Delhi District Court
Sh. Uma Shankar vs Ashok & Ors ( Suit on 5 January, 2018
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE (NE)
KARKARDOOMA COURTS, DELHI
Civil Suits No. 476189/15 & 476271/15
CS No. 476189/15
IN THE MATTER OF :
Sh. Uma Shankar
S/o Sh. Fakir Chand Sharma
R/o C279, Gali No. 9,
New Usmanpur, Delhi110053
......Plaintiff
V E R S U S
1. Ashok @ Amar Singh
S/o Sh. Raghuveer Singh
R/o F28, Gali No. 1,
Naya Gaon, New Usmanpur,
Delhi110053
2. Brij Nandan
S/o Sh. Sukh Lal
R/o A349/608, Gali No. 14,
Sonia Vihar, Delhi110094
3. Arvind @ Vijay
S/o Sh. Budh Pal,
R/o A349/608, Gali No. 14,
Sonia Vihar, Delhi110094
CS Nos. 476189/15 & 476271/15 page 1 of 31
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
4. Anand Jain
S/o Sh. I. S. Jain
R/o A349/608, Gali No. 14,
Sonia Vihar, Delhi110094
5. Akhilesh Kumar
S/o Late Sh. Prabha Chand
R/o A608, PartIV, Sonia Vihar,
Gali No. 14 & 15, Delhi110094
..... Defendants
Date of Institution of suit :15.11.2008
Arguments heard on :22.12.2017
Date of Judgment/Order :05.01.2018
Decision : Suit is dismissed.
CS No. 476271/15
IN THE MATTER OF :
Sh. Brij Nandan
S/o Sh. Sukh Lal
R/o C212, Gali No. 5,
C Block, Sai Nagar,
Meetha Pur, Badarpur, Delhi
( Counter Claimant/ defendant No. 2)
V E R S U S
Sh. Uma Shankar
S/o Sh. Fakeer Chand Sharma
R/o C279, Gali No. 9,
New Usman Pur, Delhi53.
( Respondent herein/ plaintiff)
Arguments heard on : 22.12.2017. Date of Judgment/Order : 05.01.2018 Decision :Suit is decreed. CS Nos. 476189/15 & 476271/15 page 2 of 31
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
J U D G M E N T
1. By this common judgment, following two suits i.e: (I) CS No. 476189/15 titled Uma Shankar V/s Ashok & Ors ( suit filed on 15.11.2008) and (II) CS No. 476271/15 titled Brij Nandan V/s Uma Shankar ( counter claim ) are disposed off.
2. The suit No. 476189/15 has been filed by plaintiff Sh. Uma Shankar against the defendants praying for decree of possession, permanent injunction, declaration and mesne profits in respect of property No. A 349/609, situated in gali No. 14, Sonia Vihar, Delhi94 as shown in the site Plan ( hereinafter called the suit property).
The other suit No. 476271/15 / counter claim has been filed by Sh. Brij Nandan ( defendant No. 2 in suit No. 476189/15 ) against Sh. Uma Shankar i.e. plaintiff in the first suit praying for decree of declaration of documents i.e. GPA, agreement to sell, will, indemnity bond, possession letter, receipt and affidavit in respect of property No. A608 as null and void and for permanent injunction for restraining the defendants, agents, attorneys, associates etc from transferring, alienating or creating any third party interest therein.
Brief facts for filing of the suits:
3. Suit No. 476189/15 titled Uma Shankar V/s Ashok & Ors. has been filed by the plaintiff Sh. Uma Shankar for possession, injunction, declaration and mesne profits against defendants claiming that on 09.07.2008, the bayana agreement in respect of property bearing No. A 349/609, Gali No. 14, Sonia Vihar, Delhi94 for purchasing was entered CS Nos. 476189/15 & 476271/15 page 3 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
with defendant No. 1 and 2 and on 22.07.2008, the documents i.e. agreement to sell, GPA, will, affidavit, receipt and possession letter attested by notary public were executed in respect of the suit property and possession was handed over. In the bayana agreement, the number of the property has been mentioned as 349/608 instead of 349/609 and therefore the plaintiff lodged FIR No. 239/08 which is still under investigation and as the plaintiff was dispossessed from the suit property, this suit is filed by plaintiff against the defendants.
The defendant No. 2 in the WS denied the averments of the plaintiff in the plaint contending that the plaintiff has no locus standi to file this suit and had no right, title or interest in the suit property. The defendant No. 2 claimed to be the owner of property No. A608 admeasuring 50 Sq. yards and he sold the said property to one Harish Kumar vide sale documents and also handed over the possession. The defendant No. 2 has no concerned with the property No. 609 and this suit has been filed on the basis of forged and fabricated documents dt. 09.07.2008 and 22.07.2008. As contended, the suit of plaintiff is filed without any cause of action and is not maintainable ; same is barred for none joinder and mis joinder of necessary parties. While denying rest of the material contentions of the plaintiff in the plaint, defendant prayed to dismiss the suit with cost.
WS was also filed by subsequently impleaded defendant No. 5 who claimed to be owner in possession of suit property since May, 2008 and plaintiff has no right, title or interest in the suit property.
4. Counter Claim was also filed by Sh. Brij Nandan against Sh. Uma Shankar praying for declaration of the documents dt. 22.07.2008 as null and CS Nos. 476189/15 & 476271/15 page 4 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
void and for permanent injunction for restraining the defendants, agents etc from creating any third party interest on the basis of those documents.
5. Vide orders dated 03.06.2015, following issues were framed in suit No. 476189/15 and 476271/15: Issue in the suit No. 476189/15 :
(i) Whether the defendant No. 2 Sh. Brij Nandan was the joint owner of the suit property and plaintiff has no right, title or interest in the same? OPD2
(ii) Whether the plaintiff has concealed the material facts and if so, its consequences? OPD2
(iii) Whether the suit is bad for non joinder of necessary parties i.e. Sh. Harish Kumar who allegedly purchased the suit property from defendant No. 2 or it is bad for mis joinder of the parties? OPD2
(iv) Whether the valuation of the suit for the purpose of court fee and jurisdiction is not correct? OPD2
(v) Whether the property No. A349/609 and A349/608 are one and the same properties or are distinct properties? OPD2
(vi) Whether the plaintiff is entitled for a decree of possession/ mandatory injunction as prayed for? OPP
(vii) Whether the plaintiff is entitled for recovery of damages of Rs. 6,35,000/ as claimed? OPP
(viii) Whether the plaintiff is entitled for a decree of declaration, as prayed for? OPP CS Nos. 476189/15 & 476271/15 page 5 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
(ix) Whether the plaintiff is entitled to a decree of
permanent injunction as prayed for ? OPP
(x) Relief.
Vide order dt. 16.02.2017, following additional issue were framed i.e.: 5A Whether defendant No. 5 is the rightful owner of the suit property and is in possession since May, 2008? OPD5. Issue in suit No. 476271/15( Counter Claim):
(i) Whether the suit is bad for non joinder of necessary parties i.e. Harish Kumar the alleged purchaser of the suit property? OPD
(ii) Whether the counter claim of the plaintiff Brij Nandan is not maintainable in view of his contradictory stand taken in case No. 16/08 ? OPD
(iii) Whether the value of the counter claim for the purpose of court fee and jurisdiction is improper? ( OPD)
(iv) Whether the plaintiff Brij Nandan is entitled for a decree of declaration, as prayed for ? OPP
(v) Whether the plaintiff Brij Nandan is entitled to a decree of permanent injunction as prayed for ? OPP
(vi) Relief.
6. Vide order dt. 03.06.2015, both the matter were clubbed for the purpose of decision.
Evidence:
7. Plaintiff Sh. Uma Shankar filed his affidavit by way of evidence Ex.
CS Nos. 476189/15 & 476271/15 page 6 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
PW 1/ A and examined himself as PW1. Witness has relied upon the documents as mentioned in affidavit.
Plaintiff examined the witness i.e. Sh. Tulsi Ram as PW2 by way of affidavit Ex PW 2/A. Witness has relied upon the documents as mentioned in the affidavit.
Plaintiff examined the witness i.e. Smt. Indu Devi as PW3 by way of affidavit Ex. PW 3/ A. Plaintiff summoned and examined the witness i.e. Rajesh Rajput, Ahlmad in the court of Sh. Sharad Gupta, ACMM, North East, KKD Courts, Delhi as PW4 appeared with the case file titled as State V/s Brijnandan, FIR No. 239/08, PS Khajoori Khas. The original documents are lying in it. Witness stated that he has compared the same with the copies of mark A and mark B, same are correct according to the originals. The original documents were seized by the IO in this criminal case.
As no other witness remained to be examined on behalf of plaintiffs, the PE was thereafter closed and case was fixed for defendant's evidence.
8. Defendant No. 2 examined himself as DW1 by way of affidavit Ex. DW 1/A. Defendant No. 5 examined himself as DW5 by way of affidavit Ex. DW 5/1. The witness has relied upon the documents i.e. copy of GPA dated 16.01.2009 Ex.DW5/A OSR (Colly 2 pages), copy of agreement to sell dated 16.01.2009 Ex.DW5/B OSR (Colly 2 pages), copy of affidavit dated 16.01.2009 Ex.DW5/C OSR (Colly 2 pages), copy of receipt dated 16.01.2009 Ex.DW5/D (OSR), copy of Will dated 16.01.2009 Ex.DW5/E OSR (Colly 2 pages), copy of GPA dated 09.01.2009 Ex.DW5/F OSR CS Nos. 476189/15 & 476271/15 page 7 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
(Colly 3 pages), copy of Agreement to Sell dated 09.01.2009 Ex.DW5/G OSR (Colly 3 pages), copy of Affidavit dated 16.01.2009 Ex.DW5/H OSR (Colly 2 pages), copy of Possession Letter dated 20.04.2008 Ex.DW5/I (OSR), copy of receipt dated 20.04.2008 Ex.DW5/J (OSR), copy of sub registrar two receipts dated 31.07.2008 Ex.DW5/K (OSR) (Colly 2 receipts), copy of complaint dated 31.07.2008 Ex.DW5/L (OSR), copy of refund order dated 27.07.2009 MarkA (Colly 3 pages), copy of electricity bill dated 03.11.2014 Ex.DW5/M (OSR), copy of demand notice of BSES dated 16.03.2009 Ex.DW5/N (OSR), copy of marksheet of Master Tannu Jain of year 20092010 of RC, Memorial Public School, Sonia Vihar, Delhi Ex.DW5/O (OSR) (Colly 2 pages). The DE was thereafter closed.
9. I have heard Ld. Counsel for the plaintiff and ld. Counsel for defendant No. 2 and 5 and gone through the material on records. I have also gone through the written arguments filed on behalf of defendant No. 5. My findings on the above said issues are as follows: Issue in the suit No. 476189/15 :
(ii) Whether the plaintiff has concealed the material facts and if so, its consequences? OPD2
(iii) Whether the suit is bad for non joinder of necessary parties i.e. Sh. Harish Kumar who allegedly purchased the suit property from defendant No. 2 or it is bad for mis joinder of the parties? OPD2
(iv) Whether the valuation of the suit for the purpose of court fee and jurisdiction is not correct? OPD2
(v) Whether the property No. A349/609 and A349/608 CS Nos. 476189/15 & 476271/15 page 8 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
are one and the same properties or are distinct properties? OPD2 Issue in suit No. 476271/15( Counter Claim):
(i) Whether the suit is bad for non joinder of necessary parties i.e. Harish Kumar the alleged purchaser of the suit property? OPD
(ii) Whether the counter claim of the plaintiff Brij Nandan is not maintainable in view of his contradictory stand taken in case No. 16/08 ? OPD
(iii) Whether the value of the counter claim for the purpose of court fee and jurisdiction is improper? ( OPD)
10. The onus to prove these issues remained on the respective parties as per their averments in the pleadings. It is reiterated that no evidence was led by the parties in support of their contentions nor any material was produced to prove these issues. Further the plaintiff did not produce any documents on record nor depose anything regarding the counter claim being not maintainable or bad for mis joinder or regarding its valuation. The issue No. II to V in suit No. 476189/15 is decided in favour of plaintiff and against the defendants whereas issue No. I to III in suit No. 476271/15( counter claim) is decided in favour of counter claimant and against the plaintiff. Issue in the suit No. 476189/15 :
(i) Whether the defendant No. 2 Sh. Brij Nandan was the joint owner of the suit property and plaintiff has no right, title or interest in the same? OPD2 (5A) Whether defendant No. 5 is the rightful owner of the CS Nos. 476189/15 & 476271/15 page 9 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
suit property and is in possession since May, 2008? OPD5.
(vi) Whether the plaintiff is entitled for a decree of possession/ mandatory injunction as prayed for? OPP
(vii) Whether the plaintiff is entitled for recovery of damages of Rs. 6,35,000/ as claimed? OPP
(viii) Whether the plaintiff is entitled for a decree of declaration, as prayed for? OPP
(ix) Whether the plaintiff is entitled to a decree of permanent injunction as prayed for ? OPP
(x) Relief.
Issue in suit No. 476271/15( Counter Claim): (IV) Whether the plaintiff Brij Nandan is entitled for a decree of declaration, as prayed for ? OPP
(v) Whether the plaintiff Brij Nandan is entitled to a decree of permanent injunction as prayed for ? OPP
(vi) Relief.
11. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit, this suit is to be decided on the basis of preponderance of probabilities. As held in Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, "A civil case is decided on balance of probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to CS Nos. 476189/15 & 476271/15 page 10 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
12. Section 101 of the Evidence Act, 1872 defines " burden of proof"
and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree CS Nos. 476189/15 & 476271/15 page 11 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn.
13. The brief and relevant facts for filing of this suit alongwith the defence of the defendants has been mentioned at the outset. As all these issues are interrelated, these issues are examined and decided together. The plaintiff claimed himself the owner of the suit property i.e. A349/609, Gali No. 14, Sonia Vihar, Delhi94 and claimed to have purchased from defendant No. 1 and 2. The ownership of the defendant is accordingly admitted. The plaintiff has relied upon the documents i.e. site plan Ex PW 1/A which is filed in respect of property No. A349/608 which is other property. The suit property is also not referred in the bayana agreement dt. 09.07.2008 which is mark A relied by the plaintiff in support of the claim. The plaintiff further relied upon the agreement to sale, GPA, will, affidavit, receipt, possession letter and indemnity bond which are mark B and all of these documents are notarized which are in respect of suit property as claimed. There is no documents on record either produced or proved by the plaintiff to show that the possession of the suit property was handed over ever to the plaintiff or he remained in possession of the same; he was forcefully evicted from the suit property. The testimonies of PW2 and 3 examined by plaintiff also do not support his case regarding the purchase or possession of the suit property in view of the contradiction in their CS Nos. 476189/15 & 476271/15 page 12 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
testimony. During cross examination, the testimony of PWs appears to be totally shattered in respect of the property. All these documents relied by the plaintiff are unregistered and the PWs are not sure even regarding the identification or the number of the property alongwith its ownership.
It is reiterated that plaintiff is under obligation to prove the right, title or interest in the suit property for the grant of relief as prayed in the suit. Even if the contentions of the plaintiff is considered, the plaintiff cannot be considered to be the owner of the suit property on the basis of the documents mark A and B only ie. GPA, agreement to sell, will, etc which all are merely notarized/ unregistered.
14. The plaintiff is claiming his right, title or interest in the suit property on the basis of documents mark A and B. None of the documents are registered. By virtue of these documents only, plaintiff by no stretch of imagination can be considered to be the owner of the suit property having right, title or interest in respect of the same. The plaintiff during cross examination admitted that he never resided in the suit property nor the possession of the plaintiff is proved by any cogent evidence. By virtue of these documents i.e. mark A and mark B only, the plaintiff by no stretch of imagination can be considered to be the owner of the suit property having right, title or interest in respect of the same. The claim of the plaintiff accordingly regarding ownership appears to be without any ground.
15. It appears that the main issue to be adjudicated remained as to whether the plaintiff has become the owner of the suit property ? on the basis of the documents relied by the plaintiff. It is appropriate and relevant to note the relevant legal provisions and authorities for proper examination CS Nos. 476189/15 & 476271/15 page 13 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
and adjudication of the issues.
Section 5 of the Transfer of Property Act, 1882 ( ' TP Act' for short) defines ' transfer of property' as under: " 5. Transfer of Property defined: In the following sections " transfer of property " means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself 9 for to himself) and one or more other living persons; and " to transfer property" is to perform such act." XXX XXX Further Section 54 of the TP Act defines ' sales' thus :
" 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 upwards, 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 CS Nos. 476189/15 & 476271/15 page 14 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
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."
Section 53 A of the TP Act defines ' part performance ' thus :
" Part Performance. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
And the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and had done some act in furtherance of the contract.
And the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor b the CS Nos. 476189/15 & 476271/15 page 15 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
Section 17 of the Indian Registration Act, 1908: " 17. Documents of which registration is compulsory. (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866 ( 20 of 1866), or the Indian Registration Act, 1871 ( 8 of 1871), or the Indian Registration Act, 1877 ( 3 of 1877), or this Act came or comes into force, namely
(a) Instrument of gift of immovable property;
(b) other nontestamentary instruments which purport or operate to create, declare, assign, limit CS Nos. 476189/15 & 476271/15 page 16 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
or extinguish , whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
16. It is settled law that title of immovable property above the value of Rs. 100/ can only be transferred by way of a registered instrument as prescribed Under Section 17 of the Indian Registration Act, 1908 and by way of documents of sale as recognized under Section 54 of the Transfer of the Property Act. As held in AIR 1969, SC 1316, the documents of which registration is necessary under the transfer of Property Act ( such as under
Section 54 of the TP Act) but not under the Registration Act fall within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction of acting any immovable property comprise therein and do not affect any such immovable property.
17. As held in 128 (2006) DLT 407 (DB) titled M. L. Aggarwal Vs. Oriental Bank of Commerce & Ors, : " The petitioner has only produced an agreement to sell, will and a power of attorney and a receipt for payment of money but these in our opinion do not constitute a sale. Under Section 17 (1) (b) of the Registration Act, Sale of an immovable property can only be by a registered deed. In our opinion, the petitioner has no right, title or interest in the suit property as he has not purchased it by any registered sale deed. An immovable property cannot be purchased by a mere power of attorney or agreement to sell."
The ratio was further reiterated by Hon'ble Delhi High Court in AIR 2003, Delhi 120 titled G. Ram Vs. DDA wherein it is mentioned that CS Nos. 476189/15 & 476271/15 page 17 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
transfer of immovable property can only be affected by executing a registered documents. Merely making an agreement of sale or execution of power of attorney could not transfer right, title or interest of any immovable property.
18. This court is guided in view of the judgment of Hon'ble Supreme Court in Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, reported as 183 (2011) DLT 1 (SC) . As held, the document of title i.e. GPA, Agreement to Sell, Will and receipt would not confer ownership rights in respect of immovable property in his favour. Hon'ble Supreme court vide order dt. 15.05.09 reported as Suraj Lamps & Industries V/s State of Haryana, 2009(7) SCC (366) referred illaffects of GPA sells or sell agreement/ GPA/ will transfer holding that there cannot be sell by execution of power of attorney nor there can be transfer by execution on agreement to sell and power of attorney and will.
It is relevant and necessary to reproduce relevant paras of judgment of Hon'ble Supreme Court in Suraj Lamps ( supra) reported as Manu/SC/1222/2011 which read as under: Scope of an Agreement of Sell:
11. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas V. S. A. Kamtam and Anr. (1977) 3 SCC 247, observed: "A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of CS Nos. 476189/15 & 476271/15 page 18 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
Property Act. See Rambaran Prasad Vs. Ram Mohit Hazra ( 1967) 1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognized in Section 3 of the Specific Relief Act, contract for sale is recognized in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein."
In India the word ' transfer' is defined with reference to the word ' convey'. The word ' conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership........ ....... that only on execution of conveyance ownership passes from one party to another ..........."
In Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra (2004) (8) SCC 614, this court held: " Protection provided under Section 53 of the Act to the proposal transferee is a shield only against the transferor. It disentitles the tranferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to CS Nos. 476189/15 & 476271/15 page 19 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party"
It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance ( sale deed). In the absence of a deed of conveyance ( duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
12. Any contract of sale( agreement to sell) which is not a registered deed of conveyance ( deed of sale) would fall short of the requirements of Section 54 and 55 of Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property ( except to the limited right granted under Section 53A of Transfer of Property Act). According to Transfer of Property Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of Transfer of Property Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject CS Nos. 476189/15 & 476271/15 page 20 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
matter.
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 an 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 section 1A 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. In state of Rajasthan v. Basant Nehata MANU/SC/0547/2005 :
MANU/SC/0547/2005 : 2005 (12) SCC 77 this court held :
A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the Principal in favor of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document CS Nos. 476189/15 & 476271/15 page 21 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers ofAttorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the done to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The done in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.
An Attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of grantor.
Scope of Will
14. A will is the testament of the testator.
It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivo. The two essential characteristics of a will are that it is CS Nos. 476189/15 & 476271/15 page 22 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator.
It is said that so long as the testator is alive, a will is not be worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. ( see Sections 69 and 70 of Indian Succession Act, 1925). Registration of a will does not make it any more effective.
We therefore reiterate that immovable property can be legally and lawfully transferred/ conveyed only by a registered deed of conveyance. Transaction 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 immovable property. The courts will not treat such transaction 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 CS Nos. 476189/15 & 476271/15 page 23 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transaction known as GPA sales.
19. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Hon'ble Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance ( para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872( para 13) and devolution of interest pursuant to a will( para 14).The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney.
Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will.
20. Section 27 of Indian Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an obligation to set forth in the instrument all facts and circumstances which affects the chargeability of duty on that instrument.
CS Nos. 476189/15 & 476271/15 page 24 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
Section 17 of the Registration Act, 1908 makes deed of conveyance compulsorily registrable. The transfer of an immovable property can only be by a deed of conveyance and in the absence of a deed of conveyance ( duly stamped and registered as required by law), no right, title or interest in an immovable property can be transfered. With regard to the legal validity of such documents i.e. agreement to sell, GPA, Will and receipt, the Hon'ble Supreme Court in the case of Suraj Lamps and Industries Pvt. Ltd. Vs. State of Haryana reported in AIR 2009 SC 3077 has held that such documents cannot create any right in respect of immovable property. The only way a contract of sale can create title to immovable property is by way of a deed of conveyance as defined under Section 54 of the Transfer of Property Act and registered in pursuance of the provisions of Section 17 of The Registration Act, 1908. No such documents has been executed in favour of plaintiff.
21. I have gone through the judgment reported as AIR 1969 SC 1316 titled Raghunath & Ors. V/s Kedarnath. In view of the ratio, the unregistered document shall not be received in evidence of any transaction covered by the registered documents. As further held by Hon'ble Delhi High Court in Jagdambey Builders Private Limited V/s J.S. Vohra reported as MANU/DE/0310/2016 , a mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. The court relying upon the judgment in Jiwan Das V/s Narain Das reported as MANU/DE/0188/1981 held that in fact no rights enure to the agreement purchaser, not even after passing of a decree for specific performance and till conveyance in accordance with law and in pursuance CS Nos. 476189/15 & 476271/15 page 25 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
thereto is executed. The person has no right to remain in occupation of the premises or retain possession of the premises merely because of the agreement to sale in his favour.
22. As discussed, plaintiff cannot be considered as owner on the basis of the documents mark A and B. Neither Section 53 A of the Transfer of Property Act, 1882 nor Section 202 of the Contract Act, 1872 is applicable for ownership of plaintiff and the law laid down the Hon'ble Supreme Court in SLP (C) No. 13917 of 2009 titled as Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana & Ors. is squarely applicable in the facts of this case. Even if these documents relied by the plaintiff were executed in his favour, the same would not create any title in his favour and the plaintiff is not the owner of the suit property. Since there is no registered sale deed executed in favour of the plaintiff in respect of the suit property in accordance with provisions of Transfer of Property Act, 1882, the plaintiff is not the owner of the suit premises.
23. I have gone through the section 17(1 A) of the registration Act, 1988 which is amended with effect from 24.09.01. It is reproduced herein for reference: (1A) The documents containing contracts to transfer for consideration any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed or or after the commecement of the Registration and other Related laws ( amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, CS Nos. 476189/15 & 476271/15 page 26 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
they shall have no effect for the purposes of the said section 53A} The contentions of plaintiff regarding the possession in view of the part performance of the agreement to sell have no merits. This court is further guided by judgment of Hon'ble Delhi High Court reported as 222 (2015) DLT 285 titled as Yashvir Singh Tomar V/s Dr. OP Kohli and others in this respect. As held in relevant para No. 4 and 5: " (4) By virtue of the amendment brought about to section 53A of the Transfer of Property Act, 1882 w.e.f. 24.09.2001 by the Act 48 of 2001, an agreement to sell in the nature of part performance cannot create rights unless the agreement is registered and stamped at 90 % of the value of the sale deed as per Article 23 A of the Schedule 1 of the Indian Stamp Act, 1899 as applicable to Delhi which was accordingly amended by the Act 48 of 2001"
" (5) In view of the above, since the Agreement to sell in question is an unregistered and unstamped Agreement to Sell, no rights can be claimed under the same. What cannot be directly done cannot be indirectly done and a power of attorney, merely because it is registered, will not confer rights in the nature of ownership in the property. I may note that in fact a power of attorney which effectively gives ownership right of the suit property by allowing the attorney to sell the immovable property by virtue of Article 48 (f) of the Indian Stamp Act as applicable to Delhi will have to have the same CS Nos. 476189/15 & 476271/15 page 27 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
duty as a conveyance deed as per Article 23 of the Indian Stamp Act for the amount of consideration"
The ratio of the judgment is squarely applicable in the facts and circumstances of this case. Neither Section 53 A of the Transfer of Property Act, 1882 nor Section 202 of the Contract Act, 1872 is applicable for ownership of plaintiff and the law laid down the Hon'ble Supreme Court in SLP (C) No. 13917 of 2009 titled as Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana & Ors. also is squarely applicable in the facts of this case. In view of the aforesaid provisions of law, the claim of the plaintiff regarding possession, injunction, declaration and mesne profits on the basis of unregistered / notarized documents is not sustainable.
24. In view of the aforesaid discussions and findings, it has been proved that the plaintiff has no right, title or interest in respect of the same. The plaintiff cannot be considered to be the owner merely on the basis of unregistered document relied by him. The plaintiff further failed to prove that the possession was handed over as part performance of the agreement to sell and plaintiff was permitted to use the suit property. The plaintiff is therefore not entitled for the relief of possession, injunction, declaration and mesne profits /damages as prayed in the suit.
25. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of "
proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the CS Nos. 476189/15 & 476271/15 page 28 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title.
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this Court the plaintiff has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
26. In view of the aforesaid discussions and referred law, this Court is of the considered view that the plaintiff cannot be considered having right, title or interest in the suit property and the documents mark A and B relied by the plaintiff is neither helpful nor sufficient to prove the claim of the plaintiff in the suit. As the plaintiff failed to prove the ownership and contentions in the plaint, the plaintiff is not entitled for the reliefs of possession, declaration, injunction and mesne profits / damages as prayed in CS Nos. 476189/15 & 476271/15 page 29 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
the suit. The suit of the plaintiff is liable to be dismissed. It is further reiterated that defendant No. 5 is also claiming ownership of the suit property on the basis of unregistered documents like agreement to sell, affidavit, receipt, will etc and therefore the defendant No. 5 also cannot be declared as owner of the suit property. Issue No. VA in suit No. 476189/15 is decided against the defendant No. 5 and issue No. VI to IX in suit No. 476189/15 are decided against the plaintiff.
27. From the records, it is proved that Sh. Brij Nandan was the owner of the suit property. As the plaintiff Uma Shankar has no right, title or interest in the suit property, he cannot be permitted to transfer, alienate or create any third party interest in the suit property. The counter claim of the defendant No. 2 Sh. Brij Nandan is accordingly allowed and the counter claimant in suit No. 476271/15 is entitled for decree of declaration and permanent injunction as prayed for. The documents dt. 22.07.2008 in favour of plaintiff are declared null and void. Issue No. IV and V in suit No. 476271/15( counter claim) is accordingly decided in favour of the counter claimant.
Relief:
28. In view of the aforesaid discussions and findings, this court is of the considered opinion that plaintiff in suit No. 476189/15 has failed to prove his case even on the basis of preponderance of probabilities. The plaintiff is therefore not entitled for any relief as prayed in the suit and the suit of the plaintiff bearing No. 476189/15 is dismissed.
Decree of permanent injunction is passed in favour of the defendant/ counter claimant and against the plaintiff/ respondent in counter claim/ suit CS Nos. 476189/15 & 476271/15 page 30 of 31 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
No. 476271/15. The plaintiff, agents, assigns, associates are restrained from using the alleged documents i.e. GPA, agreement to sell, will, indemnity bond, possession letter, receipt, affidavit etc in respect of property No. A 608, out of Khasra No. 374, Gali No. 1415, PartIV, Sonia Vihar, Delhi and further restrained them from transferring, alienating or creating any third party interest on the basis of alleged documents except without due process of law.
29 Parties to bear their own cost.
30. Copy of this judgment be placed in both the cases bearing CS No. 476189/15 and 476271/15.
31. Decree sheet be drawn accordingly in both the suits.
32. File be consigned to record room after necessary compliance.
Announced in open Court on this 05th day of January, 2018 G. N. Pandey Addl. District Judge (NE) Karkardooma Courts, Delhi CS Nos. 476189/15 & 476271/15 page 31 of 31