Suit would be dismissed after trial
2) court would not dismiss suit at this stage
3) burden of proof is upon plaintiff to prove that he had to cancel deal as seller did not have clear and marketable title to property
Validity of Bayana-Recovery Suit
Party A lives in freehold property in Delhi from 1990 till date. The house tax, electricity, and water are in the name of party A from 1990 till date. No one has ever disputed the claim of party A as the owner of the property at any legal forum. Party A has registered power of attorney and possession of the property from 1990 till date. It has sufficient evidence to prove that it has been living in the property from 1990, has constructed a floor and has done many alterations to the property from time to time. Party A agreed to sell the property to party B who is a property dealer. Party B visited party A at home, checked the papers and a bayana (earnest) money of 3 lacs was given to party B. A bayana receipt was signed which has no details of property. It has following details: Name of seller, Name of purchaser, Property address, Party who will cancel the deal will pay 6 lacs & Witnesses Later party A told party B to do a registered agreement for sale-purchase which was not done by party B. A few days later, party B sent notice to party A claiming that the property doesn’t belong to party A and hence party B wants to cancel the deal. Party A replied to notice with all the evidence that the property belongs to it. Party B has filed a recovery suit in court for 6 lacs and has attached copies of a chain of power of attorneys for the same property as of party A. Party B maintains that it got those xerox copies of the chain of papers from the real owner. The so-called owner has never challenged party A at any legal forum or lodged any FIR to claim that the property belongs to him. "As those papers have a lot of discrepancies like that chain of power of attorneys state that every time the property has changed hands, it has been sold vacant, etc. Also, the so-called real owner has not appeared before the court even after many notices. So, can party A submit an application to dismiss the recovery suit of party B under any legal section as the mere basis of recovery suit is false as the person who gave them those xerox copies of property papers has not appeared before the court even after several notices. Also, that person or any other person has never lodged any FIR or court case against party A claiming the ownership of the property from 1990. Hence, the reason given by party B to cancel the Banaya deal is malafide."
Asked 6 years ago in Civil Law
19 Answers
Forfeit the Bayaana because this is simply is to drag the property in the court so that price may come down, but if the court order for the status quo then maintain it but you can sell it to other party if sauda goes according to you.
1. Has the real owner been impleaded as defendant in the civil suit for recovery of money?
2. The recovery suit has been filed by B. The suit cannot be dismissed for non-appearance by a defendant. If the 'real owner' does not appear then court is free to proceed ex parte against him.
3. The court is obligated to hold a full fledged trial to decide the suit.
4. Furthermore, in the given scenario, A ought to have filed a suit for specific performance.
There is no provision of law under which the case can be dismissed at this stage. The court would conduct full trial .Preliminary objections regarding this could have been taken initially, but it cannot be done now.
Also, you should consider filing a suit for declaration in civil Court to declare you as the sole owner of the property on the basis of adverse possession so that you do not have to face troubles in selling the property in future after the decree of the court declaring you as the owner.
Hello,
yes definitely the party A can contest the case since from the limited acts told by you it is very clear that A is the absolute owner of the property and no where has his title been challenged and it has been more than 25 years that he has been living there.
it is a strong case for A to contest.
Regards
Party B said that as party A does not have clear title, it wants to cancel the deal. Party B has provided the xerox copies of the chain of power of attorneys in which every time the property has changed hands, it has been stated that it is under the possession of no one. It is false as party A has submitted in the court enough proof that it is under their possession from 1990 till date. Party B maintains that it got those xerox copies of the chain of papers from the actual owner. The so-called owner has not appeared in court after several notices. Also, he has never approached any legal forum from 1990 till date to stake his claim on the property. So, if the reason for canceling the deal is malafide, will the case not be dismissed? Cannot we file an application for the same? Also, party B has a similar case of fraud for which a district court ordered registration of FIR against him. Please advise.
Asked 6 years ago
File all the papers with an application in the case, court will see whether to dismiss the case or to lodge FIR.
1. The suit may eventually be dismissed but only after holding a full fledged trial where the plaintiff and defendant will have to lead their evidence and undergo cross-examination.
2. The suit cannot be dismissed at the threshold due to non-appearance by one of the defendants. He can be proceeded against ex parte.
3. Unless the plaint is perused threadbare it is not possible to state whether an application for rejection of plaint can be filed on the ground that it does not reveal a cause of action.
case would be dismissed only after trial
2) at admission stage suit would not be dismissed
in my opinion, the reason for cancelling the deal is not malafide as legally you do not have the proper title to the property.
Even if the person is having another cases against him, it would have no bearing on your case.
Definitely you can file and the same only has been advised above.
No separate case has to be filed but an application in the same case for dismissal of the case has to be filed.
Regards
Yes it can be one ground for dismissal. You can file an application for the same. That FIR will be helpful. You can also register the FIR against him
1. in the bayana receipt it is stated that party who cancels the deal will pay 6 lacs to the other
2. in your case B has sought to cancel the deal so he must be liable to pay A 6 lacs as per the contract [bayana receipt]
3. so B does not have any cause of action against A
4. Also before making payment to A, B ought to have exercised due diligence by ascertaining the true owner
5. it is settled law that POA does not confer ownership rights, then what on earth compelled B to pay A the advance?
6. you can file an application under Order 7 Rule 11 of CPC
As you have all the documents in support of your claim you need to submit all the documents in a reply to the court and contest to matter in in that too differently advance amount taken in this regard and let the court decide if your plane means genuine and you have all the right on the title of the property
the suit for recovery would not be dismissed at this stage,
the case will be disposed of on merit by the court after hearing both the parties,
party A should file a suit for specific performance against the party B
1. Party A has no title deed registered in his favour or any court order passed in his favour based on which he can claim thathe is the legal oqwner of the said property.
2. He shall have to submit his Written Statement before he Court in connection with the said Recovery Suit filed against him.
1. Copy of POA does not indicate title of the property. Registration of conveyance deed/will /Court order does.
2. Party A can claim ownership of the said property on the ground of adverse possession.
3. Withoutb the Court order, he can not own the title of the property and convey the same to a third party.
Dear Sir
The suit will be dismissed after the trail because the witness of plaintiff is not appearing before the court and also you have uninterrupted possession of property since 1990 so property will be your on basis of adverse possession.
And the application for dismissing the suit will not be entertained by court at this stage.
Party B is just trying to drag the deal to pressurising you for making out of court settlement by either lowering the price of property or want to make extra profit from byana only.
And you can also file a suit for claiming the property to be yours through adverse possession for more than 12 years.
Party A has to challenge the claim made by Party B before court on the basis of the documentary evidences he has produced before court because the photocopies of any document is not admissible as primary evidence before court.
He can challenge this only during trial of the case and he cannot claim that just because the other party who has provided the papers has not appeared before court hence the suit may be dismissed.
The court will not entertain any such petition because there is no provision in law for such an event.
You may challenge the case properly in court on the basis of documentary evidences in your support.
The party B seems to be a person who is not a law abiding citizen, he may go to any extent to satisfy his greed intentions.
You may very carefully handle the case though your case is very strong and you can win this case.