Delhi District Court
Smt Anju Bahl vs Sh Krishna on 5 July, 2022
IN THE COURT OF SH SURENDER MOHIT SINGH,
ADDITIONAL DISTRICT JUDGE-04 NORTH : ROHINI
COURTS : DELHI
RCA DJ NO.61/18
CNR No. DLNT01-005128-2018
SMT ANJU BAHL
W/O SH AMIT KUMAR BAHL
R/O H NO. 264, GROUND FLOOR
G-30, SECTOR 3, ROHINI DELHI-110085
............Appellant
Versus
1. SH KRISHNA
W/O AZAD SINGH
2. AZAD SINGH
S/O BHAGWAN SINGH
BOTH R/O PLOT NO. G-211(212)
KHASRA NO. 74/16/1
VILLAGE BARWALA, NAVEEN VIHAR
BEGUMPUR, DELHI
ALSO AT
VILLAGE MEHLANA,
DISTT. SONIPAT
HARYANA
........Respondents
Date of Institution : 28.05.2018
Date of Order : 05.07.2022
Final Order : Dismissed
JUDGMENT
1. Appellant/plaintiff has filed the present appeal under Section 96 CPC against the impugned judgment/decree dated 28.04.2018 passed by the court of Ms Vandana, Ld SCJ/RC, North, Rohini Courts, Delhi in the suit no. 35386/2016 titled as RCA DJ NO.61/18 Anju Behl v. Krishna & Ors 1 of 11 Anju Bahl v. Krishna & Anr. whereby suit of the appellant/plaintiff was dismissed. The appellant and respondents are to be referred as plaintiff and defendants in the present appeal.
2. Brief facts relevant for disposal of the present appeal are that the plaintiff had purchased the property bearing no. G-208, measuring 48 sq yards out of total 75 sq yards of khasra no. 74/16/1, situated in the area of village Barwala, Abadi known as Naveen Vihar, Begumpur, Delhi (hereinafter referred to as suit property) from defendant no. 2 vide GPA, Agreement to sell, Affidavit, Receipt, Possession letter, Will etc all dated 29.07.2011 and the defendant no. 1 had witnessed the said deal and defendants got mentioned the number of suit property as G-211 instead of G-208 upon the property documents.
Further, in the month of October, 2012, the plaintiff wanted to sell the suit property to some other person but came to know that the property number was wrongly mentioned in the documents. In this regard, the plaintiff requested the defendants for rectification of the said property documents but defendants tried to avoid the same. On 17.11.2012, defendant no. 1 called the plaintiff to her house alongwith the original property documents. Upon visiting, the defendant no. 1 asked for original property documents to the plaintiff and when plaintiff handed over the same to defendant no 1, she rushed into her room and asked the plaintiff to get out of her house with threatened her of dire consequences and did not return the said documents to the plaintiff. Plaintiff requested them several times to return the original documents but all in vain. Thereafter, plaintiff filed a RCA DJ NO.61/18 Anju Behl v. Krishna & Ors 2 of 11 police complaint as DD No. 67-B in PS S B Dairy on 17.11.2012 but no action was taken by police officials.
Therefore, plaintiff filed the suit in the trial court for mandatory and permanent injunction against the defendants in regard to the suit property.
3. The defendants filed their joint written statement in the ld trial court and submitted in para no. 6 of preliminary objections that revocation of agreement to sell had already been executed between the parties on 13.11.2012 in respect of property bearing no. G-211 measuring 48 sq yards, our of khasra no. 74/16/1, Village Barwala, Abadi Naveen Vihar, Begumpur, Delhi. However, it is pertinent to mention here that in para 3 of reply on merits of WS it is submitted that plaintiff had revoked the sale transaction on 13.11.2012 in respect of property no. G-208 out of Khasra no. 74/16/1, Village Barwala, Abadi NaveenVihar, Begumpur, Delhi and returned the original documents of the said property to the defendant no.1. All other allegations were denied.
4. The plaintiff in her replication in which all the averments made in the plaint were reiterated and submissions made in WS were denied.
5. From the pleadings following issues were framed on 26.09.2013 :-
1. Whether the plaintiff is entitled for a decree of mandatory injunction as prayed for ? (OPP).
2. Whether the plaintiff is entitled to a decree of permanent injunction prayed for? (OPP)
3. Relief.
RCA DJ NO.61/18 Anju Behl v. Krishna & Ors 3 of 11
6. Thereafter, parties led their evidence and after conclusion of the trial, the Ld. Trial court has dismissed the suit of the plaintiff.
7. Feeling aggrieved by the impugned judgment, the plaintiff has filed the present appeal on the following contentions/grounds :-
i. That the ld. Trial court has wrongly appreciated the judgment passed by Hon'ble Supreme Court in Suraj Lamp and Industries Pvt Ltd v. State of Haryana, {2012 (1) SCC 656} as same is not applicable to the facts and circumstances of this case. Further legality of documents is not questioned by the defendants.
ii. That the ld. Trial Court wrongly observed that the plaintiff was not in possession of the suit property. The ld Trial Court had granted stay in favour of the plaintiff and protected the possession of the suit property vide order dated 21.01.2013 and same was never challenged by the defendants.
8. It has been contended by counsel for the plaintiff that the Ld. Trial Court has patently erroneous in passing the impugned judgment and decree is liable to be stayed during the pendency of the present appeal. Hence, the judgment passed by ld. Trial Court is liable to be set aside on the abovesaid grounds.
9. Per contra, Ld counsel for the defendants has concluded that the findings and observations made by ld. Trial Court are true and correct. Therefore, the Ld Trial court has rightly passed impugned judgment and it did not suffers from any illegality and the appeal being devoid of merits deserve to be dismissed.
RCA DJ NO.61/18 Anju Behl v. Krishna & Ors 4 of 11
10. I have heard the ld. counsel for the parties and perused the entire record.
11. As to the first contention raised by the plaintiff, there is no dispute that legality of documents is a question of law. Further, legality of the documents can be seen by court and it cannot be waived off by the parties themselves. The question of law has to be decided on the basis of settled laws/rules/regulations and on the basis of well settled legal precedents of Hon'ble Supreme Court and various High Courts. In the present case, the plaintiff claims herself to be a lawful owner of the suit property on the basis of GPA/agreement to sell/Affidavit/possession letter/Will/etc which are neither registered nor notarised.
Section 17 (1) (b) of the Indian Registration Act, 1908 reads as under:-
".
.
other non-testamentary 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....."
Section 49 of the Indian Registration Act, 1908 reads as under:- :
"Effect of non-registration of documents required to be registered :--
No document required by section 17[or by any provision of the Transfer of Property Act, 1882], to be registered shall---
(a) affect any immovable property comprised therein, or ....
....
RCA DJ NO.61/18 Anju Behl v. Krishna & Ors 5 of 11
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.............."
From the perusal of the abovesaid provisions of law, it is clear that whenever an immovable property of value of one hundred rupees and upwards is transferred from one living person to another living person for the very first time to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest then the registration is mandatory and if not get registered then that document shall not be received as evidence of any transaction affecting such property except when the suit is under Specific Relief Act for specific performance or as evidence of any collateral transaction.
In Sunil Kapoor v. Himmat Singh & Ors {CM (M) No. 1215/2007}, the hon'ble High Court of Delhi held that :-
"A mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement".
In MAC Associates v. S.P. Singh Chandel & Anr. {RFA No. 518/2011}, the Hon'ble High Court of Delhi held that :-
"....Even if a person is put in possession of property through an agreement to sell, he cannot protect his possession on the pretext of part performance under Section 53-A of the Transfer of Property Act, 1882, unless such an agreement is a registered document......"
Recently also, in RFA No. 279/2018 dated 21.03.2018, the Hon'ble High Court of Delhi held that :-
"...............the benefit of an agreement to sell in the nature of part performance could not be RCA DJ NO.61/18 Anju Behl v. Krishna & Ors 6 of 11 given unless the agreement to sell was stamped for the value of 90% of the sale consideration of the property and was also registered before the Sub-Registrar ....... Section 53-A of the Transfer of Property Act, must be duly stamped and registered.........."
In Phool Singh & Anr v. Amit Kumar & Ors. {Civil Revision No. 2022/2022 (O&M) decided on 26.05.2022, the hon'ble High Court of Punjab and Haryana held that :-
"............The agreement to sell dated 03.09.2015 is also an unregistered document whereunder possession was purportedly handed over to the plaintiff-petitioners. Such an unregistered document cannot be accepted being in contravention of the provisions of the Registration Act, 1908......."
In the present case, the plaintiff relied upon some photocopies of documents i.e. Mark A (colly) dated 29.07.2011 which are neither registered nor attested by notary public. On perusal of these documents it reveals that all the documents bearing the property no. G-211 measuring 48 sq yards, out of khasra no. 74/16/1, Village Barwala, Abadi Naveen Vihar, Begumpur, Delhi.
In view of the above, I am of the view that ld. Trial Court has rightly observed that as per the judgment of Suraj Lamp (Supra), the GPA/ Agreement to sell/ Affidavit/ possession letter/Will/etc are not transfer of sales and such transactions cannot be treated as completed transfers or conveyance. As to the retrospective application of law is concerned, if GPA sells transaction are entered before the date of Suraj Lamp (Supra) judgment, they may be relied upon to apply for regularisation of allotments/leases of developed authorities.
RCA DJ NO.61/18 Anju Behl v. Krishna & Ors 7 of 11 Hence, in the absence of any valid documents of transferring the ownership, I am of the considered view that this contention is devoid of merits and deserves to be dismissed and is hereby dismissed.
12. As to the second contention raised by the appellant that ld. Trial Court has wrongly observed that plaintiff was not in possession of suit property. The order of ld. Trial Court dated 21.01.2013 reads as under:-
"....in the given circumstances and at the request of plaintiff, it is directed that till the next date of hearing, the defendants and their representatives shall not dispossess the plaintiff from the suit property bearing no. G-208, measuring 48 sq yards out of total area of 75 sq yards, out of khasra no. 74/16/1, situated in area of Village Barwala, Abadi known as Naveen Vihar, Begumpur, Delhi and shall not create third party interest in the suit property.
Renotify for further proceedings on
29.05.2013...."
On perusal of aforesaid order, it reveals that the application for grant of injunction was not decided on merits and plaintiff was granted protection that he shall not be dispossessed by the defendants and their representatives from the suit property till the next date of hearing and not till the final disposal of the suit. Further, giving the protection till the next date of hearing does not mean that plaintiff has proved her case qua possession of the suit property.
Further PW2 namely Anita rebutted the version of the plaintiff by deposing that plaintiff is not residing at suit property i.e. property bearing no. G-208, measuring 48 sq yards out of total area of 75 sq yards, out of khasra no. 74/16/1, situated in area of Village Barwala, Abadi known as Naveen Vihar, RCA DJ NO.61/18 Anju Behl v. Krishna & Ors 8 of 11 Begumpur, Delhi. DW1 namely Smt Krishna also deposed that she has never sold the suit property i.e. property bearing no. G- 208, measuring 48 sq yards out of total area of 75 sq yards, out of khasra no. 74/16/1, situated in area of Village Barwala, Abadi known as Naveen Vihar, Begumpur, Delhi to plaintiff. She further deposed that plaintiff is neither the owner nor in possession of the suit property i.e. G-208 nor of G-211.
DW2 namely Smt Maya also deposed that defendant no. 1 is residing at the suit property. The address of the suit property is G-208 where the defendant no. 1 is residing. DW2 further deposed that she has never seen the ownership documents of defendant no. 1 about the suit property i.e. G-208, measuring 48 sq yards out of total area of 75 sq yards, out of khasra no. 74/16/1, situated in area of Village Barwala, Abadi known as Naveen Vihar, Begumpur, Delhi however she deposed that defendant no. 1 is owner of the suit property as she is residing at the suit property.
DW3 namely Sh Azad Singh, in consistence with testimonies of DW1 and DW2, deposed that suit property bearing no. G-208, measuring 48 sq yards out of total area of 75 sq yards, out of khasra no. 74/16/1, situated in area of Village Barwala, Abadi known as Naveen Vihar, Begumpur, Delhi is in the name of her wife i.e. defendant no.1 (krishna). He further deposed that he sold the property bearing no. G-211 and not G-208. He deposed that the suit property i.e. G-208 is in the possession of defendant no. 1 and 2 since 13.11.2012. He deposed that he never executed the alleged title documents of property bearing no. G- 208, measuring 48 sq yards out of total area of 75 sq yards, out of khasra no. 74/16/1, situated in area of Village Barwala, Abadi RCA DJ NO.61/18 Anju Behl v. Krishna & Ors 9 of 11 known as Naveen Vihar, Begumpur, Delhi. He further deposed that the alleged title documents (GPA/ Agreement to sell/ Affidavit/ possession letter/ Will/ etc) dated 29.07.2011 are pertaining to the property bearing no. G-211 however the said transaction was revoked vide revocation agreement to sell dated 13.11.2012. The revocation document is mark A (colly). On perusal of this revocation document dated 13.11.2012, it reveals that the revocation/cancellation of GPA sale dated 29.07.2011 qua property bearing no. G-208, measuring 48 sq yards out of total area of 75 sq yards, out of khasra no. 74/16/1, situated in area of Village Barwala, Abadi known as Naveen Vihar, Begumpur, Delhi instead of property bearing no. G-211.
Both the defendants in their testimonies consistently deposed that the documents executed on dated 29.07.2011 were revoked in consideration of Rs.3,50,000/- to the plaintiff and the said amount was transferred by way of cheque. Even otherwise, if the said document of revocation dated 13.11.2012 cannot be relied upon as argued by the ld counsel for the plaintiff, then also the plaintiff has failed to prove her case as she has no legal documents on record to prove herself as lawful owner. Further she has also failed to prove her case qua possession of the suit property bearing no. G-208, measuring 48 sq yards out of total area of 75 sq yards, out of khasra no. 74/16/1, situated in area of Village Barwala, Abadi known as Naveen Vihar, Begumpur, Delhi. The fact that defendant no. 2 intentionally and deliberately with some ulterior motive cheated the plaintiff and got mentioned the number of property no. G-211 instead of original and actual no i.e. G-208 is not believable as plaintiff herself deposed that RCA DJ NO.61/18 Anju Behl v. Krishna & Ors 10 of 11 she is a graduate person and it is not the case of the plaintiff that she was forced to sign the blank documents.
On perusal of all the documents executed on 29.07.2011, they were signed by the plaintiff and she had not denied her signature on the aforesaid documents bearing property no. G-211. Further, it is interesting to note that the aforesaid documents were executed on 29.07.2011 however plaintiff came to know that defendant no. 2 has sold the property no. G-211 instead of G-208 in the month of October, 2012. The plaintiff being a graduate person failed to explain how can it be believed that she had not read the property documents before signing the same. She has not explained this fact either in the pleadings or in the evidence. Hence, I am of the considered view that this contention is also devoid of merits and deserves to be dismissed and is hereby dismissed.
16. From the above discussion, I am of the opinion that the present appeal is devoid of merits and deserves to be dismissed and is hereby dismissed.
Decree sheet be prepared accordingly.
Trial Court Record be sent back alongwith copy of this judgment.
Appeal file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT, On 05.07.2022.
(Surender Mohit Singh) ADJ-04, North District, Rohini Courts, Delhi RCA DJ NO.61/18 Anju Behl v. Krishna & Ors 11 of 11