Delhi District Court
Shah Mohammad vs Talat Munir on 21 May, 2019
IN THE COURT OF SHRI NARESH KUMAR LAKA
ADDITIONAL DISTRICT JUDGE - 03, SOUTH EAST,
SAKET COURTS, NEW DELHI
CS No.9956/16
In the matter of:
Shah Mohammad
S/o. Late Rasool Baxh
R/o. D262, Abul Fazal Enclave,
Jamia Nagar, New Delhi25
....... Plaintiff
vs.
1. Talat Munir
S/o. Mohd. Aslam
R/o. B40/1, Abul Fazl Enclave, Jamia Nagar, Okhla, New Delhi25
2. Dhapo Devi
W/o. Late Lal Singh
R/o. Village Jasola, New Delhi ........... Defendants
Date of Institution : 21.08.2012
Arguments concluded : 19.03.2019
Date of decision : 21.05.2019
Result : Partly decreed
SUIT FOR DECLARATION, PERMANENT INJUNCTION,
CANCELLATION OF AGREEMENT TO SELL, RECOVERY OF
POSSESSION & MESNE PROFIT
JUDGMENT
Suit in brief CS No. 9956/16 Page no. 1 of 29 Shah Mohd. vs. Talat Munir & Anr.
Digitally signed by NARESH NARESH KUMAR LAKA
KUMAR Date:
2019.05.22
LAKA 17:12:42
+0530
The plaintiff claims to be an owner of plot measuring 160 sq. yds bearing no. C82, Khasra no. 272, Raja Mohalla, New Jasola, Okhla, New Delhi [in short "suit property"] on the basis of GPA, Agreement to Sell and Receipt all dated 10.04.1986 [in short "GPA etc."] executed by previous recorded owner Sh. Balwanta S/o. Sh. Dalley. It is further claimed that the plaintiff was in settled possession of the suit property from the date of its purchase and he had also filed an application to the MCD dated 24.12.2009 for tax assessment and mutation which was allowed vide letter dated 06.01.2010. The plaintiff further disclosed that he has filed various other documents like Electricity bill, Election Voter card, Ration card, etc. to show his settled possession in the suit property.
2. The plaintiff further narrated that an agreement to sell dated 19.01.2012 for sale of the suit property was entered into between the plaintiff and the defendant no. 1 and as per the said agreement, the plaintiff already received Rs.40 Lakh but the remaining consideration amount of Rs.35 lakh has not been given despite expiry of date of performance. However, the plaintiff had already handed over the possession of the suit property to the defendant no. 1 in the meantime on 20.02.2012 and after few days, the defendant no.1 demolished the existing construction and when he was raising new construction, the defendant no. 2 raised objection and falsely claimed her own right in the suit property.
CS No. 9956/16 Page no. 2 of 29 Shah Mohd. vs. Talat Munir & Anr.
3. The plaintiff further disclosed that the defendant no. 1 also did not perform his part of contract and, therefore, the amount of Rs.40,00,000 stands forfeited and the said agreement to sell is sought to be cancelled as null and void. The plaintiff also claimed a decree of for declaring him as owner of the suit property and directing the defendant no. 1 to hand over the possession to him along with mesne profit.
Defence in brief
4. Both the defendants contested this case and filed their separate written statements. In the written statement filed by the defendant no. 1, he admitted execution of agreement to sell dated 19.01.2012 but on account of legal defect in the ownership of plaintiff, he claimed that the remaining consideration amount was not paid. It is further alleged that the plaintiff was already having various post dated cheques towards payment and the plaintiff is bound to indemnify the defendant no. 1 and he has no right to forfeit the amount of Rs.40,00,000 nor to take back the possession of the suit property. The defendant no. 1 also protested the claim of the plaintiff towards cancellation of the agreement to sell in question and the amount of mesne profit/damages.
5. In the written statement filed by the defendant no. 2, it is disclosed that she also filed a suit bearing no. 134/2012 seeking CS No. 9956/16 Page no. 3 of 29 Shah Mohd. vs. Talat Munir & Anr.
permanent injunction. In the said suit, the defendant no. 2 claimed that she had purchased a plot measuring 215 sq. yds by including the suit property on the basis of GPA etc. all dated 11.08.1994 from one Sh. Babu Lal, recorded owner the said property who had purchased it from son of Sh. Balwanta S/o. Sh. Dalel. It is further claimed that since then the defendant no. 2 is in possession of the suit property. She also claimed that the documents of the plaintiff are forged and fabricated and the present suit has been filed in collusion with defendant no. 1. It is further claimed that the plot of 215 sq. yds is a vacant land and was never constructed.
Replication, Issues & Trial
6. The plaintiff filed replications to the written statements of the defendant no.1 and 3 wherein the averments made in the plaint were reiterated/reaffirmed and the allegations of the defendants were controverted. From the pleadings of the parties, following issues emerged for determination of the court on 18.11.2014:
1. Whether the suit of the plaintiff is not maintainable and liable to be dismissed as being barred under Order
7 Rule 11 CPC? OPD 1 & 2
2. Whether the suit does not disclose any cause of action and is liable to be dismissed under Order 7 Rule 11 CPC? OPD 1 and 2
3. Whether the plaintiff has no locus standi, right, title in the suit property and the same is owned and possessed by the defendant no. 2? OPD 2 CS No. 9956/16 Page no. 4 of 29 Shah Mohd. vs. Talat Munir & Anr.
4. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD 2
5. Whether the plaintiff is entitled to a decree declaring the plaintiff as having rightful title and ownership over the suit property, to the exclusion of the defendants? OPP
6. Whether the plaintiff was not entitled to repudiate and cancel the agreement dated 19.01.2012 and forfeit Rs.40 lac? OPD 1
7. Whether the plaintiff is entitled to a decree directing the defendant to forthwith hand over possession of the suit property to the plaintiff? OPP
8. Whether the plaintiff is entitled to a decree awarding mesne profits to the plaintiff from June, 2012 till the date of actual handing over of possession? OPP
9. Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant no. 1 and 2 from claiming any right or title whatsoever in the suit property and further restraining defendant no. 1, after handing over of possession, from interfering with the suit property in any manner whatsoever? OPP
7. In order to prove its case, plaintiff examined himself as PW1 and Mohd. Kamil, Junior IT Associate, BSES Rajdhani Power Ltd. and one more witness. In order to defend its case, the defendant no. 1 examined himself as DW1. The defendant no.2 examined Sh. Mahesh Kumar, GPA of defendant no. 2, Sh. Sandeep Kadayan, Halka Patwari, CS No. 9956/16 Page no. 5 of 29 Shah Mohd. vs. Talat Munir & Anr.
SDM office, Sarita Vihar and Ms. Shama Tufail Khan, Asstt. Ahlmad (Court staff).
8. I have heard arguments addressed by Sh. F. Hasan, Ld. Counsel for plaintiff, Sh. Tarun Mathur, Ld. Counsel for defendant no. 1 and Sh. S.K. Verma, Ld. Counsel for defendant no. 2. Record perused.
REASONS FOR DECISION Issue no. 1. Whether the suit of the plaintiff is not maintainable and liable to be dismissed as being barred under Order 7 Rule 11 CPC? OPD 1 & 2 And Issue no. 2. Whether the suit does not disclose any cause of action and is liable to be dismissed under Order 7 Rule 11 CPC? OPD 1 and 2
9. As per Order 7 Rule 11 CPC, a plaint can be rejected if it does not disclose any cause of action, insufficiently stamped with court fees or it is barred by any provision of law. The plaintiff has filed the present suit mainly by claiming himself to be the owner of the suit property and he sought various reliefs of declaration, cancellation of an agreement to sell entered into with defendant No. 1, restoration of possession, etc. therefore, this court holds that the plaint clearly and sufficiently disclosed various causes of action to file the present suit.
10. The point of court fee will be discussed on the specific issue already framed.
CS No. 9956/16 Page no. 6 of 29 Shah Mohd. vs. Talat Munir & Anr.
11. In the WS filed by defendant no.2, an objection has been raised to the effect that the suit property is an agricultural land, therefore, the provisions of Delhi Land Reforms Act applies and, as such, the jurisdiction of this court is barred. On the other hand, the counsel for the plaintiff specifically claimed that the suit property is no more the rural area and it has already been urbanized, therefore, the present suit is maintainable before this Court and not before the Revenue Court.
12. The plaintiff has specifically proved on record that earlier he had applied to the MCD on 24.12.2009 for assessment of his house tax and mutation and the said application was allowed by the MCD, vide letter dated 06.01.2010. Therefore, it is clear that the area where the suit property is situated has already been urbanised and that's why the mutation and house tax assessment was allowed by the MCD. Further the burden to prove this issue was upon the defendant no.2, but the counsel for the defendant no.2 did not specify under which entry or Section or category of the DLR Act, all the reliefs prayed in this case are barred before this court. If any single relief/prayer is maintainable before this court, then the present case is triable before this court.
13. In the light of aforesaid discussion, the aforesaid two issues are decided in favour of plaintiff and against the defendants.
CS No. 9956/16 Page no. 7 of 29 Shah Mohd. vs. Talat Munir & Anr.
Issue no. 3. Whether the plaintiff has no locus standi, right, title in the suit property and the same is owned and possessed by the defendant no. 2? OPD 2 And Issue no. 5. Whether the plaintiff is entitled to a decree declaring the plaintiff as having rightful title and ownership over the suit property, to the exclusion of the defendants? OPP
14. From the pleadings filed on record, it is clear that both the parties are claiming their own right, title and interest in the suit property by filing usual sets of documents that is, GPA, agreement to sell, will, receipt, etc and there is no registered sale deed. Therefore, no party can claim their absolute ownership or title on the basis of said documents but it is a settled position of law that while deciding a civil dispute, this court has to keep in mind the wellestablished principle of ''Better Title" and for the sake of convenience the aforesaid documents are referred to as title documents hereinafter.
15. In this regard, reliance is placed on the cases of "Smt. Shashi Bala Nasval Vs. Rama Kant Shah in RSA No.13/15 dated 02.08.2016, Govindan Soman Vs. Atam Prakaah Malik; CM no.19123/2016 decided on 24.11.2016 and in Vasudha Gupta Vs. DDA and Anr WP (C) No.6258/2013 dated 24.09.2014 decided by the Hon'ble High Court of Delhi" wherein it has been observed as under:
"So far as the judgment in Suraj Lamp & Industries Pvt. Ltd's case (2012) 1 SCC 656 is concerned, the same judgment also CS No. 9956/16 Page no. 8 of 29 Shah Mohd. vs. Talat Munir & Anr.
observes that it will not affect the validity of sale agreements and powers of attorney executed in genuine transactions which may have taken place before the pronouncement of judgment dated 11.10.2011. The court has made it abundantly clear that the purpose is not to make all transactions as illegal, but to ensure that the parties are not able to circumvent the law so as to cause loss to the exchequer by depriving it of payment of stamp duty or registration charges."
"9. Para 27 of the judgment of this Court in Suraj Lamp and Industries (P) Ltd. (2) reads as follows:
"27. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. Our observations regarding 'SA/GPA/will transactions are not intended to apply to such bona fide/ genuine transactions."
16. The suit property was allegedly purchased by the plaintiff in the year 1986 and the defendant no.2 claimed to have purchased it in the year 1994, therefore, the judgment of Suraj Lamp is distinguishable to present situation. This court has to decide the question as to which of the two parties have better title in comparison to each other.
17. The plaintiff Mohd. Shah has placed on record the follow ing documents:
1. Ex.PW1/1 - Site plan
2. Ex.PW1/2 - Agreement to sell dated 10.04.1986
3. Ex.PW1/3 Receipt dated 10.04.1986
4. Ex.PW1/4 GPA dated 10.04.1986
5. Ex.PW1/5 Affidavit dated 10.04.1986
6. Ex.PW1/6 House Tax receipts CS No. 9956/16 Page no. 9 of 29 Shah Mohd. vs. Talat Munir & Anr.
7. Ex.PW1/7 Electricity bills
8. Ex.PW1/8 Ration card of Sh. Anis
9. Ex.PW1/9 Letter issued by the Axis Bank
10. Ex.PW1/10 Copy of election ID card of Nasruddin
11.Ex.PW1/11 Application dated 24.12.2009 for mutation
12. Ex.PW1/12 Order dated 06.01.2010 passed by MCD.
13. Ex.P6/D2 Khatoni filed by plaintiff.
14. Ex.PW1/13 agreement to sell dated 21.10.2009 and cancellation agreement.
15. Mark A Copy of the letter dated 19.01.2010
16. Ex.P1/D1 MOU dated 17.01.2012
17. Ex.P2/D1 copy of the agreement to sell dated 19.01.2012
18. Ex.P3/D1 Copy of the post dated cheques.
19. Ex.PW1/14 Complaint dated 13.07.2012.
20. Ex.P7/D2 copy of the documents in suit no. 134/2012
21. Ex.P4/D1 copy of legal notice.
22. Ex.P5/D1 copy of legal notice.
18. The defendant no. 2 relied on the following documents:
2. Ex.DW2/1 to Ex.DW2/7 - Copy of Khatoni, Khasra Girdawri, GPA, agreement to sell, affidavit, payment receipt and Will dated 11.08.1994.
19. As regards the mode of proof, it is seen that the Ld. Counsel for the defendant no.2 raised an objection at the time of exhibition of documents on the mode of proof and admissibility but the Khatoni was not disputed. As far as the title documents of the plaintiff i.e. GPA etc. are concerned, the plaintiff is beneficiary and purchaser of suit property and in his affidavit filed in evidence, he has specifically deposed that all the said documents were signed by vendor Balwanta and the attesting witnesses in his presence. The Ld. Counsel for the CS No. 9956/16 Page no. 10 of 29 Shah Mohd. vs. Talat Munir & Anr.
defendant no.2 gave a suggestion that Balwant did not sign the said documents, to which plaintiff denied. Therefore this court holds that the plaintiff duly proved the said title documents on record. A specific objection was taken by the Ld. Counsel for the defendant no.2 that the agreement to sell does not bear the signature of the plaintiff. In this context, this court is of the considered opinion that a contract for sale need not necessarily be in writing, therefore, the signature of previous owner, namely, Balwanta is sufficient and the subsequent conduct of the plaintiff in taking possession of the property, payment of consideration amount, etc. completed the said contract especially when there are other documents on record i.e. GPA, Receipt, etc.
20. On the other hand, the defendant no.2 did not examine any executant or attesting witnesses of her title documents i.e. GPA etc. and her son/GPA Holder is not a party to said documents. He also admitted in his crossexamination that he does not know Sh. Babu Lal, from whom the defendant no.2 has allegedly purchased the property. Even if it is assumed for the sake of arguments that the defendant no.2 duly proved on record her title documents i.e. GPA etc., in that case also, there are various observations in favour of plaintiff, which are discussed in the subsequent paragraphs.
Issue of difference of name of Balwanta and Balwant:
21. No such issue was raised by the ld. Counsel for the CS No. 9956/16 Page no. 11 of 29 Shah Mohd. vs. Talat Munir & Anr.
defendant, therefore, no such issue was framed by this court. When no such issue was framed, then the parties were not given a notice of leading evidence on the said issue. This is not a legal issue. Therefore, the said issue which has been raised only at the time of final arguments need no discussion. However, the Ld. Counsel for the defendant no.2 vehemently argued by relying on khatoni that the two persons as mentioned by the plaintiff by the name of 'Balwanta' and relied by the defendant no.2 as 'Balwant' are different and for his satisfaction this court ponders upon the said objection. The plaintiff claimed that he had purchased the suit property from Sh. Balwanta S/o. Sh. Dalel whereas, the defendant no.2 claimed that she had purchased the property from Sh. Babu Lal who had purchased it from son of Sh. Balwant S/o Sh. Dalley.
22. In the written statement, the defendant no.2 did not raise any specific plea that the said names are of two different persons. From the nature of the names, it is seen that the difference in name is with only suffix word "a". This court can take judicial notice of the fact that although a phonetic pronunciation of a person's name is same but while writing a name from Hindi to English inscription the word "a" is suffixed or used in the middle at times which is silent.
23. In the name of Lord Rama or Krishna, the word "a" is suffixed in English but they are called by the name Ram or Krishan CS No. 9956/16 Page no. 12 of 29 Shah Mohd. vs. Talat Munir & Anr.
while writing in Hindi. Likewise, in the name of father of Balwanta, the name was misspelled. But there is no substantial difference. Moreover, the defendant no.2 did not lead any evidence to prove that the said two names belong to two different persons. There is also no assertion in the evidence of DWs examined by the defendant no.2. From the address of the said names, it is clear that it is of same Village and area. No ID proofs of the said persons have been placed on record by the defendant no.2. Accordingly, this argument is rejected being meritless.
Issue of title
24. The documents of the defendant no.2 executed by Sh. Babu Lal are of subsequent year i.e. 1994 whereas, the documents of the plaintiff are of 1986. As per the Section 48 of the Transfer of Property Act, the subsequent documents in favour of the defendant no.2 cannot be considered with respect to same property.
25. The counsel for defendant no.2 also heavily relied on Khatoni and Khasra Girdwaris to claim right, title and interest in favour of defendant no. 2 through Sh. Babu Lal, whose name finds mentioned in the said revenue documents. He further argued that the area of one bigha and 15 biswa was sold to Sh. Babu Lal by son of Sh. Balwant, out of which Sh. Babu Lal sold 215 sq. yds. to the defendant no. 2. No dispute has been raised with regard to previous khatoni by the counsel for plaintiff but he raised objection with regard to the subsequent CS No. 9956/16 Page no. 13 of 29 Shah Mohd. vs. Talat Munir & Anr.
khasra girdawari of the year 20062007. The defendant no.2 examined Halka Patwari to prove the said documents but he admitted in his cross examination that no physical verification of the spot was done before issuance of Khatoni of the year 20062007 (Ex. D2/X2). Therefore, no credence can be given to the Ex.D2/X2 in relation to physical position of spot.
26. It is settled position of law that the entries in the Khatoni or Girdwari are not to be treated as gospel truth always and their entries are also subject to title documents pertaining to ownership or possession of a property. Admittedly, the said revenue records do not reflect the name of the defendant no. 2 and the names of Sh. Babu Lal stand on the same footing as the name of Balwant in favour of plaintiff. Therefore, no benefit can be given to the defendant no. 2 to prove her right through the said khatoni. The sons of Balwant are not raising the issue of title and the defendant no.2 has no locus standi to represent their case.
27. Moreover, it is a common knowledge that one Khasra constitutes various chunks of lands which may range in various bighas or acres of land. When various plots are sold, out of one Khasra to various persons, it is very difficult to decide the physical possession or to correlate the physical possession with the specific share of a particular person unless specific entries are there in revenue record.
CS No. 9956/16 Page no. 14 of 29 Shah Mohd. vs. Talat Munir & Anr.
Admittedly there in no such record. The area of Sh. Babu Lal i.e. one bigha and 15 biswas constitute around 1750 sq. yds and in the absence of proving the specific description/identification of the area of 215 sq. yds. out of said 1750 sq. yds., which was allegedly sold out to the defendant no. 2, the defendant no.2 cannot claim her right on the suit property with all certainty. The defendant no.2 did not lead any evidence by proving all transactions of the area of 1750 sq. yards especially with respect to its physical position.
28. In this regard, this court takes benefit of the observations of Hon'ble Mr. Justice P. Nandrajog, the then Judge, High Court of Delhi, now Chief Justice of Mumbai High Court in the case of Sh. Deep Chand vs Sh. Kulanand Lakhera decided on 17 April, 2007 [140 (2007) DLT 765], which equally apply to the present factual matrix as under:
"I would like to add a caveat. 2/3rd population of Delhi is residing in such kind of unauthorized colonies. There are no approved lay out plans. As in the instant case, documents of title are unregistered agreements to sell and a power of attorney. It is a nightmare to identify 100 sq. yards to 150 sq. yards of land in these densely populated areas. In the instant case, the land comprised is 100 sq. yds. As per the parties, it was carved out of land comprised in khasra No. 321 of Village Ghonda Gujran Khadar, Illaqa Shahdara.
79. In Delhi, land comprised in a khasra generally ad measures CS No. 9956/16 Page no. 15 of 29 Shah Mohd. vs. Talat Munir & Anr.
4 bigha and 16 biswa i.e. 4880 sq. yds. With gross unauthorized colonization, the permanent points of most of the villages have been destroyed. It is impossible to demarcate the original khasras. If original khasra cannot be demarcated, who possibly can demarcate 100 sq. yard land comprised in a khasra. Further, which part of the khasra stands bifurcated resulting in 100 sq. yd. Land being carved out. Since everything was done illegally, the revenue officials have not cut the titama at site, much less reflect the same on the revenue map of the village.
80. Unauthorized colonization in Delhi and disputes relating to possession of plots therein are virtually crippling civil courts at the district (junior division) level in Delhi. Nobody has any clue as to how a dispute pertaining to identity of a plot can be decided.
81. As in the instant dispute, where two parties allege with reference to 2 different numbers that the site in question belongs to them, I can think of no satisfactory solution other than to prepare the shajra of the entire revenue estate at the same scale as per the lay out plan of the illegal colony and thereafter super impose the latter on to the former to identify as to which plot falls at which part of the revenue estate. But this would require the availability of an authentic copy of the approved lay out plan of the colony. Unfortunately, none exists."
29. It has been held in subsequent paragraphs that the plaintiff has proved his physical possession whereas the defendant no.2 failed to prove the same. Therefore, the revenue documents are not of any help to the defendant no. 2. As such, the right of the plaintiff is on superior footing than the claim of the defendant no. 2. It is well settled that the CS No. 9956/16 Page no. 16 of 29 Shah Mohd. vs. Talat Munir & Anr.
standard of proof in civil cases and criminal cases is quite different. The plaintiff in a civil suit has to merely establish his case on the touchstone of preponderance of probabilities and the defendant is not necessarily entitled to the benefit of every reasonable doubt. As per Section 3 of the Evidence Act, a fact is said to be proved when the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. The court has to weigh the conflicting probabilities and decide whether the preponderance is in favour of the fact asserted by the plaintiff. Thus if the evidence of the plaintiff outweighs that of the defendant and persuades the court to believe the same to be more probable and true than then it can be held that the plaintiff has proved his case by preponderance of probability. [Reference can be had to the judgments of N.G. Dastane, Dr. v. S. Dastane, reported as AIR 1975 SC 1534 and Syad Akbar v. State of Karnataka reported as AIR 1979 SC 1848].
30. It is highly improbable that the suit property which was allegedly purchased in the year 1994 as claimed by the defendant no. 2, but she did not take any step to put erect a gate and put a lock or other safety measures for a long period of time i.e. around 18 years till the suit was filed. On the contrary, the plaintiff has placed on record the CS No. 9956/16 Page no. 17 of 29 Shah Mohd. vs. Talat Munir & Anr.
Ration Card in the name of his son and his family which was issued in the 2004, electricity bills (energization since 2008) and the mutation order of the MCD which are very valuable documents strengthening his possession. If the suit property belonged to the defendant no. 2, she should have taken action against the plaintiff during the last two decades for alleged illegal possession of suit property but she woke up only in 2012.
31. Defendant no.2 has also not examined any attesting witness or executant of the documents which were allegedly executed by Shri Babu Lal in her favour. She even did not examine herself or said Babu Lal or the previous owner who executed documents in favour of Sh. Babu Lal nor produced the previous chain of documents. DW Sh. Mahesh Kumar, son of the defendant no.2 also admitted in his crossexamination that he does not know Sh. Babu Lal, therefore, it is clear that he is also not aware of the transaction, as claimed by the defendant no. 2. Therefore, the claim of the defendant no.2 is full of doubt and not creditworthy.
Issue of possession:
32. On the point of possession, this court finds it appropriate to quote some of the importance guiding observations of Hon'ble Mr. Justice P. Nandrajog, the then Judge, High Court of Delhi, now CS No. 9956/16 Page no. 18 of 29 Shah Mohd. vs. Talat Munir & Anr.
Chief Justice of Mumbai High Court in the case of Sh. Deep Chand vs Sh. Kulanand Lakhera and Ors. (supra) as under:
"1. Dealing with possession, in Chapter 9, Salmond On Jurisprudence (12th Edition), states that few relationships are as vital to man as that of possession, and we may expect any system of law, however primitive, to provide rules for its protection. Possession of material things is essential to life, it is the most basic relationship between men and things.
But the concept of possession is as difficult to define as it is essential to protect. In the first place, possession is an abstract notion and involves the same sort of difficulties, which we have seen to arise with other abstract terms such as "law" and "rule".
There is nothing which we can point at and identify as possession in the same way as we can do with concrete things such as tables and chairs. Moreover, it is an abstract term to which the traditional type of definition is as inappropriate as we saw it to be for the term "rule". Just as we could not locate the notion of a rule within some wider class of concepts, so too with possession we cannot define it by placing it in a wider class and then distinguishing it from other members of the class; for possession is, it would seem, is a class of its own.
Possession may be lawful, it may be unlawful. It may be legal or illegal. The acquisition of legal possession would obviously be lawful and would of necessity involve the occurrence of some event recognized by law whereby the subject matter falls under the control of the possessor. But a problem arises where the duration for which possession is recognized is limited by the grantor or the law. Continuance of possession beyond the period specified by the grantor or recognized by law is not treated as a lawful possession. For example, a tenant acquires legal as well as lawful possession of the tenanted premises from the landlord with the express consent of the landlord but limited to the duration of the lease. On expiry of the lease, if the landlord does CS No. 9956/16 Page no. 19 of 29 Shah Mohd. vs. Talat Munir & Anr.
not consent to the lease being continued, the possession of such tenant would not be a lawful possession. The nature of possession being not lawful would entitle the landlord to regain possession.
8. Can he do so by entering upon the tenanted premises and physically throwing out the tenant?
9. From a commonsense point of view, lawful possession must be the state of being a possessor in the eyes of law. The possession must be warranted or authorized by the law; having the qualifications prescribed by law and not contrary to nor forbidden by the law.
10. But law recognizes possession as a substantive right or an interest. Continued possession of a person is recognized by law as a sufficient interest capable of being protected by the possessor, right being founded on mere fact of possession.
12. Salmond On Jurisprudence (12th Edition), page 294, while discussing possessory remedies has noted that in English law, possession is a good title of right against anyone who cannot show a better title. Thus, a possessor, including a wrongful possessor, has the rights of an owner with respect to all persons except the true owner. Many legal systems go much further and treat possession as a provisional or temporary title even against the true owner. A wrongdoer who is deprived of his possession can recover it from any person whatsoever, simply on the ground of his possession and where the true owner uses force to throw out the wrongdoer, these legal systems do not permit the true owner to set up his superior title to protect the possession which was regained by force. He is compelled to give up possession and then proceed in due course of law for the recovery of the thing on the strength of his ownership."
CS No. 9956/16 Page no. 20 of 29 Shah Mohd. vs. Talat Munir & Anr. 33 The Section 6 of the Specific Relief Act, 1963 recognizes
the aforesaid position of law. It is the case of the plaintiff that since the date of purchase of suit property (i.e. 10.04.1986), the plaintiff was in possession of the same and he had also raised construction of certain rooms, toilet, bathroom and kitchen and after entering into an agreement to sell dated 19.01.2012 with the defendant no.1, he had given its possession to the defendant no. 1 on 20.02.2012.
34. On the other hand, defendant no.2 claimed that the suit property is a vacant land and she is in its possession from the date of its purchase in the year 1994.
35. The plaintiff has placed on record various documents which clearly prove that the plaintiff was in possession of the suit property and he even raised certain rooms and other structures and that is why the electricity bills were issued by the BSES which are in the name of the plaintiff and the same show date of energization as 17.09.2008.
36. The plaintiff has also placed on record various photographs showing the physical presence on the same and also raising of structure by erecting pillars by the defendant no.1. The plaintiff has also placed on record ration card of his son, namely, Mohd. Anees (Ex. PW1/1), date of its issuance is 29.12.2004; election card of his nephew, namely, CS No. 9956/16 Page no. 21 of 29 Shah Mohd. vs. Talat Munir & Anr.
Mohd. Nasurdeen (Ex. PW1/10) as well as the property tax assessment order dated 06.01.2010. Although, the counsel for defendant no. 2 raised objection on the mode of proof of the aforesaid documents, yet this court is of the considered opinion that the aforesaid documents were issued by the public authorities and the plaintiff is acquainted with the same, therefore, they are held to be duly proved on record. As per the Section 64 of the Indian Evidence Act, a document can be proved by mere production of original document. The Ration card, Election Card, Electricity Bill are not the documents which bear any signature or handwriting, therefore, it is not required to be proved in usual mode by executant or the attesting witness as per Section 67 of the Indian Evidence Act but these are the public documents and when they have been filed in original, they stand proved especially when the same belong to plaintiff or his family members.
37. On the other hand, defendant no.2 did not produce any document to show the possession upon the suit property at any point of time except the alleged title documents executed by Sh. Babu Lal which have not been sufficiently proved by examining its executant or any of the attesting witnesses. Defendant no.1 also gave specific evidence that there was some structure which includes various rooms, toilet, bathroom and kitchen and after taking its possession on 20.02.2012, he demolished the said structure, dug the foundation and erected some pillars which were duly proved from the photographs.
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38. In view of the aforesaid discussion and evidence produced on record, this court holds that the plaintiff duly proved his physical possession on the suit property till the time it was transferred to defendant no.1 on 20.02.2012 and since then defendant no.1 is in possession of the suit property.
39. In the light of aforesaid findings, the issue no. 3 and 5 are decided in favour of the plaintiff and against the defendant no. 2.
Issue no. 4. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD 2
40. The plaintiff has valued the present suit at the amount of ₹ 80 lakhs for the relief of possession and at fixed amount for other reliefs. The onus to prove this issue was upon the defendant No.2 but no evidence has been led. However, the Ld. Counsel for the defendant no.2 filed written arguments by citing circle rate. He pointed out that as per Circle Rate of Jasola Vihar Colony, the Government of NCT of Delhi fixed Rs.1,06400 per sq. mtr. for Category D which is assigned to suit property. He claimed that after calculation of 215 sq. yards with the said rate, the valuation of the suit property comes more than Rs.2 crores.
41. The suit property is 160 sq. yards and it comes out to be 134 sqm and after multiplying the said area of 134 psm X 106400, it CS No. 9956/16 Page no. 23 of 29 Shah Mohd. vs. Talat Munir & Anr.
comes out to be Rs.1,42,57,600. If it is calculated for 215 Sq. yards though it is not the case of plaintiff, then it comes out to be 180 sqm and the valuation comes out to be Rs.1,81,52,000. Thus both the aforesaid valuation is within the jurisdiction of this court being below the amount of Rs.2 crores. Consequently, this issue is decided in favour of the plaintiff and against the defendant No. 1 and 2.
Issue no. 6. Whether the plaintiff was not entitled to repudiate and cancel the agreement dated 19.01.2012 and forfeit Rs.40 lac? OPD 1 And Issue no. 7. Whether the plaintiff is entitled to a decree directing the defendant to forthwith hand over possession of the suit property to the plaintiff? OPP
42. It is a case of the plaintiff that the defendant no.1 did not perform his part of contract by not making the payment of the remaining amount of ₹ 35 lakhs and, as such, the plaintiff has sought cancellation of the agreement to sell dated 19.01.2012, forfeiture of the advance amount of ₹ 40 lakhs and recovery of possession of the suit property from the defendant No.1.
43. It is a settled position of law that an agreement to sell with regard to immovable property can be got enforced or canceled through a court of law as per the provisions of the Specific Relief Act, 1963 but it is not a matter of right but discretion of the court. From the perusal of the entire terms and conditions of the agreement to sell in question, it is CS No. 9956/16 Page no. 24 of 29 Shah Mohd. vs. Talat Munir & Anr.
seen that there is no clause to the effect that in case of default (though there is no default) on the part of the defendant to pay the remaining amount, the advanced consideration amount would be forfeited or that plaintiff would be entitled for restoration of the possession of the suit property.
44. Therefore, the remedy available with the plaintiff is to seek recovery of the remaining amount of ₹ 35 lakhs alongwith interest or damages, if any, especially when the defendant No.1 had already acted upon the terms of this agreement by making payment of advance amount of ₹ 40 lakh, taking possession of the suit property, demolishing the existing structure and trying to raise the new structure after applying his resources and this court does not find any default on his part. The reasons disclosed by the defendant no.1 in his legal notice sent to the plaintiff and WS, asking him to clear the cloud and dispute on his title, are well justified for deferring the remaining payment. Anyhow, his postdated cheques lying with the plaintiff towards remaining amount also prima facie draws an inference that there was no default for payment of remaining amount and no cause of action arose in favour of plaintiff until the plaintiff had presented the said cheques and in turn they would be returned unpaid.
45. The cause of action for seeking specific performance of the contract in favour of defendant no.1 prima facie arises with effect from CS No. 9956/16 Page no. 25 of 29 Shah Mohd. vs. Talat Munir & Anr.
today after clearing the title of the plaintiff in the suit property. Therefore, this court holds that the plaintiff is not entitled for seeking cancellation of the agreement to sell in question or for forfeiture of advanced amount of Rs.40 lakhs or restoration of the possession of the suit property.
46. However, since the defendant no.1 did not claim specifically any relief either for refund of advanced amount or specific performance of agreement in question from the side of plaintiff by filing any counter claim, the defendant no.1 was asked at the time of announcement of judgment, whether he is interested for refund of his amount, along with reasonable interest @ 12% per annum on the advanced consideration amount of Rs. 40 lakhs from the date of its payment till date, to which he replied in negative.
47. He also conveyed that he will seek specific performance of contract only. Accordingly a liberty is given to the defendant no.1 to either accept the aforesaid refund with interest within 3 months or avail the remedies available under law. But if the defendant does not take any such step within the period of three months and thereafter does not perform his part of contract by making payment of remaining amount of Rs.35 lakhs along with a reasonable interest @ 12% per annum from the date of due amount i.e. date of performance of agreement in question, till the date of realization to the plaintiff, then the plaintiff CS No. 9956/16 Page no. 26 of 29 Shah Mohd. vs. Talat Munir & Anr.
can file execution for realization of the said remaining amount along with interest. However, if the defendant no.1 files any suit for specific performance, the aforesaid direction of payment of amount to the plaintiff will be subject to outcome or interim order with regard to deposit of amount of the said case.
48. Accordingly, the issue no.6 and 7 are decided in above terms.
Issue no. 8. Whether the plaintiff is entitled to a decree awarding mesne profits to the plaintiff from June, 2012 till the date of actual handing over of possession? OPP
49. In view of my findings on the Issue no.6 and 7, this court is of the considered opinion that the plaintiff is not entitled for mesne profits. Accordingly, this issue is decided against the plaintiff and in favour of defendant no.1.
Issue no. 9. Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant no. 1 and 2 from claiming any right or title whatsoever in the suit property and further restraining defendant no. 1, after handing over of possession, from interfering with the suit property in any manner whatsoever? OPP
50. In view of my findings of the aforesaid issues, this issue is decided in favour of plaintiff as well as defendant no.1 and against the defendant no.2. The defendant no.2 and his agents/legal heirs are restrained to create any third party interest by way of sale, mortgage, CS No. 9956/16 Page no. 27 of 29 Shah Mohd. vs. Talat Munir & Anr.
gift, lease or any other recognized mode of transfer with respect to the suit property without due process of law.
Conclusion/Relief
51. In the light of aforesaid findings, the suit of the plaintiff is partly decreed as under:
(a) A decree of declaration is passed whereby declaring the plaintiff a rightful owner of the suit property in comparison to the claim of defendant no.2.
(b) The relief of declaration seeking cancellation of agreement dated 19.01.2012 is rejected.
(c) The relief of seeking possession as well as mesne profit of the suit property from defendant no.1 are also rejected.
(d) A decree of permanent injunction is passed thereby defendant no. 2 and his agents/legal heirs are restrained to create any third party interest by way of sale, mortgage, gift, lease or any other recognized mode of transfer with respect to the suit property without due process of law.
(e) A liberty is given to the defendant no.1 to either accept the refund of Rs. 40 lacs with interest within 3 months or avail the remedies available under law. But if the defendant does not take any such step within the period of three months and thereafter does not perform his CS No. 9956/16 Page no. 28 of 29 Shah Mohd. vs. Talat Munir & Anr.
part of contract by making payment of remaining amount of Rs.35 lakhs along with a reasonable interest @ 12% per annum from the date of due amount i.e. date of performance of agreement in question i.e. 01.06.2012 till the date of realization to the plaintiff, then the plaintiff can file execution for realization of the said remaining amount along with interest. However, if the defendant no.1 files any suit for specific performance, the aforesaid direction of payment of amount to the plaintiff will be subject to outcome or interim order of the said case.
(f) Cost of suit is also awarded to the plaintiff as per rules payable by defendant no.2.
52. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Announced & dictated in the Open Court on 21.05.2019 (Naresh Kumar Laka) Additional District Judge03 South East District, Saket Courts, New Delhi.
Digitally signed by NARESH NARESH KUMAR LAKA
KUMAR Date:
2019.05.22
LAKA 17:13:01
+0530
CS No. 9956/16 Page no. 29 of 29
Shah Mohd. vs. Talat Munir & Anr.