Delhi District Court
Sh. Tara Chand vs (1) Sh. Brij Mohan on 17 August, 2015
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02, (NE)
KARKARDOOMA COURTS, DELHI
CS No. 116/14
Unique ID No : 02402C0108862013
IN THE MATTER OF:
Sh. Tara Chand
S/o Late Arjun Ram
R/o CPJII/41, First Floor,
New Seelampur,
Delhi110053 ................ Plaintiff.
VERSUS
(1) Sh. Brij Mohan
S/o Sh. Tara Chand
(2) Smt. Poonam
W/o Sh. Brij Mohan
Both R/o CPJII/41, II & III Floors,
New Seelampur,
Delhi110053 .............. Defendants.
Date of Institution : 10.04.2013
Received in this Court : 04.02.2014
Date of Arguments : 17.08.2015
CS No. 116/14 1/33
Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Date of Judgment : 17.08.2015
Decision : Suit is decreed with cost.
Suit for possession, mesne profits/ damages & permanent injunction
JUDGMENT
1. The plaintiff filed this suit for possession against the defendant No. 1 / son and defendant No. 2 / daughter in law regarding second and third floor of property bearing No. CPJII/41, New Seelampur, Delhi53( hereinafter called the suit property as shown in red colour in site plan attached with the plaint), damages / mesne profits @ of Rs. 500/ per day alongwith interest @ 18 % per annum and permanent injunction for restraining the defendants, agents, attorneys, representative from creating any third party interest in the aforesaid property.
2. It is stated in the plaint that plaintiff is the Sr. Citizen residing in one room on the first floor alongwith latrine and bathroom in property bearing No. CPJII/41, New Seelampur, Delhi53( as shown in green colour in the site plan attached with the plaint). Plaintiff claimed to be the owner of the suit property. As noted, initially the aforesaid property was alloted by DDA to Sh. Arjun Ram, father of plaintiff who died intestate leaving behind brothers and sisters of the plaintiff who relinquished their respective shares in the property in favour of the plaintiff. The defendant were allowed to live CS No. 116/14 2/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. as licensee in second and third floor since 1996 without any license fee and charges. Rest of portion of the property occupied by the tenants as shown in blue color of site plan. The behaviour of the defendants towards the plaintiff is not proper and good and therefore while terminating the license, the defendant were asked to vacate and handover the possession of the suit property to the plaintiff but of no avail. Legal notice dt. 08.03.13 was also issued to the defendants but the defendants did not vacate the premises despite service of the legal notice. As the defendants failed to vacate the premises, they have become unauthorized occupants and liable to pay damages /mesne profits @ Rs. 500/ per day excluding other charges. The defendant further restrained to create any third party interest in the suit property. Hence this suit is filed by the plaintiff against the defendant.
3. After the service of summons upon the defendants, the written statement was filed by defendants contending that this suit is not maintainable and filed without cause of action, the plaintiff has concealed the material facts and filed to grab the suit property. As contended by defendants, the aforesaid property was alloted to the father of plaintiff in 1969 who died on 25.06.73. On 17.11.98, the LRs of deceased Arjun Ram relinquished their share in entire property in favour of the plaintiff vide registered relinquishment deed. On 30.06.00, plaintiff executed registered GPA, will and gift deed in favour of his brother Puran Chand. On 10.03.07, CS No. 116/14 3/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. Puran Chand has executed GPA, agreement, receipt and possession letter in respect of aforesaid property in favour of Smt. Kamlesh and Smt. Kamlesh further executed GPA, Agreement to sell, receipt and will on 30.04.07 in favour of defendant No. 1. Smt. Kaushlaya Devi, one of the LR of late Sh. Arjun Ram relinquished her share in favor of plaintiff on 04.02.08. On 16.02.08, the plaintiff executed GPA, agreement to sell, receipt, possession letter in favour of defendant No. 1 and defendant No. 1 became absolute owner of the suit property. The defendants further denied rest of the material contentions of the plaintiff in the plaint, claimed themselves as the owner and not the licensee, the defendants prayed to dismiss the suit with costs.
4. In view of the pleading of the parties, following issues were framed vide order dt. 06.11.2013: (1) Whether the plaintiff is the owner of the suit property? OPP (2) Whether the defendant No. 1 is the owner of the suit property ? OPD1 (3) Whether the plaintiff is entitled to a decree for possession of the suit property ? OPP.
(4) Whether the plaintiff is entitled to damages/ use and occupation charges at the rate of Rs. 500/ per day as well as CS No. 116/14 4/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. electricity and water charges from the date of filing of the suit till the date of recovery of possession of the suit property at the rate of 18 % per annum :? OPP (5) Whether the plaintiff is entitled to a decree for permanent injunction as prayed for ? OPP (6) Relief.
And the case was fixed for plaintiff's evidence.
5. The plaintiff filed his affidavit by way of evidence Ex. PW1/A and was examined himself as PW1 in support of the case. The witness deposed as per averments made in the plaint and also deposed regarding the documents in support of his claim i.e. Site plan Ex. PW 1/1, legal notice dt. 08.03.13 Ex. PW 1/ 2, two postal receipts for sending the legal demand notice Ex. PW 1/ 3 and 1/ 4, speed post receipts Ex. PW 1/ 5 and Ex. PW 1/ 6, AD Cards Ex. PW 1/ 7 and Ex. PW 1/ 8 and DD No. 38 regarding receiving of complaint dt. 14.03.13 Ex. PW 1/ 9.
Plaintiff has examined other witness Sh. Shankar Lal, LDC from East ZoneB, Delhi Urban Shelter Improvement Board, Delhi as PW 2 who deposed that the Plot No. CPJII/41, New Seelampur, Delhi was alloted under the scheme of Jhuggi Jhompari Removal Scheme to late Sh. Arjun Ram S/o Sh. Chhaju Ram vide Vote S No. 839/S, No. 6, Part No. 56, Possession Letter No. 63/19( old) cancelled on dt. 01.04.69. CS No. 116/14 5/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. The plaintiff has also examined Sh. Puran Chand as PW3 by way of affidavit Ex. PW3/1 who deposed nothing but the facts as deposed by the PW1. The witness has deposed that he is brother of the plaintiff and plaintiff is the owner of the suit property ; the defendants are licensee of the plaintiff residing on second and third floor. As deposed, the suit property was alloted to Sh. Arjun Singh i.e his father who died intestate and LRs of Arjun Singh relinquished their share in favour of plaintiff. The witness deposed the defendant No. 1 obtained his signatures and thumb impression on certain documents / stamp paper and forged the same.
As no other witness was examined by the plaintiff, the PE was closed and case was fixed for DE.
6. The defendant Brij Mohan filed his affidavit by way of evidence Ex. DW 1/A and was examined as DW1 who deposed regarding the averments in the WS. The DW1 relied upon the documents i.e. Copy of relinquishment deed Ex. DW 1/ 1, GPA dt. 30.06.00 Ex. DW 1/ 2, GPA dt. 10.03.07 Ex. DW 1/ 3, GPA dt. 30.07.04 Ex. DW 1/ 4, release dead dt. 04.02.08 Ex. DW 1/ 5, GPA dt. 16.02.08 Ex. DW 1/ 6 and electricity bill in his name Ex. DW 1/ 7. As no other witness remained to be examined by the defendants, the DE was closed.
7. I have heard the counsels for the parties, gone through the relevant material on records. I have also considered the relevant provisions of law. CS No. 116/14 6/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. Having drawn my attention to the pleadings of the parties, testimony of witnesses and materials on records, it is submitted on behalf of plaintiff that plaintiff has proved his case and the defendants have no right, title or interest in the suit property and it has been proved that the plaintiff is the owner of the suit property. It is further contented that ownership of the plaintiff is admitted and in view of section 58 of the Indian Evidence Act, 1972, the facts admitted did not require any proof. The counsel for plaintiff prayed to pass decree in favour of plaintiff and against the defendants.
Learned counsel for defendants on the other hand denied the contentions of the plaintiff mentioning that defendant No. 1 has purchased the suit property and is owner of the same. The learned counsel for defendants lastly prayed that as the plaintiff failed to discharge the onus, suit of the plaintiff is dismissed with heavy cost.
8. My findings issuewise are as under : Issue No. I to III: (1) Whether the plaintiff is the owner of the suit property? OPP (2) Whether the defendant No. 1 is the owner of the suit property ? OPD1 (3) Whether the plaintiff is entitled to a decree for possession of the suit property ? OPP.
CS No. 116/14 7/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
9. The onus to prove issue regarding the ownership i.e. Issue No. 1 and II was on the plaintiff and defendant both in view of their contentions whereas the onus to prove the issue No. III was on the plaintiff. As all these issues are interrelated, these are examined and adjudicated together.
10. 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 for partition, this suit is to be decided on the basis of preponderance of probabilities. In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe that "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 CS No. 116/14 8/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
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".
11. 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. 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.
12. The brief and relevant facts for filing of the suit alongwith defence of the defendants is mentioned at the outset. The defendant No. 1 is the son CS No. 116/14 9/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. and defendant No. 2 is daughter in law of plaintiff who are claimed to be the licensee in the suit property. There is no dispute that late Sh. Arjun Ram was alloted of the suit property by DDA who died intestate leaving behind his LRs and all the LRs of late Sh. Arjun Ram executed relinquishment deed in respect of suit property in favour of the plaintiff. Plaintiff further claimed that the license of the defendant was terminated vide legal notice dt. 08.03.13 which is Ex. PW 1/ 3 and PW 1/ 4 and despite termination of the license, defendant failed to vacate the premises and liable to pay damages/ mesne profits as prayed in the suit.
13. The ownership and right, title or interest in the suit property of the plaintiff is also admitted by defendant in the WS though the defendant claimed that plaintiff executed registered GPA, gift and will in favour of his brother Pooran chand( examined as PW3) and Sh. Pooran Chand executed GPA, Agreement to sell, will, receipt and possession letter dt. 10.03.07 in favour of one Smt. Kamlesh. As claimed, Smt. Kamlesh further executed documents dt. 30.04.07 in favour of defendant No. 1 i.e. Agreement to sell, receipt and deed of will. The defendant further claimed that one of the LR of deceased Arjun Ram i.e Smt. Kaushlaya Devi has relinquished her share in favour of the plaintiff on 04.02.08 and on 16.02.08, plaintiff executed GPA, agreement to sell, receipt, letter of possession to defendant No. 1 and therefore defendant No. 1 became the owner of suit property. CS No. 116/14 10/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
14. The parties led their respective evidence. As noted, the defendant No. 1 is also claiming his rights in the suit property through the plaintiff only. The defendant No. 1 failed to answer the question as to when the defendant was already having right in the suit property by virtue of documents executed in his favour by Kamlesh and the plaintiff has no right, how the plaintiff claimed right, title or interest in suit property by virtue of documents dt. 16.02.08 executed by plaintiff. The defence of defendant appears to be vague and baseless. The defendant has not produced Smt. Kamlesh from whom, he claimed to have purchased the suit property to the reason best known to him. Plaintiff examined himself and deposed regarding his case and deposed during cross examination that his three sisters and brother have transfered their share of the suit property after the death of his father. Even otherwise, these documents were admitted by the defendant. He categorically deposed during cross examination that he never executed any will in his brother namely Pooran Chand and had never dispute with him; he never transfered the property in the name of his brother. The testimony of plaintiff in one way or other remained un impeached and uncontroverted. The most crusial witness namely Pooran Chand was examined as PW3 who categorically deposed that plaintiff is the absolute owner of the suit property and he never transfered the suit property to anybody at any time except the plaintiff. Pooran Chand further CS No. 116/14 11/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. deposed that documents filed by defendants are forged and fabricated. He also denied regarding pendency of any case between him and plaintiff and testimony of Pooran Chand also remained unimpeached. I have gone through the documents relied by defendants in support of contentions. The previous litigation between plaintiff and Pooran Chand is denied by both of them and defendants has not proved any settlement entered into between them in any proceedings as per law. The testimony of defendant / DW1 on the other hand totally shattered during cross examination as the documents relied by defendant in support of his ownership was not proved as per law and witness admitted that document Ex. DW 1/ 2 i.e. GPA dt. 30.06.00 and Ex. DW 1/ 3 i.e. GPA dt. 10.03.07 was not executed in his presence. It is noted that by virtue of these documents, the defendant claimed that plaintiff transfered the suit property in favour of Pooran Chand who further transfered the same to Smt. Kamlesh. The documents relied by defendant therefore in support of ownership is not proved at all as per law. Even none of the witness to the documents including the witness of the documents allegedly executed by Kamlesh in favour of defendant No. 1 are not examined or proved by the defendants and mere bald averments claimed is not sufficient to prove the contentions. As observed, the defendant No. 1 even failed the answer of relevant and basic question like name or person whose presence the transaction was done like Mullah Ji or Radhey Shyam. CS No. 116/14 12/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. DW1 admitted that he do not know who has purchased the stamp paper of execution of Ex. DW 1/ 4 i.e. documents dt. 30.04.07 stated to be executed by Smt Kamlesh in his favour or who has written this document, when this documents were written etc. The testimony of DW1 is neither reliable or sustainable or claim of the defendant No. 1 regarding purchase of the suit property as well as ownership appears to be without any basis and not sustainable.
The PWs has deposed regarding the facts of the case as well as relevant documents and all these documents are on record. In nut shell, the testimonies of PWs remained unimpeached and uncontroverted and there is no reason to disbelieve the testimonies of PWs. It is further proved from the testimonies of PWs that suit property was given to the defendants as licensee and license was terminated vide legal notice Ex. PW 1/3. The ratio of judgments reported as 2013(3) Civil Court Cases 242( P & H) , AIR 2002 Kerala 308 & II (2011) SLT 634 squarely applies in the facts of this case. Merely oral averments by defendants is not sufficient to prove the right, title or interest in the suit property. Infact the defendants have not produced or proved any documents in support of their contention.
15. I have gone through the documents relied by defendant No. 1 in support of contentions though these documents are not proved at all as per law. It is appropriate and relevant to note the relevant legal provisions and CS No. 116/14 13/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. authorities for proper examination 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 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 CS No. 116/14 14/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
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 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 CS No. 116/14 15/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
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 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 CS No. 116/14 16/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
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.
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 CS No. 116/14 17/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. 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 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 CS No. 116/14 18/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. 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 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 CS No. 116/14 19/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
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 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 CS No. 116/14 20/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. 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 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 CS No. 116/14 21/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. 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 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 CS No. 116/14 22/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
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 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 CS No. 116/14 23/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
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 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.
CS No. 116/14 24/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
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. It is settled that ownership and possession are two entirely different concepts. It necessarily follows that it is not only possible but also CS No. 116/14 25/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. permissible to transfer one without the other. In simple words it is permissible to transfer ownership without transferring possession. Similarly, it is also possible to transfer possession without transferring ownership. It is relevant to note here that in this case the ownership had been transferred alongwith possession to the plaintiff of the suit property in pursuance of the provisions of the Transfer of Property Act and the exeuction of the documents have been duly proved by the Pws.
21. 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 way of a deed of conveyance as defined under Section 54 of the Transfer of CS No. 116/14 26/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. 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 defendant by plaintiff.
22. This Court is conscious of the judgment of the Hon'ble High Court in the case of Sh. Ramesh Chand Vs. Suresh Chand reported in 188 (2012) DLT 538 in which the judgment in the case of Suraj Lamps (supra) was interpreted. In the case of Ramesh Chand (supra) the Hon'ble High Court was pleased to hold that right to possess immovable property arises not only from a complete ownership right but also by having a better title.
23. As discussed, defendant No. 1 cannot be considered having any right, title or interest in the suit property and documents relied by defendants are un registered only. The defendant No.1 cannot be considered having right, title or interest in the suit property. Section 53 A of the Transfer of Property Act, 1882 and Section 202 of the Contract Act, 1872 is not applicable for ownership of defendant No. 1 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 applicable in the facts of this case.
24. In the present case, the plaintiff is the owner of the suit property and there is nothing on record to infer that defendant no. 1 has any right, title or interest in the suit property. It is also proved that plaintiff has handed over CS No. 116/14 27/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. the suit property to the defendants as licensee and the license was terminated vide legal notice Ex. PW 1/3. Thus the only inference which can be drawn in view of the pleadings and evidence led is that the plaintiff is the owner of the suit property and is entitled to the possession of the same. As the plaintiff is the owner of the suit property, she is entitled for decree of possession as prayed in the suit. Issue No. I & III is decided in favour of the plaintiff and against the defendant whereas issue No. II is decided against the defendants.
Issue No. V: (V) Whether the plaintiff is entitled to a decree for permanent injunction as prayed for ? OPP
25. 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 the assistance CS No. 116/14 28/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. 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.
26. 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.
27. The plaintiff has prayed for restraining the defendant, agents, attorneys etc. from creating any third party interest in the suit property. As the defendants has no right, title or interest in the suit property, the plaintiff is entitled for grant of injunction as prayed in the suit. Issue No. V is CS No. 116/14 29/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. decided in favour of the plaintiff and against the defendants. The defendant, their agents, assigns, associates are restrained from creating any third party interest or parting with possession of the suit property. Issue no. IV: (IV) Whether the plaintiff is entitled to damages/ use and occupation charges at the rate of Rs. 500/ per day as well as electricity and water charges from the date of filing of the suit till the date of recovery of possession of the suit property at the rate of 18 % per annum :? OPP
28. In the case of Arya Orphanage Vs. Mr. Alfred G Wuerfel reported in MANU/DE/2446/2008, CS (OS) No. 2439/2001 decided on 27.11.2008, the Hon'ble High Court of Delhi was pleased to hold that mesne profits are to be determined on account wrongful continuation of occupation after termination of tenancy / license and the same should be computed at the rate which the property might have fetched at the relevant time.
In the case of M.C. Aggarawal Vs. Sahara India and Ors. reported in 183 (2011)DLT 105, the Hon'ble High Court of Delhi was pleased to reiterate the same principle and held that while claiming damages / mesne profits, a plaintiff has to prove the market rate of rent of similar properties in the locality.
29. The plaintiff has prayed for the damages/mesne profits @ Rs. 500/ CS No. 116/14 30/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. per day from the date of filing of the suit for using/enjoying the suit property unauthorizedly by the defendants. In the present matter, the plaintiff has not led any specific evidence in respect of the same. Plaintiff has simply pleaded and deposed that he was entitled to damages at the rate of Rs. 500/ per day after filing of the present suit. Hence, in the absence of any specific evidence regarding this aspect, it cannot be taken that the plaintiff is entitled to damages at the said rate. However, in the case of M.C. Aggarawal Vs. Sahara India (Supra), the Hon'ble High Court has been pleased to hold that in such circumstances, the court could take resort to the provisions of Section 57 and 114 of the Indian Evidence Act and grant appropriate relief. In the present matter, the suit property consisting second and third floor bearing No CPJII/41, New seelampur, Delhi53 as shown in the site plan Ex. PW1/1 comprising two room on the second floor alongwith latrine and bathroom. The suit property is being used for residential purpose. In the opinion of this Court, prayer for damages / mesne profits at the rate of Rs. 200/ per day ( Rs. 6,000/ per month) in respect of entire suit property is neither unreasonable nor unjustified. I am, therefore, inclined to grant damages / use and occupation charges to the plaintiff at the rate of Rs. 200/ per day ( Rs. 6,000/ PM).
30. In respect of the period to which the plaintiff is entitled to mesne profits, plaintiff has prayed for mesne profits from the date of filing of the CS No. 116/14 31/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. suit. Thus, plaintiff will be entitled to damages at the rate of Rs. 6,000/ per month from the date of filing of the suit till the date of gaining possession of the suit property. In respect of the claim towards interest on mesne profits, the Hon'ble High Court of Delhi in the case of Arya Orphanage (supra) was pleased to hold that interest is an integral part of mesne profits and therefore the same has to be allowed in the computation of mesne profits itself. Plaintiff would thus be entitled to grant of interest on mesne profits. I, therefore, grant interest to the plaintiff at the rate of 8% per annum on the mesne profits so granted from the date of filing of the suit till the date of gaining possession. This issue is, therefore, decided accordingly in favour of the plaintiff and against the defendants. Relief:
31. In view of the aforesaid discussions and findings, this court is of the considered opinion that plaintiff has proved his case and therefore, he is entitled for the following relief:
(i) The suit of the plaintiff is decreed qua relief of possession in favour of the plaintiff and against the defendants regarding suit property bearing No. CPJII/41, II & III Floors, New Seelampur, Delhi53 as shown in the site plan Ex. PW1/1.
(ii) Decree of permanent injunction is passed in favour of the plaintiff and against the defendant and the defendant, their agents, assigns, CS No. 116/14 32/33 Tara Chand V/s Brij Mohan & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. associates are restrained from creating any third party interest or parting with possession of the suit property bearing No. CPJII/41, II & III Floors, New Seelampur, Delhi53 as shown in the site plan Ex. PW1/1 except without due process of law.
(iii) The plaintiff is entitled for the decree of damages/mesne profits against the defendants @ Rs. 6,000/ per month from the date of filing of this suit till handing over the possession of the suit property.
(iv) The plaintiff is also entitled for cost of the suit.
32. Decree sheet be drawn accordingly after payment of deficient court fee.
33. File be consigned to record room after necessary compliance. Announced in open Court on this 17th day of August, 2015 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 116/14 33/33 Tara Chand V/s Brij Mohan & Ors.