(1.) Plaintiff filed this suit, interalia, alleging that he became member of Vardhman Cooperative House Building Society, Kamla Nagar, Delhi in the year 1966 and against payment of Rs. 14,155.40 from time to time to the Society, he was allotted plot bearing No. 87, situated in Madipur Village, Delhi, admeasuring 217.77 sq.yds. Sub-lease regarding this plot was executed in his favour on 13lh August 1974. It is alleged that the plaintiff completed the construction of boundary wall around the said plot in the year 1990. Defendant No. 2 is the son of defendant No. 1 and both the defendants have no right whatsoever over the said plot. On 30th April 1990 the defendants threatened to occupy the plot forcibly and as such the plaintiff was compelled to file a suit of permanent injunction against them on that date itself in the Subordinate Courts. However, in the suit no ex parte ad interim injunction was granted. The plaintiff filed another application under Order 39 Rules 1 & 2 alongwith application for appointment of a Local Commissioner under Order 26 Rule 9 Civil Procedure Code and notices of both these applications were issued to the defendants for 1st June 1990. For want of service on the defendants the case was postponed to 5th July 1990. It is pleaded that after 1st June 1990 the defendants broke open the locks placed on the front side and look forcible possession of the said plot. Now they intend to raise construction on it. It was prayed that a decree of possession of said plot No. 87 may be passed against the defendants. They be further restrained by means of a decree of permanent injunction from subletting/parting with possession/transferring/alienating or raising any construetion on the said plot.
(2.) Defendant No. 2 contested the suit by filing written statement. By way of preliminary objections, it is alleged that the suit as framed is not maintainable, that the suit is barred under Section 53-A, Transfer of Property Act that the suit has not been. properly valued for the purposes of payment of Court fees and jurisdiction. On merits, by way of preliminary submissions it is further alleged that the plaintiff was a member of Vardhman Cooperative House Building Society Ltd, Kamal Nagar whom the President of India allotted land vide lease deed dated 13th August 1974. In turn the Society offered plots to its members and the plaintiff was allotted plot No. 87, Madipur Village. However, it is claimed that the plaintiff is no more a member of the said Society. It is stated thai the plaintiff had neither the means nor intention to raise construction on the said plot and he agreed to sell it to the answering defendant under an agreement to sell dated 5th July 1988. Relevant clauses of the agreement to sell have been set out in Para No. 4 of the written statement. It is further pleaded that on 5th July 1988 itself the plaintiff executed an irrevocable general power of allorney, three special power of attorneys, a Will and affidavits in addition to delivering Form "C", Form "D", Form-1, letter dated 10th May 1989, receipts dated 24th June 1966 and 28lh May 1988, letter dated 30th May 1988 and sanctioned plans, all in originals to the answering defendant. Since permission to sell the said plot could not he granted to the plaintiff by the Lessor it was found necessary to enter into an agreement for construction to enable the answering defendant to raise construction on the plot. Accordingly, an agreement for construction was also executed between the plaintiff and the answering defendant on 5lh July 1988. In pursuance of the said agreement to sell the plaintiff handed over the vacant possession of plot to the answering defendant on 5th July 1988 and thereafter he started construction of a residential house thereon in July 19S8 itself and substantial construction stands already made. It is claimed that the plans for construction were submitted by the answering defendant on 9th June 1988 and payment of Rs.1,883.00 was made vide receipt No. 957817 dated 28lh May 1988. Rs.366.00 were further paid on 30th May 1988 vide receipt No. 324442 for extension of lime. It is alleged that to enable Ihe answering defendant to obtain sanction of the plans for construction on the said plot, the plaintiff further executed indemnity bond, affidavits and undertaking. Plans were duly sanctioned by the DDA on 9th June 1988 and sanction was valid upto 8th June 1997. Extension was granted by the DDA upto 24th December 1990 vide letter dated 10th May 1990. For obtaining extension from DDA by the answering defendant the plaintiff also signed Forms "C" and "D" and handed over to the answering defendant who deposited them with the DDA. It is denied that the plaintiff got constructed boundary wall around said plot No. 87 in the year 1988 or thereafter at any point of time as alleged. It is further denied that the defendants broke open the locks placed on the front side and took forcible possession of the suit plot as alleged. It is admitted that the plaintiff filed a suit of permanent injunction in the Subordinate Courts, against the defendants. It is stated lhal in lhal suit material facts regarding execution of agreement to sell daled 5th July 1988 in favour of the answering defendant was suppressed and the present suit has been filed only to extract more money from the defendants. It is further slated that defendant No. 1 is neither a necessary nor proper party and the suit is, therefore, bad for mis-joinder of parties. On 20th September 1990 Sh. Mohinder Rana, Advocate,'appearing for both the defendants made the statement that defendant No. 1 adopts the written statement filed by defendant No. 2.
(3.) In the replication filed to the written statement of defendant No. 2, the plaintiff denied the execution of receipt, agreement to sell, general power of attorney, special power of attorneys, Will, agreement of construction and affidavits in favour of defendant No. 2 as alleged. It is further denied that any amount of R.s. 1,10,000.00 was received by the plaintiff from defendant No. 2 towards sale price of the suit plot. It is stated that the plaintiff paid a sum of Rs. 2,000.00 to defendant No. 2 for getting the plans sanctioned on his behalf. Defendant No. 2 deposited some of the amount for this purpose. However, the receipt thereof was not given by him to the plaintiff despite repeated requests. The indemnity bond, affidavits and undertaking were given by the plaintiff to defendant No. 2 tor getting the plans sanctioned by the DDA. It is denied that the original sanctioned plan is in possession of defendant No. 2. It is claimed that the construction over the suit plot was commenced by defendant No. 2 in the third week of May 1990. On the pleadings of the parties the following issues were framed:-