Delhi District Court
Courts : Delhi vs Sukhdeo Singh on 16 April, 2007
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IN THE COURT OF SH.SANJAY GARG: ADDL. DISTRIC JUDGE:KKD
COURTS : DELHI.
RCA NO. 12/06
DATE OF ARGUMENTS : 12.4.07
DATE OF ORDER : 16.4.07
APPEAL NO.1
Smt. Pushpa Rani (since deceased)
W/o. Shri Mool Chand
through her natural heirs and legal representatives
(i) Shri Kamal Kishore S/o. Late Shri Mool Chand,
R/o. IV/1650 (New)/496A/2F (Old)
Mahavir Block, Bhola Nath Nagar,
Shahdra, Delhi110032.
(ii) Mrs. Krishna W/o. Shri Vrat Pal
R/o. 2577A, Gali No.7, Bihari Colony,
Shahdra, Delhi110032.
(iii) Mrs. Shashi W/o. Shri Parveen Kumar,
R/o. 713/16, Punjabi Basti, Anand Parbat,
New Delhi10005.
VERSUS
Smt. Bimla W/o. Shri Jagdish Lal,
Resident of
i) VI, 1650 (New)/496A/2F (Old)
Mahavir Block, Bhola Nath Nagar,
Shahdra, Delhi110032.
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ii) Nirmal Kutir,
3/81, JExtension, Laxmi Nagar,
Delhi110092.
AND
RCA No. 65/05
APPEAL NO. 2
Smt. Bimla Rani W/o. Sh. Jagdish Lal,
R/o. IV/1650, Mahavir Block,
Bhola Nath Nagar, Shahdra, Delhi110032.
VERSUS
Smt. Pushpa Ran W/o. Shri Mool Chand,
R/o. IV/1650, Mahavir Block, Bhola Nath Nagar,
Shahdra, Delhi110032
through her Legal heirs
i) Shri Kamal Kishore S/o. Late Shri Mool Chand,
R/o. IV/1650 (New)/496A/2F (Old)
Mahavir Block, Gali No.4, Bhola Nath Nagar,
Shahdra, Delhi110032.
ii) Smt. Krishna W/o. Shri Vart Pal
R/o. 2577A, Gali No.7, Bihari Colony,
Shahdra, Delhi110032.
iii) Mrs. Shashi W/o. Shri Parveen Kumar,
R/o. 713/16, Punjabi Basti, Anand Parbat,
New Delhi.
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O R D E R
1. Appellants in both these appeals are aggrieved with the impugned judgment of the trial court dated 14.7.04. This judgment was given by the trial court in the suit filed by first appellant Pushpa Rani for possession and recovery of mesne profits against the respondent who has preferred second appeal against the same order.
2. The facts in brief as enumerated in the civil suit before the trial court are; that plaintiff/appellant Pushpa Rani is the owner of the house No. IV/1650 (New)/ 496A/2F (old number) situated in Mahavir Block, Bhola Nath Nagar, Shahdra built at plot of land measuring 200 sq. yards (hereinafter called the suit property). The appellant had purchased the said land with one room and boundary wall in the year 1971, khasra Girdawri is in her name and she is paying house tax to the MCD on the entire property; that she constructed two independent portions in the said plot. In one portion she is residing alongwith her family and in another portion which consist of one big room and open space, kitchen, bathroom and latrine having total area measuring 80 sq. yards., Defendant/Respondent Bimla( who has preferred second appeal) is residing ; that respondent Bimla was turned out from her matrimonial house by her husband about 12 years back. She approached appellant and out of love and affection by taking pity on her, appellant allowed her to use the second portion of the property temporarily for a short period; that respondent was allowed to use that portion as a licensee. On various occasions she had asked respondent to vacate 4 the said premises and hand over vacant possession but she did not oblige ; that respondent became dishonest and wanted to grab the said portion of the property and illegally requested the MCD to incorporate her name in their records; that appellant objected to the MCD and filed an affidavit; that respondent wanted to raise some construction on the portion in his possession and brought building material on 6.5.89. Appellant objected to it and informed the police ; that respondent filed a suit for permanent injunction against her, which is pending trial; that a written notice was given to the respondent on 21.3.1994 which was served by UPC; that respondent replied the said notice through her advocate; that appellant replied to the notice of the respondent informing respondent termination of her license and requesting her to hand over vacant possession of the premises in her possession. She also demanded damages @ Rs.300/ per month from the respondent ; that respondent neither vacated the premises nor paid damages to her. Hence this suit filed by the appellant for recovery of possession and mesne profits @ Rs.300/ per month.
3. Respondent Bimla ( who has preferred second appeal), who was defendant in the civil suit with the trial Court in her written statement took preliminary objection that suit of the appellant is under valued and the court had no jurisdiction to try this suit. On merits respondent denied that appellant is the owner of the property bearing No. IV/1650 (New)/496A/2F (old number) situated in Mahavir Block, Bhola Nath Nagar, Shahdra measuring 200 sq. yards ; that the property in question belongs to Govt. of India custodian department ; that she is owner in 5 possession of the constructed house of the land on the said property measuring 80 sq. yards. The appellant wants to grab this property by raising false and concocted stories; that the portion under her possession had no connection with the other portion in possession of the appellant ; that the water and electricity meters installed are on her name and since house tax assessed was less than Rs.100/, it is not liveliable by the MCD and is exempted as per the rules and regulations ; that appellant has no right either but asked her to vacate and hand over the possession of the suit property ; that the relief of possession and mesne profits claimed by appellant is illogical as she is absolute owner of the portion in her possession.
4. Appellant filed replication reiterating her contentions as found mentioned in the suit and denying the submissions made by respondent in her written statement.
5. On the pleadings of the parties following issues were framed by the Ld. Trial Court on 15.12.98 :
(i) Whether the plaintiff is owner of the house mentioned in para one of the plaint? OPP
(ii) Whether the defendant is the tresspasser in the property under her occupation as alleged in para 12 of the plaint? OPP
(iii) Whether plaintiff has under valued the suit property for the purpose of Court fees and jurisdiction? OPD
(iv) Whether plaintiff has no locus standi to file the suit against defendant? OPD
(v) Whether the plaintiff is entitled to relief asked for? OPP 6
(vi) Relief, if any ? OPP
6. After appreciating the evidence led by both the parties, to discharge the onus of proving respective issues, the Ld. Trial Court decided issue no.1 , 4 and 5 with common findings in favour of the first appellant. Issue No.3 was also decided in favour of the first appellant. Issue No.2 was decided against first appellant and in favour of second appellant. While granting relief on deciding issue No.6, the Ld. Trial Court give the finding that though plaintiff (who is first appellant here) is held to be the owner of the suit property but relief of possession is not granted because no issue was framed. Though practically all issues were decided in favour of first appellant but the denial of relief of possession made first appellant aggrieved with the impugned order. Second appellant is aggrieved with the findings on various issues in favour of the first appellant. Hence the impugned order failed to satisfy either of the two parties and they both preferred separate appeals challenging the impugned order.
7. Heard the arguments of Ld. Counsel Sh. Deepak Gupta for appellant in first appeal and Ld. Counsel Sh. M. R. Farooqui for the appellant in second appeal. Both the appellants are respondent in the cross appeals. The Ld. Counsel Sh. Deepak Gupta in the first appeal contended that the Ld. Trial Court committed grave error by not granting relief of possession to the appellant by wrongly holding that "relief of possession is not granted because no issue was framed". The Ld. Counsel submitted that relief of possession is squarely covered under issue No.5. The Ld. 7 Counsel has further contended that vide the impugned judgment the Ld. Trial Court created a tenancy @ Rs.300/ per month in the suit premises between both the parties which is contrary to the facts on record and is not possible in law. The Ld. Counsel further argued that if the Ld. Trial Court was of the opinion that there should be specific issue regarding the relief of possession sought by appellant then the specific issue could have been framed at the later stage and simply on the ground that no issue regarding the possession has been framed, the requisite relief cannot be denied to the appellant.
8. The Ld. Counsel Sh. M.R. Farooqui for the appellant in second appeal submitted that the Ld. Trial Court has failed to appreciate the ownership documents filed on record by the appellant. The Ld. Counsel contended that the receipt of payment Ex.DW1/E which was registered with the office of SubRegistrar Delhi was also not considered by the Ld. Trial Court while giving the final verdict. The Ld. Counsel further contended that the Trial Court could have compared admitted signatures of Smt. Pushpa Rani on record with the questioned signatures on Ex.DW1/C to DW1/E in the light of provision u/s. 73 of Indian Evidence Act, but the trial court committed error by not doing so. The Ld. Counsel further argued that the Ld. Trial Court committed illegality by allowing the mesne profits to Pushpa Rani from the date of institution of the suit.
9. Vide issue No.1, appellant Pushpa Rani was asked to establish her ownership over the entire suit property (comprising the portion in possession of 8 appellant Bimla Rani). Pushpa Rani as PW1 has deposed that she had purchased the property from one Ganga Ram vide sale deed Ex.PW1/1. PW1 has further stated that Khasra Girdawri of the suit property is on her name and she is paying the house tax of this property. PW1 has further stated that appellant Bimla Rani is her real sister and on her request accommodation comprising one room, one kitchen alongwith the bathroom and latrine was provided to her with the terms to vacate after examination of her children. PW1 has further stated that Bimla Rani was licensee and subsequently her license was revoked but she did not vacate the premises. During cross by respondent Bimla, PW1 denied that she sold the 80 sq. yards of the property to respondent in the year 1988.
10. Respondent Bimla Rani in her evidence in rebuttal filed documents Ex.DW1/C with General Power of Attorney Ex.DW1/D is deed of agreement to sell, Ex.DW1/E is the receipt of Rs.5000/ which is duly registered stated to have been executed by Pushpa Rani in favour of Bimla Rani for 80 sq. yards out of the suit property in possession of Bimla Rani. Pushpa Rani denied to have executed these documents and called these documents as forged and fabricated.
11. Both the parties has also raised their objections regarding the registration of whole suit property or 80 sq. yards in possession of Bimla Rani, in the house tax records of the MCD. A civil suit No. 469/95 is also pending between the parties wherein evidence has been led by both the parties to establish the assessee qua house tax in MCD records regarding the suit property. The law is settled assessment of 9 house tax in MCD records does not confer ownership. Thereby, in my opinion for deciding this issue the house tax record of the MCD regarding suit property is not relevant. Smt. Bimla Rani has also disputed the title/ownership of Pushpa Rani over the suit property or the portion in her possession stating that the whole property belongs to Govt. of India, Custodian Department. Whereas Pushpa Rani has claimed herself to be the absolute owner of the suit property. The present dispute is confined to the two parties only. Neither custodian department nor Govt. of India is party to this dispute. The findings on these issue will be binding on both the parties and not on any 3rd party who is not party to this dispute. Due to this reason the issue whether the suit property is custodian property not owned by Pushpa Rani is not touched and deliberated.
12. The only defence of Bimla Rani is that the 80 sq. yards of the suit property which is in her possession was sold to her by Pushpa Rani in April'1981 and she is absolute owner of this portion of the property. In support of her contentions she has relied upon documents Ex.PW1/C, PW1/D and PW1/E which are General Power of Attorney, deed of agreement to sell and receipt of sum of Rs.5000/ which is duly registered with the SubRegistrar stated to have been executed by Pushpa Rani in her favour. As already discussed Pushpa Rani has refused to have executed these documents and denied her signatures on these documents calling it to be forge and fabricated. The Ld. Counsel for Bimla Rani has contended that these documents bear signatures of Pushpa Rani which could have been compared by the Ld. Trial Court 10 with the admitted signatures on record, in the light of the provision u/s. 73 of the India Evidence Act, 1872.
13. Section 73 of India Evidence Act gives power to the Court to compare the disputed signatures with the admitted one and give finding on the genuineness of the disputed signatures. While the court is venturing to give its decision on comparison a word of caution has been advised by the Apex Court in State of Maharashtra Vs. Sukhdeo Singh, AIR 1992 SC 2100, the Apex Court has observed that the Court should be slow to compare disputed documents with the admitted documents for comparison although section 73 empowers the Court to compare disputed writings with the specimen/admitted documents shown to be genuine. The Apex Court has further observed that the prudence demands that Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen/admitted writing is not of high standard."
14. In this case the admitted specimen signatures of Pusha Rani are in the plaint and disputed signatures are on Ex.DW1/C to DW1/E. The specimen/admitted signatures of Pushpa Rani are of high standard and can be compared with the disputed signatures. Both the signatures are in the Hindi. The size and way of writing of each and every word, spacing between the different words and the way of pushing the line on the top joining these words are the characters, which in my opinion, are exactly similar between the admitted and disputed signatures. In my mind I have no hesitation to conclude that author of admitted signatures on the 11 plaint and disputed signatures at point B,C, D of Ex.DW1/C to DW1/E is the same person. Moreover Ex.DW1/E, which is receipt for a sum of Rs.5000/ stands registered on 10.3.81 with the SubRegistrar. There is presumption in favour of Bimla Devi on the basis of Ex.DW1/E that Pushpa Rani must have appeared in the office of SubRegistrar on 10.3.81 when this receipt got registered.
15. The other important point which needs consideration at this stage is, can it be said that documents Ex.DW1/C to DW1/E confer title of 80 sq. yards measuring 12 feet x 60 feet, out of the suit property in favour of Smt. Bimla Devi.
16. Section 53A and section 54 of Transfer of Property Act deals with sale of immovable property. Section 202 of the Contract Act deals with the appointment of an attorney. The joint effect of section 53A of Transfer of Property Act and section 202 of the Contract Act has been discussed by our High Court in Civil Revision No. 470 of 2003, the case titled J.C. Mehra Vs. Kusum Gupta wherein Hon'ble justice Sh.C.K. Mahajan has held : "There are two separate concept of ownership in England namely legal owner and equitable owner. Legal owner is a person with whom the title vests in an immovable property by virtue of titled deeds. Equitable owner is an owner in equity on account of various reasons including of having paid money but not having a specific registered titled deed in his name. In India there is only 12 one concept and is that of legal owner. There was no concept of equitable owner apart from a legal owner. The sale of immovable property is dealt with under Section 54 of the Transfer of property Act. Section 53A of Transfer of Property Act was introduced in 1929 by way of an amending Act. Once necessary ingredients of Section 53A are complied with and possession of the property is delivered to the proposed transferee then neither the actual owner nor his successor in interest had any right to enforce against the proposed transferee any right in respect of the immovable property except those specified by the agreement to sell itself. Added to the protection given to an incomplete owner under section 53A, who is not having a registered sale deed but only has an agreement to sell with possession, protection was given by virtue of provision of Section 202 of the Contract Act and in terms whereof a person, who executed power of attorney for consideration, the same could not be revoked. Thus, on a conjoint reading of Section 53A of Transfer of property Act and Section 202 of the Contract Act, the effect is that transferor of a property, who has executed an agreement to sell and a power of attorney, though 13 continued to be the legal owner of the property as per little deed yet all his powers were taken away and such powers vested were vested in the person whose favour the agreement to sell ad power of attorney was executed.
The issue is as to whether a person who purchases a property by means of an agreement to sell for consideration along with possession (or the right to recover rents) and power of attorney can seek to evict the person after five years of his having got the agreement to sell and power of attorney in his favour. The issue no long is resintegra.
17. The concept of power of attorney sales was discussed at length in 2002 II AD Delhi 734 , the case titled Asha M. Jain Vs. The Canara Bank & others. The D.B of our High Court held as under : " We are in agreement with the view that the concept of power of attorney sales have been recognised as a mode of transaction. These transactions are different from mere agreement to sell since such transactions are accompanied with other documents including General Power of Attorney, Special Power of Attorney and Will and affidavits and full 14 consideration is paid. This is what also has happened in the present case. There are two general power of attorneys, special power of attorney and the Will apart from the agreement to sell. One of the general power of attorney is registered.
Further the Will is also registered. Thus there are two contemporaneous documents which are registered and they lend authenticity to the date of execution of documents. The power of attorneys' are for consideration with the meaning of Section 202 of the Contract Act, 1872. Thus there is no doubt that interest has been created in the property in favour of the appellant. Possession is also been handed over. Thus the provisions of Section 53A of the Transfer of Property Act would also come into play. The bank is debarred from enforcing any right qua the property other than the right conferred by the agreement to sell. The agreement to sell has nowhere reserved any right on the transfer either for resuming the property or payment of any additional money. The transferor is debarred from claiming back the property from the appellant. The net result of all this is that the rights have 15 been created in favour of the appellant which cannot be defeated by the attachment order."
18. In the present case Pushpa Rani executed General Power of Attorney Ex.DW1/C, deed of agreement to sell Ex.DW1/D and receipt Ex.DW1/E for a sum of Rs.5000/ in favour of Smt. Bimla Rani for 80 sq. yards out of the suit property. The receipt Ex.DW1/E is duly registered with the SubRegistrar. Admittedly Bimla Rani is in possession of 80 sq. yards of the suit property for the last many years. In view of the observation of our High Court in Jagdish Chandra Mehra's case (Supra), the effect of transfer of 80 sq. yards of the suit property by Pushpa Rani to Bimla Rani is complete in all respects. It thereby stands established that Pushpa Rani is not the owner of entire 200 sq. yards of the plot bearing No. IV/1650 (New)/496A/2F (old number) situated in Mahavir Block, Bhola Nath Nagar, Shahdra. It also stands established that out of 200 sq. yards, Bimla Rani is owner in possession of 80 sq. yards of land where she is residing at present with her family. Issue No.1 is accordingly decided against Pushpa Rani and in favour of Bimla Rani.
19. In view of the findings on issue No.1, issue No. 2 and 4 are also decided against Pushpa Rani and in favour of Bimla Rani.
20. Issue No.3 which touches valuation of the suit property for the purpose of court fee and jurisdiction is somewhat also legal issue in nature. Plaintiff Pushpa Rani has valued the suit for the purpose of relief of possession for Rs.16,000/ and for recovery of mesne profits for Rs.1200/ and requisite court fee has been paid 16 accordingly. Since Pushpa Rani is in possession of some part of the suit property, as per law she has discretion to do valuation of the suit property and pay court fee accordingly.
21. As per law since Pushpa Rani being plaintiff is in possession of a part of the suit property, she could have even paid fixed court fee as provided under article 17 (6) of Schedule II of the Court Fee Act. The reliance is placed upon 2006 Rajdhani Law Reporter 7, the case titled Sudarshan Kumar Seth Vs. Pawan Kumar Seth etc. Accordingly, issue No. 3 is decided in favour of Pushpa Rani and against Bimla Rani. In view of the aforesaid reasons, the judgment of the Trial Court dated 14.7.05 is setaside. The appeal No. RCA 12/06 of appellant Pushpa Rani is dismissed. Whereas appeal No. 65/05 of appellant Smt. Bimla Rani is accepted.
22. The TCR with the copy of this order be sent to the Trial Court and the record of appeal be consigned to record room.
ANNOUNCED IN THE OPEN COURT (SANJAY GARG)
ON 16.4.07 ADDL. DISTRICT JUDGE
KKD COURTS; DELHI.
(two cc attached)