents may create contractual rights inter se the parties but
cannot substitute a registered sale deed. Even prior to the aforesaid
judgment, the statutory scheme under the Transfer of Property Act and the
Registration Act recognised transfer of ownership only through a duly
executed conveyance. The plaintiff has also relied upon the fact that the
transaction took place in 1995 when such transactions were commonly
entered into. Mere prevalence of a practice, however, cannot override
statutory provisions.
189. It has already been held while deciding Issue No.2 that execution
of certain documents substantially stands proved. However, the Court has
also held that the plaintiff has failed to satisfactorily establish payment of
the entire sale consideration and consequently failed to prove entitlement
to specific performance. Admittedly, no registered sale deed was ever
executed in favour of the plaintiff. No mutation was ever sanctioned in
favour of the plaintiff. No municipal records, revenue records or other
public records reflecting transfer of ownership have been produced. The
plaintiff has also not produced any document executed after 26.10.1995
recognising her as owner by any statutory authority. Hence, even
assuming that the Agreement to Sell and ancillary documents were
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executed, they did not, by themselves, transfer ownership.
Validity of Cancellation Deeds
190. The plaintiff has also sought declaration that the cancellation deeds
executed by the defendant are null and void. The defendant admittedly
executed cancellation deeds shortly after the alleged transaction and also
issued legal notice disputing the entire transaction. The plaintiff has
argued that such cancellation was unilateral and therefore legally
ineffective. There can be no dispute with the proposition that a completed
conveyance cannot ordinarily be annulled by unilateral execution of a
cancellation deed.
191. The Hon’ble Supreme Court in Satya Pal Anand v. State of Madhya
Pradesh AIRONLINE 2015 SC 139 held that disputes regarding validity
of conveyances and cancellation of documents are matters falling within
the jurisdiction of the competent civil Court. However, the present case
does not involve cancellation of a registered sale deed transferring
ownership. The documents relied upon by the plaintiff are agreements
and powers of attorney.
192. The cancellation deeds executed by the defendant merely recorded
her repudiation of the transaction. Whether such repudiation was justified
or not is one matter. Whether such cancellation divested ownership is
altogether another. Since ownership itself never stood transferred through
a registered conveyance, the cancellation deeds cannot be said to have
divested an already vested legal title.
193. Simultaneously, the Court is not required to pronounce upon the
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independent legality of each cancellation deed in the abstract because the
plaintiff has failed to establish any existing legal title requiring protection.
In other words, once the plaintiff has failed to prove an enforceable right
to specific performance and ownership, the prayer seeking declaration
that the cancellation deeds are void necessarily fails as a consequential
relief.
Effect of Earlier Litigation
194. Ld. Counsel for the plaintiff has also relied upon the observations
made by the Hon’ble Delhi High Court while granting liberty to institute
the present proceedings. The Court has already held while deciding the
issue of res judicata that the liberty granted by the High Court preserved
the plaintiff’s right to institute a properly constituted suit. However, such
liberty did not amount to a declaration that the plaintiff had become
owner of the property. The plaintiff was still required to establish her
entitlement on evidence. For the reasons already recorded while deciding
Issue No.2, she has failed to discharge that burden.
The plaintiff has failed to establish:
(i) that ownership ever passed in her favour;
(ii) that she acquired any legal character entitling her to a declaration
under Section 34 of the Specific Relief Act;
(iii) that the cancellation deeds require to be declared void in order to
protect any existing legal right.
195. The evidence on record, viewed as a whole, falls short of proving
the plaintiff’s entitlement to the declaratory reliefs claimed. Hence, the
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plaintiff is not entitled to a decree declaring her to be the owner of the suit
property or declaring the cancellation deeds to be null and void. Issue
No.3 is decided against the plaintiff and in favour of the defendant.
Issue No. 4 Whether the plaintiff is entitled for relief of possession as
prayed? OPP
196. The burden of proving this issue was entirely upon the plaintiff.
Since the relief of possession is founded upon the plaintiff’s alleged
contractual and proprietary rights flowing from the Agreement to Sell
dated 26.10.1995 and the documents executed contemporaneously
therewith, the plaintiff was required to establish not only her entitlement
to the property but also a better legal right to possession than that of the
defendant.
197. The defendant has denied the plaintiff’s claim and has pleaded that
she continues to be the lawful owner of the suit property and that the
plaintiff had illegally occupied the property for some period during the
pendency of earlier litigation. It is further pleaded that possession
ultimately stood restored to the defendant pursuant to judicial
proceedings and that the plaintiff has no subsisting right to seek recovery
of possession.
198. Ld. Counsel for the plaintiff argued that vacant physical possession
of the suit property had been delivered on 26.10.1995 simultaneously
with execution of the Agreement to Sell and other documents. It was
submitted that thereafter the plaintiff remained in possession until the
premises were sealed pursuant to criminal proceedings and that
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subsequently possession was restored to the defendant because of the
dismissal of the earlier injunction suit. It was contended that once the
plaintiff succeeds in establishing her contractual rights, she is entitled to
restoration of possession.
199. Per contra, Ld. Counsel for the defendant argued that possession
was never voluntarily delivered pursuant to any lawful sale transaction.
According to the defendant, the plaintiff had unlawfully entered the
premises under the cover of the disputed documents and the defendant
ultimately regained possession through orders passed by the competent
Court. It was submitted that the plaintiff, having failed to establish title or
specific performance, cannot seek recovery of possession.
200. A decree for possession can be granted only when the plaintiff
establishes a legal right to possess the property. Where the plaintiff bases
the claim upon ownership, such ownership must first be proved. Where
possession is claimed as a consequential relief to specific performance,
the plaintiff must first succeed in establishing entitlement to specific
performance. The Hon’ble Supreme Court in Anathula Sudhakar (supra)
held that where title is disputed, the plaintiff must first establish title
before seeking recovery or protection of possession. Likewise, the relief
of possession being consequential cannot ordinarily survive once the
principal reliefs fail.
201. The plaintiff has deposed that possession was handed over
immediately after execution of the documents dated 26.10.1995. The
defendant has consistently denied voluntary delivery of possession. The
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evidence on record further establishes that criminal proceedings
commenced almost immediately after the execution of the documents.
The property thereafter remained under sealing proceedings and became
the subject matter of prolonged litigation before various Courts. The
Local Commissioner’s proceedings placed on record merely indicate the
condition of the property at the relevant time and the articles found
therein.
202. The Local Commissioner’s report, neither conclusively establish
lawful title nor does it conclusively determine the legal right to
possession. During cross-examination, the plaintiff admitted that she is
presently not in possession of the suit property. The defendant is
admittedly in possession pursuant to earlier judicial proceedings. The
plaintiff has relied upon the alleged delivery of possession in 1995.
203. Even assuming for the sake of argument that possession had been
delivered at some stage, such fact alone cannot confer a right to recover
possession unless the plaintiff establishes an enforceable legal
entitlement. The Court has already held while deciding Issue No.2 that
the plaintiff has failed to prove entitlement to specific performance.
Similarly, while deciding Issue No.3, the Court has held that the plaintiff
has failed to establish ownership or any legal character entitling her to
declaration. Once these findings have been recorded, the foundation of
the relief of possession substantially disappears.
204. Ld. Counsel for the plaintiff argued that possession should
nevertheless be restored because the plaintiff had remained in possession
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for a considerable period. This submission cannot be accepted. Possession
claimed in the plaint is not founded upon prior settled possession
simpliciter but upon the plaintiff’s alleged contractual rights arising out of
the Agreement to Sell. Those contractual rights having not been
established to the satisfaction of the Court, the consequential relief cannot
independently survive. It is also noteworthy that the plaintiff has not
pleaded or proved acquisition of title by adverse possession or any other
independent source. Nor has the plaintiff sought recovery of possession
on the basis of any statutory tenancy or licence.
205. Thus, the only foundation for seeking possession is the alleged
agreement to sell. Since that foundation has failed, the consequential
relief necessarily fails. The plaintiff has failed to establish a better legal
right to possession than the defendant. The defendant, being the admitted
recorded owner and presently in possession, cannot be dispossessed in
these proceedings in the absence of proof of an enforceable contractual
obligation. Accordingly, the plaintiff has failed to prove her entitlement to
recovery of possession. Issue No.4 is decided against the plaintiff and in
favour of the defendant.
Issue No. 5 Whether the plaintiff is entitled for relief of permanent
injunction as prayed? OPP
206. The burden of proving this issue was upon the plaintiff. The
plaintiff has sought a decree of permanent injunction restraining the
defendant, her agents, attorneys, servants, representatives or any person
claiming through her from alienating, transferring, creating third party
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interest or interfering with the plaintiff’s alleged rights in respect of the
suit property. The defendant has contested the said relief by submitting
that the plaintiff has neither title nor possession nor any enforceable
contractual right in the property and, therefore, no injunction can be
granted.
207. Ld. Counsel for the plaintiff submitted that the plaintiff had
lawfully purchased the suit property after payment of the entire
consideration and had remained in possession till she was illegally
dispossessed. It is argued that unless the defendant is restrained, she may
create third-party rights and frustrate the plaintiff’s contractual rights.
208. On the other hand, Ld. Counsel for the defendant submitted that the
plaintiff has failed to prove either ownership or entitlement to specific
performance. The defendant being the admitted recorded owner and
presently in possession is entitled to deal with her property in accordance
with law. It is contended that no injunction can be granted against the true
owner at the instance of a person who has failed to establish any
enforceable legal right.
209. The grant of perpetual injunction is governed by Sections 37 and
38 of the Specific Relief Act, 1963. A perpetual injunction is granted only
to protect an existing legal or equitable right. The plaintiff must establish
a subsisting legal right and a corresponding obligation on the part of the
defendant. It is well settled that injunction is an equitable and
discretionary relief. A person seeking equity must establish a legal
foundation for the relief claimed.
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210. The Hon’ble Supreme Court in Anathula Sudhakar (supra) has held
that where title itself is seriously disputed and the plaintiff fails to
establish such title, the consequential relief of injunction ordinarily
cannot be granted. Similarly, in Dalpat Kumar v. Prahlad Singh AIR 1993
SC 276 B, the Hon’ble Supreme Court observed that injunction is
intended to protect an existing right and not to create one.
211. The plaintiff has sought injunction as a consequential relief flowing
from the Agreement to Sell dated 26.10.1995 and the documents executed
contemporaneously therewith. The Court has already held while deciding
Issue No.2 that the plaintiff has failed to establish entitlement to specific
performance.
212. It has further been held under Issue No.3 that the plaintiff has
failed to establish ownership or any legal character warranting a
declaration. Under Issue No.4, the Court has further held that the plaintiff
has failed to establish entitlement to recovery of possession. Thus, every
substantive right pleaded by the plaintiff has failed. The prayer for
permanent injunction is merely consequential. Once the substantive
reliefs fail, the consequential equitable relief cannot ordinarily survive.
The defendant admittedly continues to be the recorded owner of the suit
property. She is also in settled possession pursuant to earlier judicial
proceedings. No material has been placed on record to show that the
defendant is proposing to alienate the property in violation of any
subsisting contractual obligation enforceable against her. Mere
apprehension expressed by the plaintiff is insufficient for grant of a
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perpetual injunction.
213. The Court is also conscious that an injunction restraining the true
owner from dealing with her property cannot be granted in favour of a
person who has failed to establish either ownership or an enforceable
contractual right. Such a decree would virtually amount to granting
indirectly what has already been refused directly under Issues No.2, 3 and
4. Equity does not permit such a course. Hence, the plaintiff has failed to
establish any legal basis for grant of permanent injunction. Accordingly,
the plaintiff is not entitled to the relief of permanent injunction. Issue
No.5 is decided against the plaintiff and in favour of the defendant.
Issue No. 6 Whether the counter claim of defendant is barred by
limitation? OPP
214. The burden of proving this issue was upon the plaintiff, who has
contended that the counterclaim seeking declaration that the documents
dated 12.10.1995 and 26.10.1995 are null and void, damages and
permanent injunction has been filed after an inordinate delay and is
therefore barred by limitation.
215. The defendant/counterclaimant has denied the said objection. It is
pleaded that the counterclaim was filed along with the written statement
under Order VIII Rule 6-A CPC and arose out of the same transaction
forming the subject matter of the suit. It is further pleaded that since the
plaintiff asserted rights under the disputed documents in the present suit,
the counterclaim is maintainable and within limitation.
216. A counterclaim under Order VIII Rule 6-A CPC is substantially
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treated as a plaint and is governed by the law of limitation applicable to
an independent suit. The Hon’ble Supreme Court in Mahendra Kumar v.
State of Madhya Pradesh 1987 SCR (3) 155 held that though a
counterclaim may be filed with the written statement, it must nevertheless
satisfy the law of limitation applicable to the relief claimed. The
distinction between a defence and a counterclaim must always be kept in
view. A plea that a document is void may be available as a defence even if
no declaration is sought. However, where the defendant seeks an
affirmative decree declaring documents void and claims consequential
reliefs, the claim must independently satisfy the provisions of the
Limitation Act.
217. The declaration sought in the counterclaim is governed by Article
58 of the Limitation Act. The claim for damages is governed by the
Articles applicable to compensation claims under the Limitation Act.
Appreciation of Pleadings and Evidence
218. According to the defendant herself, the documents in question were
executed on 12.10.1995 and 26.10.1995 under coercion. She further
pleads that immediately thereafter she issued legal notice dated
09.11.1995, executed cancellation deeds, lodged FIR No.586/1995,
initiated criminal proceedings and continuously disputed the validity of
the documents.
219. Thus, according to the defendant’s own pleadings, she had
complete knowledge of the alleged illegality in October-November, 1995
itself. If the defendant intended to obtain a decree declaring the
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documents void, the right to sue first accrued in 1995. No independent
suit seeking declaration was instituted within the prescribed period. The
defendant has argued that the plaintiff’s institution of the present suit gave
rise to a fresh cause of action. This submission cannot be accepted in
respect of the declaratory relief. The plaintiff’s reliance upon the
documents may furnish a fresh occasion to contest the plaintiff’s claim by
way of defence.
220. However, it does not revive limitation for seeking an independent
declaratory decree regarding documents which, according to the
defendant herself, had been repudiated in 1995. Similarly, the claim for
damages is founded upon alleged acts committed in October, 1995. No
subsequent independent cause of action giving rise to damages has been
pleaded. Hence, the claim for damages also falls beyond the prescribed
period of limitation. The plaintiff has, therefore, succeeded in establishing
that the counterclaim, insofar as it seeks substantive declaratory and
monetary reliefs, is barred by limitation. Issue No.6 is decided in favour
of the plaintiff and against the defendant/counterclaimant.
Issue No. 7 Whether the defendant is entitled for relief as claimed in
counter claim? OPD
221. The burden of proving this issue rested entirely upon the
defendant/counterclaimant. By way of the counterclaim, the defendant
has sought a declaration that the documents dated 12.10.1995 and
26.10.1995, namely the Agreement to Sell, General Power of Attorney,
Special Power of Attorney, Will, Receipt, Affidavit and Indemnity Bond,
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were obtained by fraud, coercion and criminal intimidation and are
therefore null and void. The defendant has further sought damages of
Rs.7,00,000/- and a decree of permanent injunction restraining the
plaintiff from interfering with her peaceful possession and enjoyment of
the suit property.
222. The plaintiff has contested the counterclaim by filing a written
statement thereto, denying each allegation of fraud, coercion and non-
payment of consideration. According to the plaintiff, the documents were
voluntarily executed before the office of the Sub-Registrar after receipt of
the entire sale consideration and the counterclaim has been filed merely
to defeat the plaintiff’s lawful rights.
223. Although Issue No.6 has been decided holding that the substantive
reliefs claimed in the counterclaim are barred by limitation, the Court
considers it appropriate to record findings on merits as well, since
extensive evidence has been adduced by both parties. The counterclaim
substantially rests upon four principal allegations:
(i) that the documents dated 12.10.1995 and 26.10.1995 were executed
under coercion and criminal intimidation;
(ii) that no sale consideration of Rs.3,90,000/- was ever paid;
(iii) that the plaintiff had obtained signatures upon blank papers and
fabricated documents; and
(iv) that the defendant suffered mental agony, financial loss and litigation
expenses on account of the plaintiff’s conduct.
Whether Fraud and Coercion Have Been Proved
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224. The defendant has examined herself as DW-1. She has reiterated
the pleadings contained in the written statement and the counterclaim.
She deposed that the plaintiff, along with certain associates, compelled
her and her husband to accompany them to the office of the Sub-Registrar
where signatures were obtained under threats. She further deposed that
she never intended to sell the property and that only a friendly loan had
been taken.
225. DW-2 and DW-3 have also supported the version of the defendant
to the extent of subsequent events and the disputes that arose between the
parties. However, neither DW-2 nor DW-3 is an eyewitness to the actual
execution of the documents before the Sub-Registrar.
226. From the testimony of DW-1, it is evident that immediately after
the execution of the documents, the defendant issued a legal notice dated
09.11.1995, executed cancellation deeds and lodged FIR No.586/1995.
These contemporaneous acts demonstrate that the defendant disputed the
transaction at the earliest available opportunity. Such prompt conduct is
undoubtedly a relevant circumstance while appreciating the genuineness
of the defence. However, prompt repudiation cannot by itself establish
that the documents were obtained by coercion.
227. Allegations of fraud, coercion and undue influence are serious
allegations. Under the provisions of the CPC, such allegations must not
only be specifically pleaded but must also be proved by cogent and
convincing evidence. The Hon’ble Supreme Court in Prem Singh v.
Birbal AIR 2006 SC 3608 held that fraud is never presumed and must be
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strictly proved by the party alleging it. Similarly, Section 104 Bharatiya
Sakshya Adhiniyam, 2023 places the burden upon the party asserting a
fact.
228. In the present case, the defendant has not examined any
independent witness present at the office of the Sub-Registrar. No official
from the office of the Sub-Registrar has deposed that the execution was
involuntary or that any protest was raised by the defendant at the time of
registration. No medical evidence has been produced to corroborate the
allegation of physical assault immediately preceding the execution of the
documents.
229. Although criminal proceedings were initiated, the record further
shows that the plaintiff ultimately came to be acquitted. While this
acquittal does not conclude the civil dispute, it is nevertheless a
circumstance which cannot be entirely ignored. Civil cases are decided on
the principle of preponderance of probabilities. Even applying this
standard, the evidence led by the defendant falls short of proving coercion
as an affirmative fact. Thus, the Court is unable to return a finding that
the documents were executed solely as a result of coercion or fraud.
Whether Absence of Consideration Stands Proved
230. The defendant has consistently pleaded that only a friendly loan of
Rs.50,000/- had been advanced and that no sale consideration of
Rs.3,90,000/- was ever paid. As already discussed while deciding Issue
No.2, the plaintiff has also failed to satisfactorily prove payment of the
entire consideration. The consequence, however, is not that the
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defendant’s version automatically stands proved.
231. The weakness of the plaintiff’s evidence cannot substitute proof of
the defendant’s affirmative case. The burden under the counterclaim
remained upon the defendant to establish that the consideration
mentioned in the documents was fictitious or fabricated. Except her own
testimony, no independent documentary evidence has been produced to
conclusively establish that only Rs.50,000/- had changed hands.
Therefore, the defendant has also failed to discharge the burden resting
upon her in this regard.
Whether the Defendant is Entitled to a Declaration
232. A decree of declaration under Section 34 of the Specific Relief Act
is discretionary. The defendant seeks an affirmative declaration that the
documents executed in October 1995 are null and void. Such a
declaration can be granted only upon clear proof that the documents are
void or voidable and liable to be cancelled. As already discussed, neither
fraud nor coercion has been affirmatively proved.
Moreover, the declaratory relief has already been held to be barred
by limitation under Issue No.6. Accordingly, the defendant is not entitled
to a declaratory decree.
Whether the Defendant is Entitled to Damages.
233. The defendant has claimed damages of Rs.7,00,000/- towards
mental agony, harassment and litigation expenses. A claim for damages
must be supported by evidence regarding both the factum of loss and its
quantification. No accounts, receipts, valuation reports or documentary
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evidence have been produced to establish the alleged financial loss. The
claim has remained a bare assertion in the pleadings. Mental agony by
itself, without proof of a legally compensable injury in a civil action of
this nature, cannot justify the award of damages claimed. Thus, the
defendant has failed to establish entitlement to damages.
Whether Permanent Injunction Should Be Granted
234. The defendant is admittedly in possession of the suit property. The
plaintiff’s suit for specific performance, declaration, possession and
injunction has been dismissed. Once the plaintiff’s suit stands dismissed,
there remains no subsisting decree or enforceable right in favour of the
plaintiff which threatens the defendant’s possession.
235. The defendant has not produced any evidence to establish any
immediate or imminent threat by the plaintiff to dispossess her after
institution of the present proceedings. A perpetual injunction cannot be
granted merely because litigation has taken place between the parties. In
the facts of the present case, no case for grant of perpetual injunction has
been made out.
236. Upon an overall appreciation of the pleadings, oral evidence and
documentary evidence, although the plaintiff has failed to establish
entitlement to the reliefs claimed in the suit, the defendant has equally
failed to establish the affirmative reliefs claimed in the counterclaim. The
defendant has not proved fraud, coercion, fabrication or entitlement to
damages by evidence sufficient to warrant the grant of a decree in her
favour. The counterclaim is liable to be dismissed both on the ground of
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limitation and on merits. Issue No.7 is decided against the
defendant/counterclaimant and in favour of the plaintiff. The
counterclaim is accordingly dismissed.
Relief
237. The evidence led by both parties has established that serious
disputes arose immediately after the execution of the documents in
October, 1995 and that the parties have remained engaged in litigation for
several decades. However, the plaintiff has failed to establish the essential
ingredients entitling her to the reliefs claimed in the suit, while the
defendant has equally failed to establish the affirmative reliefs claimed in
the counterclaim.
238. Civil litigation is decided on the touchstone of preponderance of
probabilities. The burden cast upon each party to establish the relief
claimed by it cannot be discharged merely by exposing weaknesses in the
case of the opposite party. Each party must independently succeed on the
strength of its own evidence. In the present case, neither party has
discharged that burden to the extent necessary for grant of the substantive
reliefs sought. Accordingly, the suit instituted by the plaintiff is liable to
be dismissed. The counterclaim preferred by the defendant is also liable
to be dismissed.
239. Having regard to the long-standing relationship between the
parties, the nature of the dispute, the prolonged litigation spanning several
decades and the facts and circumstances of the case, the ends of justice
would be adequately served by directing the parties to bear their own
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costs. No order as to costs is therefore made under Section 35 CPC.
240. The suit filed by the plaintiff stands dismissed. The counterclaim
filed by the defendant also stands dismissed. The parties shall bear their
own costs. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Digitally
signed by
SUSHEEL SUSHEEL
BALA DAGAR
BALA Date:
DAGAR 2026.07.09
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Announced in open Court (Susheel Bala Dagar)
on 09th Day of July 2026 District Judge-08, West
Tis Hazari Courts, Delhi.
(This judgment contains 87 pages.)
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