Valmiki J. Mehta, J. (Oral):--

1. This second appeal is filed under Section 100 CPC impugning the judgment of the first appellate court dated 11.3.2013 by which the first appellate court set aside the judgment of the trial court dated 20.2.2008. Trial court by the judgment dated 20.2.2008 had decreed the suit filed by the appellant-plaintiff for possession of the suit property being DDA Flat No. 139, LIG (Ground Floor), B-Block, Pocket-2, Sector 17, Rohini, Delhi-85. Trial court also granted damages at Rs. 2000/- per month w.e.f 2.9.2003 till the premises are vacated by the respondent/defendant. In view of the judgment of the first appellate court, the suit for possession and damages has been dismissed.

2. The facts of the case as pleaded by the appellant-plaintiff were that the suit property was originally allotted to one Sh. Ashok Kumar son of Sh. T.S.Thakur by the DDA. Sh. Ashok Kumar transferred rights in the suit property to Smt. Shanno Devi by means of usual documents being the agreement to sell, power of attorney etc. Smt. Shanno Devi sold the suit property to the respondent/defendant and the appellant –plaintiff purchased the suit property from the respondent/defendant on 31.1.2001 by means of the usual documents being the agreement to sell, power of attorney, receipt etc.

3. Respondent-defendant contested the suit denying that she had transferred the suit property to the appellant-plaintiff and that the appellantplaintiff in connivance with her son-in-law Sh. Vimal Vohra who had got the thumb impressions of the appellant on some papers on the pretext of giving loan. It was pleaded that nature of the documents was not disclosed when thumb impressions were taken, and which documents dated 31.1.2001 are now being used by the appellant-plaintiff to claim ownership of the suit property.

4. Appellant-plaintiff proved on record the documents by which the rights in the suit property were transferred to her by the respondent/defendant and which are exhibited as Ex.PW1/21 to Ex.PW1/28. Appellant-plaintiff also had in her possession the entire chain of original documents right from Ashok Kumar through Shanno Devi through the respondent-defendant and to the appellant-plaintiff, and all these original documents have been filed and proved before the trial court as Ex.PW1/1 to Ex.PW1/20.

5. The first appellate court has dismissed the suit by arriving at two conclusions. Firstly, it is concluded that the documents being the agreement to sell, power of attorney etc. Ex.PW1/21 to Ex.PW1/28 are unregistered documents and therefore hit by the judgment of the Supreme Court in the case of Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana, (2012) 1 SCC 656, and consequently no rights came to the appellant-plaintiff by these documents. The second reason for dismissing the suit was that what is the amount of consideration paid to the respondent-defendant is not clear because a consideration of Rs. 1 lac was stated in the documents Ex.PW1/21 to Ex.PW1/28 but the appellant-plaintiff stated in his cross-examination that he had paid consideration of Rs. 3,50,000/- to the respondent/defendant. The relevant observations of the first appellate court are contained in paras 13 and 14 of the impugned judgment and which read as under:-

“13. After hearing the arguments and going through the record, I found that respondent is claiming his right under the documents Ex.PW1/21 to Ex. PW1/28. These documents are agreement to sell un-registered, the receipt of Rs. 1,00,000/- Ex.PW1/22, GPA which is registered document Ex. PW1/23, affidavit Ex. PW1/25, indemnity bond Ex. PW1/25, SPA Ex. PW1/26, Will Ex. PW1/27, but the witness to this Will has not been examined, therefore it cannot be said to have been proved, even otherwise, the testator is alive, therefore, there is no question to rely upon this Will, the possession letter Ex.PW1/28. However, it is submitted that the possession was not delivered as in the plaint itself it is mentioned by the plaintiff that th

Click Here to Read the rest of this document