Delhi High Court
Shri Arvindra Kumar Singh vs Smt. Hardayal Kaur And Ors. on 31 January, 2005
Equivalent citations: 117(2005)DLT417, 2005(80)DRJ1, (2005)140PLR16, AIR 2005 (NOC) 370 (DEL), 2005 A I H C 1758, (2005) 80 DRJ 1, (2005) 2 PUN LR 16, (2005) 32 ALLINDCAS 358 (DEL), (2005) 4 CIVLJ 880, (2006) 1 MARRILJ 588, (2005) 3 RECCIVR 124, (2005) 117 DLT 417
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT Pradeep Nandrajog, J.
1. IA No. 7245/2004 is the application filed by defendant No. 1 under Order 7 Rule 11 CPC praying for rejection of the plaint. Grounds on which rejection is prayed for are:
"a) That the plaintiff has not come to the Hon'ble Court with clean intention and has tried to mislead the court into believing that the plaintiff is the purchaser in possession for that property comprised in B-301, Okhla Industrial Area, Phase-1, New Delhi.
b) That the plaintiff claims to be the owner by virtue of an unregistered and deficiently stamped document of agreement to claim his title to the property which is not open in law to the plaintiff as the plaintiff has not claimed specific performance of the contract thereby due to have abandoned his right to claim the relief by virtue of provisions of Order 2 Rule 2 CPC. The suit, therefore, is liable to the rejected.
c) That the plaintiff relies on a basic document dated 04.04.2003 which was only an agreement to sale "inscribed" on a stamp paper of Rs. 10/- and not registered, thereby making the said document inadmissible on judicial record by virtue of the amended provisions of Section 17 of the Registration Act and correspondingly inviting the provisions of Section 53A of the Transfer of Properties Act (as Amendment) Act. The said two provisions prohibit any transaction involving transfer of interest without there being a registered document inscribed on a requisite stamp paper as per ad volurm rates applicable and section 53A of the Transfer of Property Act enacts a bar against a party seeking a permanency or otherwise of title on the basis of such a document even, assuming for the sake of arguments, the plaintiffs was inducted into portion of the property. The rigor of the said two provisions is writ large and apparent on record due to which the plaint is liable to be rejected straight away.
D. That the plaintiff relies upon a general Power of Attorney which has since been cancelled and according to which at best the plaintiff, as on 1st April, 2003 was entitled to have "distance possession" of the suit property as distinct from actual possession and distance possession only means possession without being in physical occupation of the property. The plaintiff cannot convert the said possession into actual real possession to seek any prohibitory or mandatory reliefs not open to him in law.
E. That the plaintiff has also filed a copy of the original lease deed which prohibits sale by the original allottee without prior sanction of the president of India and therefore, the documents got executed by the plaintiff fraudulently from the first defendant are liable to be cancelled and rejected as opposed to public policy as per Section 23 of the Contract Act.
F. That any transaction of agreeing to transfer property without being substituted on the Government record as owners is also not permitted and, therefore, is liable to be struck down and cancelled.
G. That the document of alleged bequeath being not in favor of a blood relative is also not binding and the alleged transaction was brought about without discharging liability of unearned increase to the extent to 50% of the said increase.
H. That the suit is without cause of action as the documents at best were executory in nature and not executed."
2. During arguments counsel for the application predicated rejection of the plaint only on the ground that agreement to sell relied upon by the plaintiff being unregistered and deficiently stamped, no claim could be based on said agreement.
3. Prayers made in the suit are as under:-
"(i) Pass a Decree of Permanent Injunction in favor of the Plaintiff and against the Defendant No. 1 to 8 thereby restraining Defendant No. 1 to 8, their agents, representatives, servants, attorneys, assignees or any other person acting for and on behalf of Defendant No. 1 to 8 from dispossessing the Plaintiff from the Property bearing No. B-301, Okhla Industrial Area, Phase I, New Delhi.
(ii) Pass a Decree of Permanent Injunction in favor of the Plaintiff and against the Defendant No. 1 to 8 thereby restraining Defendant No. 1 to 8, their agents, representatives, servants, attorneys, assignees or any other person acting for and on behalf of Defendant No. 1 to 8 from threatening the Plaintiff and his men or visiting the aforesaid property.
(iii) Pass a Decree of Mandatory Injunction in favor of the Plaintiff and against the Defendant No. 9 thereby directing the Defendant No. 9 to cancel the mutation of the property bearing No. B-301, Okhla Industrial Area Phase I, New Delhi being done in favor of Defendant Nos. 3 and 4."
4. For purposes of Order VII Rule 11, in context of application filed by the defendant, this court has to treat averments made in the plaint as true and correct and thereafter to determine whether the suit does not disclose any cause of action or is otherwise barred in law.
5. It is stated in the plaint that plaintiff purchased the suit property from defendant No. 1 after paying entire sale consideration. It is stated that defendant No. 1 represented that her late husband Sh. Surjit Singh, the perpetual lessee under DDA had executed a Will dated 16.10.2001 bequeathing the suit property to her. Defendants No. 2 to 5 are the children of defendant No. 1. It is stated that after receiving the full sale consideration, defendant No. 1 issued a receipt dated 4.4.2003. Prior thereto, she executed a registered general power of attorney dated 1.4.2003. It is stated that defendant No. 1 executed an agreement to sell dated 4.4.2003 and simultaneously handed over possession of the property. It is stated that defendant No. 1 had inducted a tenant in a part of the property and on instructions of defendant No. 1 to attorn to the plaintiff, tenant started paying rent to the plaintiff in respect of the basement of the property, being under tenancy. It is stated that at the time of execution of the agreement to sell and receipt of full sale consideration, possession of ground, first and second floor was handed over to the plaintiff and plaintiff continues to be in possession thereof.
6. It is stated in the plaint that thereafter, defendants contrived to have the property mutated in names of defendants No. 3 and 4. It is averred that defendant No. 7 claims to have purchased the property from defendants No. 1 to 6. He Along with defendant No. 8 are stated to have attempted to dis-possess the plaintiff from the suit property.
7. Sections 17(1A) of the Registration Act, 1908 reads as under:-
"(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A."
8. Learned counsel for the defendant would, therefore, be correct in law in so far it is urged that plaintiff cannot sue under the agreement to sell in question, for the simple reason that the said document having been executed after amendment to the Registration Act, 1908 by Act No. 48/2001, required registration and not being registered, plaintiff cannot rely upon Section 53A of the Transfer of Property Act, 1882.
9. However, it cannot be lost sight of that the plaintiff pleads actual possession of the suit property save and except the basement constructive possession whereof is pleaded, by and under express consent of defendants No. 1 to 6. Possession under consent aforesaid is claimed with effect from 4.4.2003. Threat to possession is stated to have arisen in October, 2003. Physical attempt to dis-possess has been stated to be in June, 2004.
10. For the purposes of deciding the application at hand, this court would have to treat the plaintiff being in settled possession. Whatever be the legal consequences of the agreement in question being not registered, defendants have to take recourse to procedure established by law to regain possession. Position of the plaintiff would be better than that of a tresspasser who comes into settled possession over a sufficiently long period. Even such a tresspasser, i.e. a tresspasser who goes into settled possession and possession being not transitory, cannot be unsettled/dispossessed by physical force. Possession of such a tresspasser has to be regained by procedure established by law (See Rame Gowda v. M. Varadappa Naidu).
11. Plaint cannot be rejected at this stage. Prayers 1 and 2 as noted above, in view of the averments made in the plaint require a trial. Prima-facie, plaintiff may have no case as far as prayer No. 3 is concerned for the reason that said prayer would be based on the agreement to sell relied upon. But that would be a matter to be considered while framing issues.
12. IA No. 7245/2004 is dismissed.
13. No costs.