Delhi District Court
Smt. Vimla Sharma vs (1) Sh. Hitesh Kumar on 17 April, 2015
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
RCA No. 108/14
Case I.D. Number : 02402C0282162014
IN THE MATTER OF :
Smt. Vimla Sharma
Wife of Sh. R. C. Sharma
R/o 360, F Pocket II,
Mayur Vihar,
Delhi110091. .......Appellant
V E R S U S
(1) Sh. Hitesh Kumar
S/o Sh. Bal Kishan
R/o D9, Radhey Puri
Delhi110051.
(2) Sh. Murari Lal
S/o Sh. Nand Kishore
R/o Gali Neki Ram Ki
Dinoda Gate, Bhiwani
Haryana.
(3) Smt. Savita Sharma
W/o Sh. Murai Lal
R/o J71, Pandav Nagar,
RCA No. 108/14
Vimla Sharma Vs. Hitesh Kumar & Ors. page 1 of 36
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi
Delhi.
(4) Sh. Kuldeep Sharma
(5) Sh. Atul Sharma
Both sons of Sh. G. D. Sharma
R/o 45, Gandhi Sadan,
Panchcuya Road, New Delhi. ........ Respondents
Date of Institution of Appeal : 18.09.2014 Arguments Heard on :16.04.2015 Date of Judgment/Order : 17.04.2015 Decision : Appeal is dismissed with costs J U D G M E N T
1. The present appeal impugns the judgment and decree dated 13.08.2014 passed by Ld. JSCC/ASCJ/Guardian Judge (NE), Karkardooma Courts in suit No. 619/07 whereby the plaintiff's suit for declaration and permanent injunction for declaring the sale deed dated 12.10.01 executed by defendant No. 2 in favour of defendant No. 4 and 5 on the basis of documents executed by defendant No. 1 in favour of defendant No. 2 registered with subregistrar VIII on 12.10.2001 at serial No. 4112 in additional book No. 511 at page No. 42 to 45 as null and void and for restraining the defendants, legal heirs, successors, agents and associates etc. from causing any interference in the peaceful possession and use of the plaintiff in respect of property bearing No. J71, Pandav Nagar, Delhi92 RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 2 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi ( hereinafter referred to as the suit property) filed against the defendants was dismissed.
The parties herein are referred as per their status before the Ld. Trial Court.
2. The brief and relevant facts in the background of which the present suit was filed by the plaintiff/appellant is reproduced from the impugned judgment as follows: (I) The case of the plaintiff as set up in the plaint is that the suit property was sold by defendant No. 1 Sh. Hitesh Kumar to defendant No. 2 and 3 Sh. Murari Lal and Smt. Savita Sharma jointly vide GPA and Will dated 28.01.1994 and deliver agreement to sell physical possession of the suit property. Plaintiff has alleged that she purchased ½ undivided share of the suit property from defendant No. 3 Smt. Savita Sharma vide agreement to sell, GPA, receipt dated 02.12.1999 and let out the same to defendant No. 3 on rent. Plaintiff has alleged that she filed two complaint cases against defendant No. 2 U/S 138 NI Act and in that proceedings defendant No. 2 compromised with the plaintiff and agreed to sale ½ share in the suit property and executed agreement to sell, GPA, receipt and delivered actual physical possession of the suit property. Plaintiff has alleged that defendant No. 2 in conspiracy with defendant No. 4 and 5 got executed certain papers in his name with regard to suit property from defendant No. 1 and RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 3 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi thereafter the defendant No. 2 again sold the suit property to defendant No. 4 and 5 vide sale deed dated 12.10.2001 alone, which was jointly purchased by defendant No. 2 and 3 from defendant No. 1. Plaintiff has alleged that in this manner the defendant No. 2 in conspiracy with defendant No. 1, 4 and 5 defeated the lawful interest of the plaintiff which was created vide GPA, Agreement to Sell, receipt dated 13.08.2003. Plaintiff has alleged that she purchased the suit property for valuable consideration and the agreement to sell, GPA, receipt etc. are towards part performance of the agreement as the plaintiff took possession of the suit property and paid full and final consideration to defendant No. 2 and 3. Plaintiff has alleged that the sale deed dated 12.10.2001 is nothing but an example of fabrication and conspiracy as the defendant No. 1 and 2 were very much aware that the suit property stands jointly to defendant No. 2 and 3 and further when the defendant No. 2 compromised the proceedings instituted by plaintiff against defendant No. 2 U/S 138 of NI Act failed to disclose or state either to plaintiff or the court that he has sold the suit property to defendant No. 4 and 5 and in this manner the claim of Rs. 2 lacs of the plaintiff against the defendant No. 2 was also defeated as the plaintiff withdrew her complaint upon executing of GPA, agreement to sell, receipt etc. by defendant No. 2 in favour of the plaintiff. Plaintiff has alleged that she came to know of the sale deed when the defendant No. 2, 4 and 5 broke open the locks of the RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 4 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi house and FIR was registered against defendant No. 2, 4 and 5 by defendant No. 3. Plaintiff has alleged that defendant No. 4 and 5 thereafter filed a suit for permanent injunction against defendant No. 2 and 3 pending in the court of Ms. Rekha, CJ, KKD Courts, Delhi then plaintiff came to know about his sale deed when a photocopy of the sale deed was given with the plaint by the defendant No. 4 and 5 to defendant No. 3 and defendant No. 3 showed that copy to the plaintiff. Plaintiff thereafter moved an application under Order 1 Rule 10 CPC for impleading her as necessary party but the same was dismissed by court of Ms. Rekha, CJ, KKD Courts, Delhi. Plaintiff has alleged that she became the owner of the entire suit property after executing the agreement to sell, GPA, receipt dated 09.08.2003 by defendant No. 2 and since then the plaintiff is in lawful possession of the suit property and the defendant No. 4 and 5 are threatening the plaintiff to dispossess forcibly without course of law after dismissal of the application under Order 1 Rule 10 CPC. Plaintiff has alleged that the sale deed dated 12.10.2001 is liable to be declared null and void ineffective and not binding upon the plaintiff. Hence, the present suit. (II) Defendant No. 3 has contested the present suit by filing her written statement. In the WS, defendant No. 3 has submitted that plaintiff was never in possession of the suit property and she is in actual physical possession of suit property. It is submitted that she has already canceled RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 5 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi the GPA dated 02.12.1989 on 24.10.2005 and also issued a notice in this regard to the plaintiff through her counsel. It is further submitted that she never sold her share in the suit property to the plaintiff. Rather the plaintiff and her husband Sh. R. C. Sharma, Advocate had appeared as the counsel for defendant No. 3 in many cases and during that process the plaintiff and her husband got obtained the signatures of defendant No. 3 on a GPA and registered the same by saying that she need not to go the court again and again and this GPA would be used only in respect to cases filed by her or against her. The defendant No. 3 never intended to sell her share in the suit property to the plaintiff or any other person. The defendant No. 3 has already taken legal action against the plaintiff in the Bar Council of Delhi who had intentionally and fraudulently committed this cheating with the defendant No. 3 and those documents have no legal entity in the eyes of law being forged and fabricated one. It is further submitted that husband of defendant No. 3 has fraudulently sold the suit property to one Kuldeep Sharma and Atul Sharma without her consent and when she came to know about the illegal act of the defendant No. 2 she lodged a complaint with PS Pandav Nagar in year, 2003 and FIR No. 161/2005 U/S 420/120B IPC was registered against the defendant No. 2, 4 and 5 and same is pending trial before Ld. ACMM/ KKD Courts, Delhi. It is further submitted that defendant No. 2 Murari Lal Sharma has not been residing with the RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 6 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi defendant No. 3 since the year 2000. Rest of the material contents of the plaint have been denied by the defendant No. 3.
(III) Defendant No. 4 and 5 have contested the present suit by filing their joint WS along with their counter claim in which they are seeking recovery of possession of ground floor of the suit property. It is stated that defendant No. 2 sold the suit property comprising ground floor to defendant No. 4 and 5 for consideration of Rs. 1 lac by virtue of sale deed dated 12.10.2001. The suit property was sold by defendant No. 1 to defendant No. 2 by virtue of GPA, registered Will, agreement to sell, receipt, possession letter all dated 29.08.2001. It is further stated that defendant No. 1 to 3 and plaintiff in conspiracy of each other got executed unstamped and unregistered documents in their own name from defendant No. 1 and thereafter, defendant No. 2 sold his undivided share in the suit property to plaintiff on 13.08.2003 and defendant No. 3 sold her undivided share in the suit property to the plaintiff on 02.12.1999. In the counter claim, it is prayed that documents dated 28.01.19994 be declared as null and void and documents dated 02.12.1999 13.08.2003 be declared as forged and fabricated and a decree of possession be passed in favour of defendant No. 4 and 5.
(IV) Plaintiff has filed replication to the written statement of the defendant No. 3 and therein she has reiterated the contents of plaint which RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 7 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi are in denial.
(V) Plaintiff has also filed replication to the Written Statement of the defendant No. 4 and 5 along with written statement to their counter claim and therein she has reiterated the contents of plaint which are in denial. (VI) From the pleadings of the parties, the following issues were framed by Ld. Trial Court vide order dated 29.07.2009: (1) Whether the plaintiff is entitled for decree of declaration as prayed in the suit ? OPP (2) Whether the plaintiff is entitled for decree of permanent injunction as prayed in the suit ? OPP (3) Relief.
3. The appellant has preferred the instant appeal on the ground that the impugned judgment and decree dated 13.08.2014 is not sustainable in law and facts and is passed without application of judicial mind. It is further contended that the impugned judgment and decree is not passed on the basis of the admitted and proved facts and the judgment suffers from illegality and infirmity. As mentioned the Ld. Trial Court failed to appreciate the correct facts of the case and relevant materials on record. As contended, the order is contrary to the evidence on record and Ld. Trial Court committed error in appreciation of evidence; testimony of the defendant No. 3 was ignored and the documents were not considered. As RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 8 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi contended the Ld. Trial Court failed to appreciate the facts and reached to wrong conclusion; the Ld. Trial Judge has not applied his mind and disposed off the suit without following due process of law and considering the relevant aspects. This appeal is filed praying to set aside the impugned judgment and decree.
4. The respondent No. 3 filed reply to the appeal contending that it is not maintainable, there is no illegality or infirmity in the impugned judgment and the appeal is without any merit. The respondent No. 3 further denied all the contentions of the appellant in the appeal and supported the impugned judgment and decree; prayed to dismiss the appeal with cost.
5. Reply to the appeal was not filed by the remaining respondent but they also supported the impugned judgment to be correct and passed in accordance with law and prayed to dismiss the appeal with cost.
6. I have heard Ld. Counsel for the parties, gone through the written submissions filed on their behalf and perused the relevant materials available on records along with TCR. I have also considered the authorities relied by the parties in support of their contentions in their written submissions.
7. 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 RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 9 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi court in the form of plaint and written statement and the nucleus of the case of the plaintiffs and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for partition, 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 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".
RCA No. 108/14
Vimla Sharma Vs. Hitesh Kumar & Ors. page 10 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi
8. 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 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.
9. The brief and relevant facts for filing of this suit and issues framed has been mentioned above. Along with appeal an application U/O 41 Rule 27 CPC was filed by the appellant praying for leading additional evidence RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 11 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi and for filing RTI reply regarding the Telephone. Reply to the application U/O 41 Rule 27 was filed by the respondent No. 3 denying the averments in the application.
10. Nowhere in the application U/O 41 Rule 27, it is mentioned that why the appellant/ plaintiff did not take the appropriate steps to summon the relevant witness in support of the contentions before Ld. Trial Court. The learned counsel for the respondent No. 3 opposed this application contending that appellant cannot be permitted to lead additional evidence as the appellant failed to assign any reason for the same.
The contentions of the learned counsel for appellant in support of this application itself appears to be contrary and appellant failed to assign any reason for not making such request at the relevant stage. As held in AIR 2001 SC 2802, AIR 2005 P& H 42 and (2001) 7 SCC 503 it is trite to observe that U/o XLI, rule 27 additional evidence could be adduced in one of the three situations, namely, (a) whether the trial court has illegally refused the evidence although it ought to have been permitted;(b) whether the evidence sought to the adduced by the party was not available to it despite the exercise of due diligence;(c) whether additional evidence was necessary in order to enable the Appellate court to pronounce the judgment or any other substantial cause of similar nature. It is equally wellsettled that additional evidence cannot be permitted to be adduced so RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 12 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi as to fill in the lacunae or to patch up the weak points in the case.
As further held in AIR 2005 MAD 431, it is not open to any party at the stage of appeal to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirement of order 41 Rule 27 of CPC. Additional evidence cannot be permitted at the appellate stage in order to enable other party to remove certain lacunae present in that case.
11. As held in (2012) 8 SCC 148, the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. Order 41Rule 27 CPC enables appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled as apprised, to the admission of such evidence. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. As further held, the appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of the satisfactory reasons for the non RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 13 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi production of the evidence in the trial court, additional evidence should not be admitted in appeal.
12. Keeping in view of aforesaid discussion, this court of the considered opinion that there is no basis for allowing this application u/o 41 Rule 27 CPC filed by appellant. This court does not find any substance and the application is therefore dismissed.
13. To appreciate the rival contentions of the parties, it is necessary to refer relevant provisions of law regarding declaration and permanent injunction i.e. Section 34 and 38 of Specific Relief Act, 1963 which is as below: Section34 Discretion of Court as to declaration of status or right Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 14 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi omits to do so.
Section 38. Perpetual injunction when granted. (1) Subject to the other provisions contained in or referred to by this chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
14. Section 38 of Specific Relief Act enables the court to grant perpetual injunction to prevent the breach of an obligation existing in favour of applicant, whether expressed or implied. Meaningly, the question is to be examined as to whether there exists an obligation in favour of the applicant and if the answer is in affirmative and the case falls within the ambit of Section 41 of the Specific Relief Act an injunction cannot be granted. It is also necessary to mention that rights and obligations are corollary each other and the right places a correspondence duty also for its existence. The injunction is a discretionary relief and its grant of refusal depends upon the circumstances and facts of a particular case. The discretion has to be reasonable guided by judicial principles and law. It must not be arbitrary, vague and fanciful. Section 41 of the Specific Relief Act enumerates the cases where an injunction will be denied.
As held in ILR 14 Cal. 184, the relief by way of mandatory injunction is discretionary. The court will weigh the amount of substantial RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 15 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi mischief done or threatened to the plaintiff and compare it with that of the defendant in the event of grant of injunction.
14. As held in JT 1994 (6) SC 588 , interest of right not shown to be in existence cannot be protected by injunction. Issuance of order of an injunction is absolutely discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41 (j) of the Specific Relief Act, 1963 and the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence cannot be protected by injunction.
15. The issues framed in the suit have been mentioned above. The onus to prove the issues regarding entitlement for the relief as prayed in the suit was upon the plaintiff. There is no admission regarding the claim of the plaintiff in the plaint rather the contentions of the plaintiff is denied. The parties led their evidence in support of their contentions as mentioned in the pleadings. As noted, plaintiff claimed to have purchased the suit property from defendant No. 3 vide GPA, Agreement to Sell and Receipt dated 02.12.99. The plaintiff claimed declaration and permanent injunction RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 16 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi on the basis of title. As per the plaintiff, the defendant No. 3 was inducted as tenant and is in possession of the suit property.
16. The evidence of the plaintiff was somehow on the similar lines as contended in the plaint. It appears that the main issue to be adjudicated remained as to whether the plaintiff can be considered as the owner of the suit property on the basis of the documents dated 02.12.99 i.e. Agreement to Sell, GPA and Receipt executed by defendant No. 3 ? This issue appears mainly issue of law.
17. It is appropriate and relevant to note the relevant legal provisions and authorities for proper examination and adjudication of the aspect of ownership of the plaintiff as contended in the plaint.
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 RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 17 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi for a price paid or promised or partpaid and part promised.
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 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 RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 18 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi 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 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 RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 19 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi 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 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.
18. 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 RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 20 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi 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.
19. 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 transfer of immovable property can only be affected by executing a registered documents. Merely making an agreement of sale or execution of RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 21 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi power of attorney could not transfer right, title or interest of any immovable property.
20. 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) in this respect as held, the documents of title relied upon by the plaintiff such as Ex. PW 1/ 2 to Ex. PW1/6 i.e. GPA , Agreement to Sell, Will, receipt and possession letter in her favour would not confer ownership rights in respect of immovable property in her 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: RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 22 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi "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 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 RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 23 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi 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 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, RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 24 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi 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 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 RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 25 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi 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 of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powersof Attorney 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 RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 26 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi 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 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 RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 27 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi 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 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.
21. 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 RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 28 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi 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.
22. Section 63 (c) of the Succession Act 1925 requires a will to be attested. Further the same cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution. In this regard the in the case of Gopal Swaroop v. Krishna Murari Mangal reported in (2010) 14 SCC 266 the Hon'ble Supreme Court was pleased to hold as under:
"17. A careful analysis of the provisions of Section 63 would show that the proof of execution of a will would require the following aspects to be proved:
(1) That the testator has signed or affixed his mark to the will or the will has been signed by some other person in the presence and under RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 29 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi the direction of the testator.
(2) The signature or mark of the testator or the signature of the persons signing for him is so placed has to appear that the same was intended thereby to give effect to the writing as a will. (3) That the will has been attested by two or more witnesses each one of whom has signed or affixed his mark to the will or has been seen by some other person signing the will in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of the signature or mark or the signature of each other person.
(4) That each of the witnesses has signed the will in the presence of the testator."
23. As regards the relief of injunction, the injunction is a discretionary relief and its grant of refusal depends upon the circumstances and facts of a particular case. The discretion has to be reasonable guided by judicial principles and law. It must not be arbitrary, vague and fanciful. Section 41 of the Specific Relief Act enumerates the cases where an injunction will be denied. Sub Section (h) of section 41 mention that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust the injunction cannot be granted. Sub Section (i) mention regarding refusal of injunction when the conduct of the applicant or his agents has been such as to disentitle him to RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 30 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi the assistance of the court. Section 38 of the Specific Relief Act enables the court to grant a perpetual injunction to prevent the breach of an obligation existing in favour of applicant whether express or implied. Meaningly the question is to be examined as to whether there exists an obligation in favour of the applicant and thereafter if the answer is yes, if the case falls within section 41 of the Act, an injunction cannot be granted. It is also necessary to mention that rights and obligation are corollary to each other and the right places a corresponding duty also for its existence.
24. 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. 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 RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 31 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi 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 document has been executed in favour of plaintiff.
25. In the present case, plaintiff has claimed title on the basis of GPA, Agreement to Sell and Receipt but the execution of the documents not proved. The exception made out in re Suraj Lamps Industries Case ( Supra) is also not applicable in this case. The relevant witness is not produced by the plaintiff at all to prove the execution of this documents and merely filing of this documents on records is not sufficient to prove the same. None of these documents are registered. Even if these documents were executed in favour of plaintiff, the same would not create any title in her favour. 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 and not entitled for the relief of declaration and permanent injunction as prayed in the suit.
26. The plaintiff claimed to have inducted the defendant No. 3 as tenant after purchasing from her but there is nothing on record except her bald averments. No steps was also taken by the plaintiff for getting the property transferred in her name after alleged purchase from defendant No. 3. RCA No. 108/14
Vimla Sharma Vs. Hitesh Kumar & Ors. page 32 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi From the trial court records it is also apparent the testimony of the plaintiff/appellant was totally shattered during crossexamination. The Ld. Trial Court appeared to have examined the aspects regarding purchase of the suit property as claimed by the plaintiff vide impugned judgment properly and this court finds itself also in consonance with the findings of the Ld. Trial Judge. This court does not find and irregularity or infirmity in the impugned judgment. The conduct of the plaintiff is also emphasized by the Ld. Trial Judge in the impugned judgment to demonstrate the truth. The Ld. Trial Court rightly reached to conclusion regarding the documents relied by the plaintiff and the same does not warrant for any interference.
27. It is reiterated that plaintiff has not placed on record any documents in support of her contentions regarding prayer of permanent injunction nor filed any documents on records that the defendant was permitted to use the premises as permissive user/tenant. None of the documents relied by the plaintiff are registered nor the plaintiff proved that the possession of the suit property was ever handed over to him and therefore neither Section 53 A of the Transfer of Property Act, 1882 nor Section 202 of the Contract Act, 1872 is applicable for ownership of the respondent. 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. RCA No. 108/14
Vimla Sharma Vs. Hitesh Kumar & Ors. page 33 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi
28. Admittedly the defendant is in possession of the suit property. The plaintiff allegedly derived the title through documents dated 02.12.99 i.e. GPA, Agreement to Sell and Receipt. By no stretch of imagination by virtue of these documents, the plaintiff can be considered as the owner of the suit property having right, title or interest.
29. In view of the aforesaid discussions and referred law, this Court is of the considered view that the respondent cannot be considered having right, title or interest in the suit property. and the documents dated 02.12.99 i.e. GPA, Agreement to Sell and Receipt relied by the plaintiff is neither helpful nor sufficient to prove the claim of the plaintiff in the suit. Plaintiff is therefore not entitled for the decree of declaration and permanent injunction as prayed in the suit.
30. As held in Subhra Mukharjee Vs. Bharat Coking Coal Ltd., AIR 2000 SC 1203, the party which makes the allegation must prove it. As held in AIR 1997 Calcutta 120, the burden lies upon the party who challenges the entry to establish by unimpeachable evidence that entry was erroneous. It is necessary to note that the appellant has not taken any steps in respect. The appellant has failed to produce any evidence in support of contentions. Undisputedly, the burden lies on the appellant to establish such facts.
31. I have gone through the judgment reported as (2003) 8 SCC 752. As held: RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 34 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi 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 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 RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 35 of 36 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi circumstances of this case.
32. As mentioned, the plaintiff has filed the suit seeking declaration and permanent injunction. The appellant categorically failed to prove the contentions and prove the issues. The Ld. Trial Court has examined the issues framed in the suit in proper perspective. Mere oral averments by the appellant is not sufficient to prove the case. This court does not find any illegality or infirmity in the impugned judgment and decree dated 13.08.2014 which is well reasoned/correct appreciation of facts and in accordance with the provisions of law. The impugned judgment is therefore entitled to be upheld. There is no merit or substance in the appeal which is liable to be dismissed. The appeal is therefore dismissed with costs.
33. Decree sheet be drawn accordingly.
34. Trial Court record be sent to the concerned court along with copy of this judgment.
35. Appeal file be consigned to record room.
Announced in open Court on this 17th day of April, 2015 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi RCA No. 108/14 Vimla Sharma Vs. Hitesh Kumar & Ors. page 36 of 36