Delhi District Court
The Suit Of The vs Joseph Dias Of Bombay (Respondent). The on 27 April, 2007
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IN THE COURT OF SH. SANJAY GARG: ADDL. DISTTJUDGE
KKD COURTS: SHAHDRA: DELHI :
RCA No.26/06
DATE OF ARGUMENTS : 27.4.2007
DATE OF ORDER : 27.4.2007
Smt. Savitri Devi W/o Sh. Kishan Chand
R/o H.No. 627/3-A-1, Patel Gali,
Vishwas Nagar, Shahdra,
Delhi - 110032
VERSUS
1. Sh. Anil Kumar S/o Sh. Kishan Chand
2. Sh. Narender Kumar S/o Sh. Kishan Chand
R/o H.No. 627/3-A/1, Patel Gali,
Vishwas Nagar, Shahdra,
Delhi - 110032
ORDER
1. The suit of the appellant for permanent and mandatory injunction was got dismissed by the Trial Court vide Judgement dt. 31.5.2006. Agreeived with this Order, this appeal has been preferred. Respondents filed appearance after service of the notice and contested this appeal.
2. The brief facts relevant to understand the dispute between the parties as enumerate by both the parties in their pleading are discussed below :-
3. The brief facts as enumerated by both the parties before the Trial Court 2 and to understand the dispute between both the parties are as follows :-
That appellant as plaintiff in her suit has pleaded that she married Sh. Kishan Chand, father of the respondents on 6.2.72. The first wife of Sh. Kishan Chand who was mother of the respondents Ram Devi has died ; that her family gifted her 20 tolas of gold ornaments which she kept with her. Kishan Chand was an Officer with Northern Railway ; that the house at Darya Ganj was only 50 Sq. Yards. In the year 1977, she with the help of her husband purchased 200 Sq. yards land in Vishwas Nagar (hereinafter called suit property) from Babu Lal ; that all the necessary transfer documents were registered with Sub Registrar Seelampur on 6.1.87 ; that the entire consideration for the purpose of the property was paid by her ; that construction was raised by her by selling jewellery and with the financial assistance from her husband Sh. Kishan Chand ; that since the Property in Daryaganj was inadequate, respondents requested her to permit them to live in some portion of the property at Vishwas Nagar ; that respondents were allowed to live in the property in the year 1992 on a monthly licence fee of Rs. 2,000/- & R-2 was allowed to live in the property on a monthly licence fee of Rs. 1200/- ; that thereafter, licence fee payable by R-1 & R-2 was enhanced to Rs. 3,000/- & Rs. 2,000/- respectively ; that R-1 was occupying double storey separate portion and R-2 was occupying single storey portion in the said property ; that respondents stopped paying licence 3 fee from September 1998 onwards and started creating nuisance by maltreating and misbehaving with the appellant ; that respondents refused to pay the arrears of the licence fee and appellant asked them to vacate the respective portions in their occupation but they refused to vacate the premises. Alleging these facts, appellant filed a suit for mandatory injunction seeking directions to the respondents to make payments of the licence fee of their respective portions in their occupation and mandatory injunction seeking directions to the respondents to vacate and hand over the peaceful possession of the property in their possession.
4. R-1 as Defendant No. 1 filed W/S taking preliminary objections that the suit is not maintainable as the funds for purchase of the suit property were contributed jointly by him, his father Sh. Kishan Chand and his brother ; that appellant Savitri Devi was uneducated and was totally dependent upon their father and has no legal right over this property ; that property No. 1442 Gali Gondni Wali, Kala Mehal, Jama Masjid, Daryaganj, which was on the name of their mother Smt. Ram Devi, was sold and the entire consideration was used in raising the construction on the suit property ; On merits it has stated that appellant was brought to their house after demise of their mother Smt. Ram Devi and custom of second marriage was solemnised ; that his father Kishan Chand had to pay the parents of the appellant for marrying her as a wife ; that the suit property was purchased with their contributions and 4 contribution of their father Sh. Kishan Chand ; that the plot was purchased in the year 1981 and construction was started in 1984. It is denied that he approached the appellant to allow him for living in some portion of the property on a monthly licence of Rs. 2,000/- and in March 1992, the licence fee was enhanced to Rs. 3,000/- p.m. ; It is stated that respondent is residing in the suit property as an owner.
5. R-2 as Defendant No. 2 filed separate written statement taking similar preliminary objections as taken by R-1. In addition, he stated that this suit is an off shoot to the suit filed by Legal heirs of Sh. Kishan Chand for declaration permanent and mandatory injunction having No. 263/01 pending in the Court of Sh. Pawan Kumar Jain, Civil Judge. On merits, R- 2 stated that suit property was purchased from the contributions made by him, his brother and their father ; that appellant has no money to purchase the suit property. It is denied that he was residing in the suit property on a licence fee of Rs. 1200/- which was subsequently enhanced to Rs. 2,000/-. It is stated that the appellant had two illegitimate sons and one daughter are making efforts to grab the suit property.
6. Appellant filed separate replications to the written submissions of both the respondents, reiterating her plea taken in the suit and denying the contentions raised by respondents.
7. On the pleadings of the parties, following issues were framed by the Ld. Trial Court on 4.1.2002 :
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1. Whether the suit property has been properly valued for the purpose of court fee, if not, then effect thereof? OPP
2. Whether the plaintiff is entitled to the suit of Permanent injunction as prayed for? OPP
3. Whether the plaintiff is entitle to suit for mandatory injunction as prayed for? OPP
8. Both the parties led evidence to discharge the onus of proving the various issues. Issue No. 2 & 3 were decided by the Trial Court against the appellant and without giving any findings on Issue No. 1, suit of the appellant was dismissed.
9. Heard arguments of Ld. Counsels and perused the case file and the judgements relied upon by both the parties.
10. The Ld. Counsel Sh. R.K.Sharma for the appellant submitted that the Trial Court erred in not appreciating the facts that only from 2001 onwards the transfer documents are required to be registered compulsorily and before that the documents filed on record by appellant to prove his title establish her as owner of the suit property. The Ld. Counsel argued that appellant had purchased the suit property from Sh. Babu Lal on consideration of Rs. 40,000/- . The receipt of which was duly registered with Sub Registrar Krishna Nagar, Delhi. The Ld. Counsel further submitted that though no findings were given by the Trial Court in Issue No. 1 but the appellant Court may give findings on issue No. 1 to finally resolve the dispute between the parties.
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11. The Ld. Counsel Sh. P.K. Khanna for R-1 submitted that the appellant failed to establish her title over the suit property and the Trial Court rightly decide issue No. 2 & 3 against her. The Ld. Counsel also agreed that to finally resolve the dispute between the parties, issue No. 1 be also disposed at this stage.
12. The Ld. Counsel Sh. P.S.Tomar for R-2 submitted that respondent is the owner of property and the Ld. Trial Court rightly refused to acknowledge the appellant as owner of the suit property. The Ld. Counsel further argued that mere agreement to sell does not create title and sale deed is must. The Ld. Counsel also agreed that Issue No. 1 be decided by the appellant court at this stage.
13. All the three counsels filed written submissions. Perused the case file and the judgments relied upon by the counsels.
14. Issue No. 1 is taken first as no findings has come from the Trial Court on this issue. The appellant claiming herself to be the owner of the suit property, has sought directions against the respondents to evict the portion of the suit property in the possession and to pay the arrears of licence fee which they are liable to pay by way of mandatory injunction. And by way of permanent injunction, appellant has sought directions to restrain respondents or their agents from parting with possession, sale or alienating the portion of the suit properties in their possession. The Ld. Counsel for the respondent has contented that suit of the appellant is 7 required to be for recovery and possession and under the garb of mandatory injunction. the appellant cannot be allowed to seek relief of possession and recovery against the respondents.
15. The relevant point at this stage requires to be considered is that can under the circumstances of this case, the appellant is within her rights seeking directions in the form of suit for mandatory injunction against the respondents to hand over the peaceful possession of the portion of the suit property in their possession or appellant was required to file suit for recovery to get the relief of possession. Appellant is claiming herself to be the owner of the suit property and respondents are her step sons. It stands admitted by the respondents that title documents of the property are on the name of the appellant, the only plea raised by respondents is that the property was purchased by the contributions made by them and their Late father Sh. Kishan Chand and appellant had no individual resources or fund for the sale consideration of the property. R-2 while deposing as DW1A has stated that property No. 1442, Gali Gondni Wali, Kala Mahal, Daryaganj which was on the name of their mother was sold by their father and their father as Karta of HUF purchased the suit property but under the influence of appellant got the documents executed on appellant's name. Respondents has failed to bring on record any documentary proof to support their contentions.
16. The right of the owner to seek directions against his/her relatives to 8 vacate the premises by way of mandatory injunction was discussed by the Bombay High Court in AIR1995 Bombay 201, the case titled Conard Dias of Bombay (Appellant) Vs. Joseph Dias of Bombay (Respondent). The relevant para of the Judgement is reproduced here as follows :-
" It was argued that the plaintiff should have filed a suit for possession and not for injunction. It is true that normally a person who is not in possession of the property should file a suit for possession. But in the present case the plaintiff nowhere says that he is not in possession of the suit premises. His case is that he and his son are in joint possession of the suit premises. I have already shown that even when he was a boy the appellant- son was residing with the father and continued to stay in the suit premises even after the plaintiff was transferred to Bangalore. It is also in evidence that plaintiff has been visiting Bombay and residing in the suit house every year. Since the relationship between the parties is one of father and son and they are residing together. It is a case of joint possession even though plaintiff has been subsequently 9 transferred to Bangalore. The Plaintiff has nowhere admitted that he has been dispossessed or that he has lost possession. Hence, in the circumstances since the plaintiff is held to be in joint possession alongwith the defendant and he has never lost possession, he cannot file a suit for possession. Therefore, the present frame of suit asking for an injunction against the defendant cannot be said to be bad. Since, defendant has no legal right to continue to stay in the premises, plaintiff has advisedly asked the relief of injunction which is perfectly and legally permissible. Hence, I find no merit in the contention that the suit is not maintainable.
17. In view of the aforesaid reasons, the appellant rightly valued the suit for mandatory injunction seeking directions to the respondents to hand over the possession of the suit premises out of the suit premises in their possession.
18. The other relief sought by appellant under garb of mandatory injunction is the recovery of the alleged licence fee which as per appellant respondents has not paid. Appellant has sought directions against the R-1 & R-2 to pay licence fee @ Rs. 3,000/- & Rs. 2,000/- respectively p.m. 10 from the date of filing of this suit till final decision. It is clear case of recovery by appellant against the respondents to which appellant as plaintiff was liable to pay court fee. But appellant has not paid any court fee with the Trial Court. As per Law, even at this stage, appellant can be directed to deposit the requisit court fee. Findings on remaining issues is yet to be given. Appellant is directed to deposit the requisit court fee. The findings on the remaining issues if any in her favour will only be enforced, if requisit court fee stands deposited.
19. Other relief sought by appellant is for permanent injunction. The said relief has been property valued by the petitioner.
20. In view of the aforesaid reasons, Issue No. 1 is decided in favour of the appellant and against the respondents.
21. The Trial Court decided Issue No. 2 & 3 against the appellant holding that appellant failed to establish her right title on interest over the suit property. It is admitted case of the respondents that title documents of the suit property which are filed on record is Ex. 1/A (General Power Of Attorney), Mark A (Agreement for Sale) Ex. 4A, (receipt for the sum of Rs. 40,000/-) which are on the name of the appellant. As discussed earlier while deciding Issue No. 1, the plea of the respondents is that the suit property was purchased by their Late Father from his earnings and from HUF funds on the name of the appellant. The other plea of the respondents is that Sh. Kali Charan their Late father sold the property at 11 Darya Ganj owned by him and out of sale proceeds of this property, he purchased the suit property.
22. To discharge the burden of proving Issue No. 1 & 2, appellant examined five witnesses including herself. PW4 Smt. Prem Lata, Head Clerk, Sub Registrar Seelampur proved the cash receipts Ex. PW4/A. PW5 Sh. Ram Pal Singh is stated to be one of the attesting witnesses to the transfer documents of the suit property on the name of the appellant. PW2 Sh. Goverdhan Dass & PW3 Sh. Vijay Pal Singh deposed that appellant purchased the suit property from her own funds. Both respondents led evidence in their defence. R-1 examined five witnesses. DW1 Sh. Tukki Ram, Zonal Inspector. Shahdra Zone, MCD produced the record pertaining to the House Tax Assessments of the suit property and the application moved by appellant for mutation of the suit property on her name. DW2 Sh. G.R.Sagar Head Clerk, Delhi Jal Board, deposed about the water connection, on the suit property, on the name of the appellant and her application dt. 1.9.83. DW3 Sh. Ajeet Kumar Commercial Officer, BSES, KKD Courts, produced the record pertaining to sanction of the electricity connection at the suit property on the name of the appellant. This witness filed copies of the affidavit and other documents filed by appellant alongwith her application for sanction of electricity connection at the suit property. As per Ex. DW3/2 which is General Power of Attorney in the name of the appellant, it is stated that appellant is the 12 owner of 100 Sq. Yards in the Property No. 46A Block No. 10, Vishwas Nagar, Shahdra, which is the suit property. It is relevant to mention here that the suit property is measuring 200 Sq. Yards whereas in this General Power of Attorney DW3/2 appellant has stated herself to be the owner of only 100 Sq. yards. Appellant has denied to have executed these documents. As per the record produced by DW3, the electricity connection was got sanctioned on the name of the appellant at the suit property on the basis of these documents submitted by her. Even if the documents produced by DW3 are assumed to be correct, it cannot be said that the title documents filed on record by appellant which are Ex. PW1/A & Ex. PW4/A are either forged or requires to be ignored. It is relevant to mention here that receipt Ex. PW4/A stands duly registered with the Sub Registrar on 6.1.87. For the sake of the arguments, even if, it is presumed that the documents Ex. DW3/2 & Ex. DW3/5 were filed by appellant with the Electricity Deptt to procure electricity connection for the suit property, these documents are required to be ignored infront of the documents Ex. PW1/A, Ex. Mark A & Ex. PW4/A.
23. DW4 is R-1, DW5 is Moti Lal who is stated to have raised construction over the suit property. He deposed to have received the money for construction over 40 Sq. Yards of the suit property from R-1,. R-2 also led evidence and examined himself as DW1A. DW1B is the brother-in-law (Jija) of the respondents. He supported the plea of the 13 respondents.
24. In addition to testimonies of various witnesses examined by both the parties, to support their pleadings, documentary evidence has only been led by appellant. As already discussed, Ex. PW1/A , Ex. Mark A & Ex. PW4/A are the documents which the appellant claims to be the title documents of the suit property in her favour. The Ld. Counsel for the respondent has contended that in the absence of Sale Deed, the Power of Attorney, the Agreement for Sale and the receipt does not confer ownership on the appellant for the suit property. The Ld. Counsel submitted that the Ld. Trial Court rightly held that these documents confer no right title or interest in respect of the suit property on the appellant.
25. Section 53-A 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 53-A 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 14 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 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 53-A 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 53-A, 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 15 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 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 res-integra.
26. Against this order of the High Court in J.C. Mehra (Supra) case a petition for special leave to appeal (Civil) No. 14088/2003 was preferred before the Supreme Court of India. This special leave petition was dismissed on 18.8.03.
27. The concept of power of attorney sales was discussed at length in 16 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 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 17 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 -----.
28. In view of the findings of our High Court in Asha Jain (Supra), the documents Ex. PW1/A, Ex. Mark A & Ex. PW4/A confer title of the suit property to the appellant. Whereas respondent has failed to prove that either the suit property was joint family property or they are having better title on the suit property than appellant. Thereby, appellant being the owner of the suit property has right to seek directions against the respondents to hand over peaceful possession of the portion of the suit property in their possession to her. Regarding the relief of recovery of arrears of licence fee from the respondents, except the statement of appellant as PW1, no documentary evidence has come on record to establish that both respondents were residing in the suit property as licensee by paying licence fee of Rs. 3,000/- & Rs. 2,000/- respectively. Similarly, appellant being held to be owner of the suit property is also entitled to relief of permanent injunction against the respondents restraining them, their wives, agents from alienating or selling or parting with possession of the suit property in their possession.
29. Accordingly, Issue No. 2 is decided in favour of the appellant and against the respondents. Issue No. 3 qua possession of the premises in occupation of R-2 & R-3, out of the suit premises, is decided in favour of 18 the appellant and against the respondents. Whereas the relief qua recovery of arrears of licence fee is decided against the appellant.
30. Due to the reason discussed above, the Judgment of the Trial Court dt. 31.5.2006 is set aside. The appeal is admitted. The suit of the appellant is decreed. The relief given to appellant will only be enforceable after deposit of the requisit Court Fee on the amount of recovery sought by him.
31. The Trial Court Record be sent back alongwith copy of this Order. Appeal file be consigned to R/R. ANNOUNCED IN THE OPEN COURT (SANJAY GARG) ON 27.4.2007 ADDL DISTT. JUDGE :
KKD COURTS: SHAHDRA DELHI:
(ONE CC ATTACHED) 19