Delhi District Court
Sh. Bilttu Yadav vs Sh. Horil Yadv on 9 December, 2022
Dated: 09.12.2022
IN THE COURT OF MS. NIHARIKA KUMAR SHARMA
ACJ/ARC/CCJ/NORTH DISTRICT/ ROHINI COURTS/ DELHI
In the matter of :- CS No. 35489/16
Sh. Bilttu Yadav
S/o Sh. Iqbal Yadav
R/o Khasara No. 558/59, BlockA,
Pappu Colony, Prahaladpur, Phase-2,
Delhi - 110042. ................. Plaintiff
Vs.
Sh. Horil Yadv
S/o Sh. Iqbal Yadav
R/o Khasara No. 558/59, BlockA,
Pappu Colony, Prahaladpur, Phase-2,
Delhi - 110042. .................. Defendant
CS No. 35489/16
Date of Institution 09.09.2014
Date of reserving the order 26.11.2022
Date of pronouncement of the order 09.12.2022
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
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Dated: 09.12.2022
JUDGMENT
1. RELIEF SOUGHT
(a) Permanent Injunction in favour of plaintiff and against the defendant whereby defendant, his/their legal heirs, successors, relatives, servants, be restrained from trespassing, hindrancing, creating third party interest or dispossessing the plaintiff in whatsoever manner without due process of law in the suit property khasara no 58/59, Block A, Pappu Colony Prahlad Pur Phase -2 Delhi-110053 measuring 33 sq yards (herein called suit Property).
(b) Mandatory Injunction whereby restraining the defendant from creating any kind of documents i.e GPA, Sale Deed, Will, mutation, Constructions or third party interest in the suit property khasara no 58/59, Block A, Pappu Colony PrahladPur Phase -2 Delhi-110053 measuring 33 sq yards (herein called suit Property.) till the final disposal of suit.
2. FACTS OF THE CASE AS PER THE PLAINT The plaintiff is residing and in possession at khasara no 58/59, Block A, Pappu Colony PrahladPur Phase -2 Delhi- 110053 measuring 33 sq yards (herein called suit Property.) Defendant is real brother of plaintiff who resides in remaining 33 square yards portion in the property bearing Khasara no 58/59, Block A, Pappu Colony PrahladPur Phase -2 Delhi, since 15 April 1998. The total measurement of both the properties is 66 sq. yards pertain to the khasara no 58/59, Block A, Pappu Colony Prahlad Pur Phase -2 Delhi.
That plaintiff on 15-4-1998 from his own funds/assets purchased the suit property khasara no 58/59, Block A, Pappu Colony PrahladPur Phase -2 Delhi-
CS No. 35489/16 Bilttu Yadav Vs. Horil Yadav Page No. 2 of 12 Dated: 09.12.2022 110053 measuring 33 sq. yards from Sh. Tara Chand vide execution of General of Attomey, Agreement to sell, Affidavit, Receipt all dated 15-4-1998.
That the defendant tried to take possession of the property of the plaintiff and in this regard plaintiff made the complaint before the SHO Shahbad Dairy, Delhi. On 4-12-2010, defendant produce plaintiff's property documents papers for getting bail as surety bond without will, wishes, knowledge of the plaintiff. On 11-6-2012, complaint was made to the SHO Shahbad Dairy, Delhi whereby defendant tried to dispossess the plaintiff and his family members and in the forcible manner defendant tried to put the plastic goods material in the premises of plaintiff and when plaintiff resist the same the defendant threaten him with dire consequences. On 2-8-2012 vide DD no 40B PS Shahbad Dairy, Head Constable Dinesh Kumar filed the status report which clearly disclosed that how in brutal manner defendant beaten to the plaintiff and his wife with malicious illegal intention to get mutated, transfer the entire suit property by the plaintiff in name of defendant and this manner defendant wants to dispossess the plaintiff and his family members from the suit property.
That defendant has possession of title documents such as Agreement to Sell, General Power of Attorney and defendant may misuse the same in any manner. On 1-9-2012 defendant in collusion with local property dealers held a meeting to prepare a conspiracy the plaintiff will be dispossessed without due process of law and sale out the entire suit property in illegal manner either by hook or by crook. On 3-9-2012 the defendant invited a local property dealer for sale of the suit property with fabrication of false documents such as agreement to Sell, General Power of Attorney, will, receipt etc. Defendant forced the plaintiff to sign blank papers but plaintiff refused.The defendant , in order to to fulfil his illegal acts of design i.e. transfer or conversation suit property documents 33 sq. yards in favour of defendant therefore threatened the plaintiff and his family members. He also quarrelled with the plaintiff, beaten wife of the plaintiff with iron rods. Local police did not take any action so complaint to the office of Dy. Commissioner Of Police. Documents of treatment of CS No. 35489/16 Bilttu Yadav Vs. Horil Yadav Page No. 3 of 12 Dated: 09.12.2022 wife of plaintiff are also placed on the record. That defendant threatened the plaintiff that plaintiff failed to transfer his share of 33 squards in the name of the defendant, plaintiff will face dire consequences. Hence, the present case.
3. GROUNDS OF DEFENCE AS PER THE WRITTEN STATEMENT • Defendant is the actual owner of the suit property in question as he purchased the same from its previous owner Sh. Tara Chand S/o sh. Nathu R/o Vill & PO: Pahladpur, Delhi, through all required documents i.e. GPA and other concerend documetns dated 15.04.1998 for the entire property of land area measuring 66 Sq. Yds, Out of Khasra No. 58/59, Pahladpur Vihar, Phase-II, Delhi, 73 • The plaintiff has no right, title or interest in the suit property. • The defendnat is already the owner of the entire property measuring 66 sq.yds, which was executed in his favour by the earlier owner in favour of the defendant. The documents alleged to be prepared by the plaintiff are totally manipulated, invalid. false, forged, and fabricated.
4. ISSUES FRAMED- Upon completion of the pleatings, vide orrder dated 11.04.2016 following issues were framed:
1) Whether plaintiff is entitled for a decree of permanent injunction thereby restraining the defendant, his Lrs, successors, relatives, servants etc. from trespassing, creating hindrance, any kind of 3 party interest and dispossessing the plaintiff from the suit property i.e Khasra No. 58/59, Block A, Pappu Colony, Prahladpur, Phase-2, Delhi-53, measuring 33 sq. yards as prayed for? OPP.
2) Whether plaintiff is entitled for a decree of mandatory injunction thereby restraining the defendant from creating any kind of documents le GPA, Sale Deed, Will, Mutation, construction etc in the above said suit property? OPP.
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5. PLAINTIFF EVIDENCE A. Plaintiff in order to prove his case has examined only one witness i.e. himself. He has tendered his evidence by way of affidavit Ex. PW1/1 which bears his signatures at point A and B. He has also relied upon the following doucments:
1) Ex. PW1/A is the complaint dated 03.09.2012 to SHO Shahbad Dairy.
2) Ex. PW1/B is the complaint dated 04.12.2010 to SHO Shahbad Dairy.
3) Ex. PW1/C is the complaint dated 11.06.2012 to SHO Shahbad Dairy.
4) Ex. PW1/D is the copy of DD No. 2-8-12 to PS Shahbad Dairy.
5) Ex. PW1/E is the copy of Status Report.
6) Ex. PW1/F is the discharge slipl of BSA Hospital dated 31.07.2012.
7) Ex. PW1/G is the Aadhar Card.
8) Ex. PW1/H is the Electricity Bill dated 31.10.2006.
9) Ex. PW1/I and Ex. PW1/J are the photos of suit property.
10)Ex. PW1/K is the site plan.
11) Mark A is the GPA dated 15.04.1998.
12)Mark B is the Agreement to Sell dated 15.04.1998.
13)Mark C is the Affidavit dated 15.04.19998.
14)Mark D is the Receipt dated 15.04.1998.
6. DEFENDANT EVIDENCE A. Defendant in order to prove himself case has examined only one witness i.e. himself. He has tendered his evidence by way of affidavit Ex. DW1/A which bears his signatures at point A and B. He has also relied upon the following doucments:
1) Ex. DW1/1 is Aadhar Card.
2) Ex. DW1/2 to Ex. DW1/7 are GPA, Agreement to Sell, Will, Possession Letter, Affidavit and Receipt respectively.
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7. ESSENTIAL INGREDIENTS TO DECIDE THE ISSUES IN THE PRESENT CASE Both the parties are relying upon GPA, Agreement to Sell, Affidavit, to show their ownership on the suit property. These documents being unregistered and unstamped documents cannot transfer title in an immovable property as per Section 54 of the Transfer of Property Act, 1882.
Section 54 of the Transfer of Property Act defines sale of an immovable property and reads as under:"Sale" defined "Sale" is a transfer of ownership in exchange for a price paid or promised or partpaid and partpromised. Sale how made - Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upward or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale - A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.
Thus, in view of provisions contained in Section 54 of the Transfer of Property Act, which clearly provide that title in an immovable property value of which is Rs.100/- or upwards can be transferred only by a registered document. The documents Mark A-Mark D on the basis of which plaintiff is claiming ownership over the suit property being unregistered and unstamped documents cannot be said to be a valid sale transfer documents and the suit property cannot be said to be legally transferred/sold by virtue of these documents.
Furthermore, the Hon'ble Supreme Court in its judgment in Suraj Lamp & Industries (P) Ltd. vs. State of Haryana has declared that an immovable property can CS No. 35489/16 Bilttu Yadav Vs. Horil Yadav Page No. 6 of 12 Dated: 09.12.2022 be transferred/conveyed only by deed of conveyance/sale deed duly stamped and registered as required by law and by no other means. The relevant paras of the said judgment are reproduced herein under:- Scope of Power of Attorney
13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of any agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section1A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee."
This position is time and again is reiterated in various judgments. In the case of Joginder Kumar Goyal vs Government Of Nct Of Delhi & Ors. on 17 May, 2016 passed by Hon'ble Delhi High Court as well it was stated, "We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of GPA sales or SA/GPA/WILL transfers do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53A of the Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA Sales."
CS No. 35489/16 Bilttu Yadav Vs. Horil Yadav Page No. 7 of 12 Dated: 09.12.2022 However, as far as possession right is concerned , it was explained in the case of Shri O.P. Aggarwal & Anr. vs Shri Akshay Lal & Ors. on 15 March, 2012 passed by Hon'ble Delhi High Court. No doubt, documents such as Agreement to Sell, Power of Attorney, Will etc do not strictly confer ownership rights as a sale deed, however, such documents create certain rights in an immovable property, though which are strictly not ownership rights but definitely the same can be construed as entitling the persons who have such documents to claim possession of the suit property inasmuch as at least the right to the suit property would stand transferred to the person in whose favour such documents have been executed. Hence, it is very clear that merely on the basis of the documents presented by the parties, they cannot claim a title over the suit property.
8. ISSUE WISE ANALYSIS - Both the issues are being taken up together as the same are interconnected and the discussion thereupon is going to be common. Burden to prove these issues has been placed upon the plaintiff. In the present case both the parties are related and claiming that they have purchased the suit property from one Sh. Tara Chand. The plaintiff claims himself as the owner of 33 sq. Yards and the defendant is the owner of 66 sq yards which includes the suit property. In para 1 of the plaint, it is sated that plaintiff is in possession and residing on the suit property. It is not stated that he is residing an an owner on the same. Further in pra 2 it is stated that plaintiff purchased the suit property from his funds but it is not stated in whose name was the suit property purchased. Both the parties claim that they have purchased the suit property through GPA and Agreement to sale. While plaintiff claims that he is not in the possession of the original documents as they were given to the defendant and defendant never returned them.
• Documents of the plaintiff: Plaintiff is relying upon GPA, Agreement to sale and receipt. There is no possession slip filed by the plaintiff in his documents. On the GPA, photograph of the plaintiff is CS No. 35489/16 Bilttu Yadav Vs. Horil Yadav Page No. 8 of 12 Dated: 09.12.2022 not affixed. Photograph of only Sh. Tara Chand. is affixed. Further, it only bears one signature in urdu. It is not the averment of the plaintiff that its his signature. Further, neither in the plaint nor in the evidence affidavit, it is stated by the plaintiff at which place, this document bears the signatures of the plaintiff. Agreement to sale is dated 11.04.1998, however, it does not bear any signature of the plaintiff. Since, there is no possession slip in the documents of the plaintiff, it is derived that the plaintiff never got the possession of the suit property from the previous owner. Further, other than these documents, plaintiff has filed two photographs to show that he is in the possession of the suit property. One photograph is outside the house and the other is of electricity meter. Plaintiff is not able to prove his possession by either as a photo of electricity meter does not show his name. No independent witness is examined by the plaintiff to prove the execution of the documents. Even though the plaintiff is not in possession of the original, he has filed the copy of the same on the record. Neither the attesting witness not the notary is examined. These witness, otherwise are not mandatory to prove these documnets but given the circumstances in the present case, it becomes relevant, as it may give some support to the case of the plaintiff. • Documents of the defendant: Defendant is relying upon GPA, Agreement to sale and receipt and possession slip. None of the documents of the plaintiff bears any date of execution. The stamp of notary also does not bear any date. The defendant has filed a possession slip however it is not clear on which date the defendant came into the possession of the suit property. GPA filed by the defendant bears an endorsement that documents were presented by the surety on 24.05.2019. This shows that it was the document of the CS No. 35489/16 Bilttu Yadav Vs. Horil Yadav Page No. 9 of 12 Dated: 09.12.2022 defendant that was given in the surety before the court. Defendant has also not got examined any witness to the execution of the aforesaid documents. Considering the receipt and the examination there is a difference in the amount paid for the suit property. During cross examination, defendant stated that On 15.04.1998 I had purchased the suit property for a consideration of Rs.33,000/-. It is wrong to suggest that I had filed a forged receipt of Rs.17,000/- regarding the execution of the documents (Vol. I am uneducated. I had paid a sum of Rs.33,000/- against the said sale consideration, but a receipt of Rs.17,000/- was issued to me). One person namely, Naseem appeared as a witness, when I purchased the alleged suit property. The said person is not examined by the defendant. In this situation, defendant has not proved the date on which the property was purchased or the execution of the documents as well. Further, it the difference in payment of the amount is not sufficient to prove that the receipt is forged and fabricated.
• Possession of the plaintiff: It is the averment of the plaintiff that he is in the possession of the suit property since he purchased it. As per the documents filed by the plaintiff, the property was allegedly purchased in the year 1998. Hence, considering the averments of the plaintiff, he is in the possession for more than 10 years, still no document bearing the address of the suit property is placed of record which indicates that plaintiff is in possession of the same. • Possession of the defendant: It is the averment of the defendant that suit property is a vacant plot and not in the possession of the plaintiff. Defendant in his cross examination stated that he had not filed any photograph or documentary proof pertaining to the alleged aforesaid statement that the suit property is lying vacant. Witness admitted in CS No. 35489/16 Bilttu Yadav Vs. Horil Yadav Page No. 10 of 12 Dated: 09.12.2022 the cross examination that he does not have any documentary proof such as Ration Card, Aadhaar Card, PAN Card, Electric Bill and Water Bill, pertaining to the said property.
• Circumstance as to why the plaintiff is not in the possession of original documents: Plaintiff states that he handed over the original documents to the defendant for giving a surety against the bail. No clear details of said case are given. It is not clear who stood surety for whom. No witness from the said court is examined to prove that the documents were given as a surety. The circumstances showing absence of original documents are not explained to clear the doubts regarding existence of the same. GPA filed by the defendant bears an endorsement that documents were presented by the surety on 24.05.2019. This shows that it was the document of the defendant that was given in the surety before the court. This creates a further doubt in the story of the plaintiff. Cross examination of the defendant shows that no questions are put to the defendant regarding the case in which the original document were handed over by the plaintiff to him. No questions are asked as to when, why and for which case the documents were given.
9. ISSUE WISE FINDINGS
1) Whether plaintiff is entitled for a decree of permanent injunction thereby restraining the defendant, his LRs, successors, relatives, servants etc. from trespassing, creating hindrance, any kind of 3 party interest and dispossessing the plaintiff from the suit property ? OPP.
Burden of proof to prove the said issue was on the plaintiff. Documents filed by both the parties, do not confer any title on them respectively. As discussed above, plaintiff is not able to prove his possession on the suit CS No. 35489/16 Bilttu Yadav Vs. Horil Yadav Page No. 11 of 12 Dated: 09.12.2022 property. The burden upon the plaintiff is not discharged. Hence, issue is decreed against the plaintiff.
2) Whether plaintiff is entitled for a decree of mandatory injunction thereby restraining the defendant from creating any kind of documents le GPA, Sale Deed, Will, Mutation, construction etc in the above said suit property? OPP. The burden of proof to prove this issue was on the plaintiff. Plaintiff is not able to prove the circumstances in which his documents were executed. Further plaintiff is not able to prove that he gave the original documents to the defendant. Further, the issue also stands infrouctous, since the defendant has filed his documents i.e. GPA, Sale Deed claiming ownership over the suit property.
10.FINAL ORDER Both the parties have not been able to show their possession on the suit property. Even if the court considered the issue of title on the basis of better title, the documents furnished by the plaintiff and the defendant as well possess too many infirmities which are already discussed above. However, the burden to prove the possession, title and the facts that original documents of the property were given to the defendant is upon the plaintiff. Considering the averments and evidence led by both the parties the petitioner has not discharged this burden. Hence, the suit stands dismissed.
Announced in the open (Niharika Kumar Sharma)
court 09th December 2022 ACJ/CCJ/ARC/North
Rohini Court/Delhi
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