Delhi High Court
Pushkar Singh Bisht vs Bhim Singh Bisht on 10 August, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 10th August, 2018
+ RSA 265/2017 & CM No.42187/2017 (for stay)
PUSHKAR SINGH BISHT ..... Appellant
Through: Mr. Triloki Pandit, Adv.
Versus
BHIM SINGH BISHT ..... Respondent
Through: Mr. Rajendra Dutt, Advocate.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Regular Second Appeal under Section 100 of the Code of
Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated
31st January, 2017 in RCA-DJ-5333/2016 of the Court of Additional
District Judge-IV, New Delhi District] of dismissal of the first appeal
under Section 96 of the CPC preferred by the appellant against the
judgment and decree [dated 26th September, 2015 in Suit No.282/2014
(Unique ID No.02401C0097952002) of the Court of Civil Judge-05,
Central District] of dismissal of suit filed by the appellant/plaintiff for
recovery of possession of immovable property and for recovery of
mesne profits.
2. The appeal came first before this Court on 21st November, 2017,
when though without framing any question of law, notice thereof was
ordered to be issued, Trial Court record requisitioned and the parties
directed to maintain status quo qua title and possession of the
property. Though the Suit Court record has not been received and
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only the First Appellate Court record has been received, but the
counsel for the appellant/plaintiff along with the memorandum of
appeal has filed copies of the relevant records of the suit and which
have been perused and during the hearing also no need of any other
Suit Court record has been felt.
3. The appellant/plaintiff instituted the suit, from which this appeal
arises, pleading that (i) the appellant /plaintiff is the sole and absolute
owner of property No.RZ-32/3-D, Gali No.3, Mohan Block, West
Sagarpur, New Delhi, which was purchased by the appellant/plaintiff
from one Ujagar Singh, for valuable consideration and vide sale
document dated 29th March, 1990; (ii) the property comprises of
ground, first and second floors; (iii) the appellant/plaintiff is residing
on the ground floor of the property; (iv) respondent/defendant is the
brother of the appellant/plaintiff and was facing hardship with regard
to residential accommodation and requested the appellant/plaintiff to
allow him to reside for a temporary period on the second floor of the
property and which was allowed by the appellant/plaintiff; (v) the
respondent/defendant illegally occupied one room on the first floor of
the property and inspite of asking of the appellant/plaintiff, has failed
to vacate the property and thus possession of the respondent/defendant
is illegal.
4. The respondent/defendant contested the suit by filing a written
statement, pleading that (i) the parties, along with their father and
other siblings, were residing in a tenanted accommodation; (ii) the
father of the parties was a government employee and from the funds
RSA 265/2017 Page 2 of 11
received on his retirement and with contribution from the
respondent/defendant, purchased the land underneath the property;
(iii) the appellant/plaintiff was not having the financial position to
purchase any immovable property at that time; (iv) the construction on
the property was also made from the funds of the father and the
respondent/defendant; (v) the father of the parties died in an incident
of fire in the property on 1st December, 1995; and, (vi) the
appellant/plaintiff and the respondent/defendant repaired/renovated
the property and started residing therein as co-owners thereof.
5. An ex-parte decree of possession and recovery of mesne profits
in favour of the appellant/plaintiff and against the
respondent/defendant was passed on 13th May, 2013. The counsel for
the appellant/plaintiff informs, that on the respondent/defendant filing
an application under Order IX Rule 13 of the CPC, the said decree was
set aside and the suit proceeded to trial.
6. On the pleadings of the parties, the following issues were
framed in the suit on 22nd January, 2002:
"(i) Whether plaintiff has no cause of action to file the
present suit? OPD
(ii) Whether suit of the plaintiff is not properly valued
for the purpose of Court fees and jurisdiction?
OPD.
(iii) Whether defendant is in illegal and unauthorized
occupation of the property?
RSA 265/2017 Page 3 of 11
(iv) Whether defendant is liable to pay damages for
use and occupation of the property? OPP.
(v) Whether plaintiff is absolute owner in the suit
property? OPP.
(vi) Whether plaintiff is entitled to relief claimed?
OPP.
(vii) Relief."
7. The Suit Court, on the basis of the evidence led by the parties,
dismissed the suit, reasoning that (i) the appellant/plaintiff claimed to
have title to property on the basis of Agreement to Sell, General
Power of Attorney, Affidavit and Receipt; (ii) however, the said
documents do not confer any title to the property as per the dicta of
the Supreme Court in Suraj Lamp and Industries Private Limited Vs.
State of Haryana, 2012 (1) SCC 656; (iii) the appellant/plaintiff had
sought to prove the Agreement to Sell, Power of Attorney, Affidavit
and Receipt by leading secondary evidence; (iv) the copies of the
documents sought to be proved by way of secondary evidence were
also in a burnt condition and the contents thereof could not be read;
(v) the appellant/plaintiff had not deposed as to the contents of the said
documents; (vi) no attesting witnesses to the documents had been
examined; and, (vii) the appellant/plaintiff had thus failed to prove any
title to the property; (vii) moreover, even if it was believed that
Agreement to Sell, Power of Attorney, Affidavit and Receipt with
respect to the property were in the name of the appellant/plaintiff, the
same still did not establish the appellant/plaintiff as owner of the
property. Accordingly, the suit was dismissed.
RSA 265/2017 Page 4 of 11
8. The First Appellate Court, vide the impugned judgment, has
dismissed the appeal affirming the findings of the Suit Court.
9. The first argument of the counsel for the appellant/plaintiff is
that a suit, which had on 13th May, 2013 been allowed, could not on
26th September, 2015 have been dismissed and the Suit Court cannot
render inconsistent findings.
10. The aforesaid argument is to be noted to be rejected. The
counsel for the appellant/plaintiff forgets that the judgment dated 13 th
May, 2013 was an ex-parte judgment and which, according to the
counsel for the appellant/plaintiff also, was set aside. Once the
judgment dated 13th May, 2013 was set aside, no reliance whatsoever
can be placed thereon.
11. The counsel for the appellant/plaintiff, at this stage, states that
the respondent/defendant was earlier appearing in this suit and had
thereafter stopped appearing which led to the ex-parte judgment dated
13th May, 2013.
12. Even then the position would be the same. The
appellant/plaintiff, at the time when the said judgment was set aside,
could have protested thereagainst and after acceding to the judgment
dated 13th May, 2013 being set aside and the suit being ordered, to be
tried afresh, cannot today raise such an argument.
13. The next argument of the counsel for the appellant/plaintiff is
that the appellant/plaintiff had proved the Agreement to Sell, Power of
RSA 265/2017 Page 5 of 11
Attorney, Affidavit and Receipt by secondary evidence and the Courts
below have wrongly held that they have not been so proved.
14. In view of the reasoning given by both the Courts below, the
aforesaid is irrelevant. I have thus asked the counsel for the
appellant/plaintiff, as to how the Agreement to Sell, Power of
Attorney, Affidavit and Receipt constitute valid documents of title.
15. The counsel for the appellant/plaintiff states that the said
documents constituted documents of title, prior to the dicta of the
Supreme Court in Suraj Lamp and Industries Private Limited supra.
Reliance is placed on paras 25 to 27 of Suraj Lamp and Industries
Private Limited supra as reported in SCC, where it has been clarified
that the judgment was not intended to, in any way, affect the validity
of sale agreements and powers of attorney executed in genuine
transactions and would not affect the cases, where the said documents
had been accepted by the DDA or other Developmental or Revenue
Authorities to effect mutation.
16. The aforesaid observation does not mean that such documents
constituted documents of title, prior to the said judgment. Though this
Court in Asha M. Jain Vs. Canara Bank 94 (2001) DLT 841 has held
that owing to a large scale of transfer of the properties through the
medium of Agreement to Sell, Power of Attorney and Will, the
documents may be construed as documents of title but the said
judgment was specially over ruled in Suraj Lamp & Industries
Private Limited supra.
RSA 265/2017 Page 6 of 11
17. It cannot thus by any stretch of imagination be said that
Agreement to Sell, Power of Attorney, Affidavit and Receipt executed
on a date prior to the judgment in Suraj Lamp And Industries Private
Limited supra, were documents of title. All that the observations of the
Supreme Court, to which attention is drawn, says is that the said
documents will not stand invalidated as to their legal effect. However,
at the same time it was declared that the legal effect of the said
documents is not to confer title. The counsel for the appellant/plaintiff
is misconstruing the said observations to confer status of title on the
said documents and which has been declared otherwise by the
Supreme Court.
18. Once, even if the documents are to be read, the
appellant/plaintiff is not found to have title, the need to go into the
question of, whether the documents have been proved by secondary
evidence or not, is not felt.
19. I have recently in Chander Dutt Sharma v. Prem Chand 2018
SCC OnLine Del 9903 held as under with respect to a suit for
possession:-
"20.....
(A) A suit for recovery of possession of immovable
property can be filed either under Section 5 or under Section
6 of the Specific Relief Act, 1963.
(B) A suit under Section 5, can be filed, either (i) on the
basis of prior possession and not on title, when the plaintiff
while in possession of the property has been dispossessed,
under Article 64 of the Schedule to the Limitation Act, 1963,
RSA 265/2017 Page 7 of 11
within twelve years from the date of dispossession; or, (ii)
based on title, under Article 65 of the Schedule to the
Limitation Act, within twelve year from the date when the
possession of the defendant becomes adverse to the plaintiff.
(C) A suit under Section 6, can be filed if any person is
dispossessed from immovable property without his consent,
otherwise than in due process of law, but within six months of
the date of dispossession.
.....
(E) A mere possession of immovable property, even if
accompanied with GPA, Agreement to Sell, Affidavit etc.,
does not constitute title to the immovable property.
Reference, if any required in this regard can be made to the
dicta of the Supreme Court in Suraj Lamp & Industries Pvt.
Ltd. Vs. State of Haryana (2009) 7 SCC 363 and (2012) 1
SCC 656 setting aside the dicta of the Division Bench of this
Court in Asha M Jain Vs. Canara Bank (2001) 94 DLT 841.
(F) The appellant/plaintiff, claiming only GPA, Agreement
to Sell, Affidavit etc. from respondents No.4&5 in his favour,
thus had / has no title to the property.
(G) An agreement purchaser, has no right, title, interest in
immovable property and has only a right to seek specific
performance of such agreement. Reference if any required
can be made to (i) Jiwan Dass Rawal Vs. Narain Dass AIR
1981 Del 291; (ii) Deewan Arora Vs. Tara Devi Sen (2009)
163 DLT 520; (iii) Sunil Kapoor Vs. Himmat Singh (2010)
167 DLT 806; and, (iv) Samarjeet Chakravarty Vs. Tej
Properties Private Limited 2014 SCC OnLine Del 3809.
.....
(I) Though the appellant/plaintiff, under Section 5, had a
choice to sue either on the basis of prior possession or on the
basis of title but the appellant/plaintiff, inspite of having no
title to the property, filed the suit by drafting the plaint not on
RSA 265/2017 Page 8 of 11
the basis of prior possession but on the basis of title. The
appellant/plaintiff, throughout the plaint has described
himself as purchaser of the property from respondents
No.4&5. Owing thereto only, issue also framed in the suit
was qua ownership of appellant/plaintiff and not qua
possession of the appellant/plaintiff. Rather, the counsel for
the appellant/plaintiff today also, upon it being put to him as
to why the appellant/plaintiff did not sue for specific
performance of the Agreement to Sell, states that there was/is
no need to sue for specific performance since the
appellant/plaintiff was already owner in possession of the
immovable property.
(J) Owing to the appellant/plaintiff having sued on the
basis of title which the appellant/plaintiff did not possess,
and not on the basis of prior possession, Issue No.1 got
framed in the suit, was decided against the
appellant/plaintiff.
(K) Though issues are to be framed by the Court but with
the assistance of the counsels. If the appellant/plaintiff had
sued for possession on the basis of prior possession and the
Court had wrongly framed the issue treating the suit as on
the basis of title, it was incumbent upon the
appellant/plaintiff to apply for amendment of issues and
which was not done by appellant/plaintiff.
(L) However, even if the appellant/plaintiff is treated as
having sued for possession on the basis of prior possession
and even if non seeking of an issue qua prior possession is
ignored, the recovery of possession was sought not from
respondents No.4&5 but from respondents No.1 to 3 and
their mother Bhagwati and it was against respondents no.1 to
3 and their mother that the appellant/plaintiff was required to
prove prior possession. For proving such prior possession
against respondents No.1 to 3, admission of the respondents
no.4&5, in their written statement or in the Agreement to Sell
or in their evidence, could not be relied by the
appellant/plaintiff. The respondents No.4&5 were not
RSA 265/2017 Page 9 of 11
contesting the claim of appellant/plaintiff and rather filed a
written statement admitting the material pleas in the plaint. A
plaintiff, to prove case against defendant, cannot rely upon
admission of another defendant who is not in contest with the
plaintiff.
(M) The appellant/plaintiff was thus required to prove
prior possession by some independent evidence.
(N) The counsel for the appellant/plaintiff, on enquiry, admits
that save for the recital in the Agreement to Sell of being
delivered possession, there is no other evidence led by the
appellant/plaintiff of being in possession of the property, to be
able to sue for recovery of possession thereof on the basis of
prior possession."
20. The last argument of the counsel for the appellant/plaintiff is
that the judgment holds the appellant/plaintiff to be not having any
title, when according to the respondent/defendant also, the
appellant/plaintiff is a co-owner along with the respondent/defendant.
21. The counsel for the respondent/defendant states that the
respondent/defendant does not today also dispute that the parties have
rights in equal share in the property.
22. This Second Appeal thus, does not raise any substantial
question of law to be entertained.
23. Dismissed.
24. The counsel for the appellant/plaintiff, at this stage has
contended that the respondent/defendant has also failed to prove that
he is a co-owner.
RSA 265/2017 Page 10 of 11
25. It was not the title of the respondent/defendant, which was at
issue but the title of the appellant/plaintiff, who had approached the
Court.
26. No costs.
RAJIV SAHAI ENDLAW, J.
AUGUST 10, 2018 M. RSA 265/2017 Page 11 of 11