Delhi District Court
Sh. Rohit Agarwal vs . on 11 November, 2014
IN THE COURT OF SH. PITAMBER DUTT;ADJ(CENTRAL)-11, DELHI
Suit No. 900/08
Unique I.D No. 02401C1071912007
1. Smt. Dhanwanti Devi
W/o Sh. M. L. Gupta,
R/o II-F/54, Nehru Nagar,
Ghaziabad (U.P.)
2. Sh. Bharat Bhushan
S/o Sh. M. L. Gupta,
R/o II-F/54-54, Nehru Nagar,
Ghaziabad (U.P.)
(Through his duly constituted
Attorney Sh. M. L. Gupta) ....P l a i n t i f f s
vs.
1. Sh. Rohit Agarwal
S/o Sh. R.K. Aggarwal,
House No. 30/14, Gali No. 6,
Daksh Gali, Vishwas Nagar, Shahdara,
Delhi-110032
2. Sh. Anil Kumar Garg
S/o Sh. R. N. Gupta,
R/o 9/64, Bagichi Gai,
Vishwas Nagar, Shahdara,
Delhi-110032
3. Sh. Shyam Sunder,
S/o Sh. R. K. Aggarwal,
R/o Village Saboli
Delhi-110093
4. Sh. Abrar
S/o Sh. Samaydeen
R/o 425, Village Mandoli
Delhi-110093 . ....D e f e n d a n t s
Suit no. 900/08 Page no. 1/23
Date of Institution of Suit : 24.10.2007
Date when reserved for orders : 31.10.2014
Date of Decision : 11.11.2014
JUDGMENT
1 Vide this judgment I shall decide a suit for declaration, possession or in the alternative for recovery of Rs. 5,98,850/- and permanent injunction filed by the plaintiffs against the defendants. The brief facts necessitated in filing the present suit are given as under:-
2 That plaintiff no. 1 had purchased a plot measuring 308 sq. yds. forming part of Khasra No. 1 situated in Abadi of Pratap Nagar at Village Saboli, Ilaqa Shahdara, Delhi from Sh. Budh Singh by virtue of Agreement to Sell, Power of Attorney, Will etc. Plaintiff no. 2 also purchased adjacent plot measuring 400 sq. yds. Including three flats constructed on 35 sq.yds. each part of Khasra No. 12, situated in Abadi Pratap Nagar, Village Saboli, Ilaqa Shahdara, Delhi from Smt. Renu Aggarwal vide registered Agreement to Sell, Will, G.P.A. Dated 05.09.1997.
3 That defendant no. 1 & 2 agreed to purchase the land and plot owned by plaintiffs. They agreed to purchase vacant land @ Rs. 2500/- per sq. yds. and constructed portion measuring 35 sq. yds for a total sale consideration of Rs. 2,70,000/-. Thus the total sale consideration for both the plots and constructed portion was agreed as Rs. 15,67,500/- out of which defendant no. 1 has paid a sum of Rs. 2,50,000/- at the time of signing of the agreement. It was agreed between the parties that balance sale consideration would be Suit no. 900/08 Page no. 2/23 paid by the defendants at the time of registration of the documents. After execution of the Agreement to Sell dated 01.02.2006, defendant no. 1 & 2 have also paid a sum of Rs. 5,00,000/- and stated that entire balance amount of Rs. 8,17,500/- would be paid at the time of registration of title document.
4 That plaintiff made various requests to defendant no. 1 & 2 to pay the balance sale consideration. The defendant no. 1 & 2 got prepared two Irrevocable Power of Attorneys dated 03.07.2006 in respect of suit property, one was in the name of defendant no. 1 and other was in the name of defendant no. 2. They also paid a sum of Rs. 3,10,000/- and stated that they had to show registered document somewhere therefore, registration of the Power of Attorney was necessary. They also assured that balance sale consideration would be paid within a period of one month from the said date. The plaintiffs believed their representation and accordingly executed Irrevocable Power of Attorney.
5 It is further averred that defendant no. 1 & 2 have paid a sum of Rs.10,60,000/- out of the total sale consideration of Rs.15,67,500/-, keeping the balance amount of Rs.5,07,500/-. The husband of plaintiff no. 1 requested the defendants after one month to make the payment of balance sale consideration as assured. The defendant no. 1 & 2 showed their financial difficulty and requested for some time. The plaintiff lastly visited the defendants in the last week of August, 2007 and requested them to make the balance sale consideration. They however, have not paid the entire agreed sale consideration despite various requests, therefore, documents got executed by defendant no. 1 & 2 from plaintiffs are liable to be declared as null and void as the total sale consideration has not been paid to the plaintiffs. Defendants are also liable to hand over the vacant and peaceful possession Suit no. 900/08 Page no. 3/23 of the entire suit property of the plaintiff as they are not permitted to retain the possession until balance consideration is not paid. The defendant no. 1 & 2 have executed agreement to sell, GPA, Will etc. in favour or defendant no. 3 & 4. The documents executed by defendant no. 1 & 2 in favour of defendant no. 3 & 4 are also liable to be declared as null and void. On the basis of the above averment, present suit has been filed for adjudication.
6 Pursuant to the summons, defendants appeared and filed written statement taking preliminary objection that court has no territorial jurisdiction to entertain and adjudicate the present suit; that there is no cause of action in favour of the plaintiff against the defendnat.
7 On merit, it is averred that defendants have not approached the plaintiffs, the negotiation about purchase of suit property were made with one Sh. Satish Goyal who introduced the defendants with the attorney of plaintiff. The husband of plaintiff no. 1 received Rs. 2,50,000/- from the defendants stating himself as owner of the suit property, but he failed to show any document in respect of the suit property, therefore defendants asked him to refund the amount taken by him fraudulently. The husband of plaintiff no. 1 promised to refund the amount in due course, thereafter defendants made direct negotiations with the actual owner of the suit property who ultimately registered document in favour of the defendant after receiving full and final sale consideration and executed receipt in that regard. The entire sale consideration has been paid by the defendants to the actual owner and nothing remains to be paid. It is denied that the documents executed by plaintiffs in favour of defendants are required to be declared as null and void. All other averments have been denied, it is prayed that suit be dismissed with cost.
Suit no. 900/08 Page no. 4/238 Plaintiff filed replication to the written statement, thereby reiterated the averment made in the plaint and denied the averment made in the written statement.
9 On the basis of the pleadings of the parties vide order dated 11.02.2011, the following issues have been framed for adjudication:-
1. Whether the plaintiff is entitled for a decree of possession with respect of the suit property admeasuring 308 sq. yards, Khasra no. 1 and 211 sq. yards plus 35 sq. yards constructed portion in Khasra no. 12, situated in the abadi of Pratap Nagar at Village Saboli, Shahdara, Delhi ? OPP OR IN THE ALTERNATIVE Whether the plaintiff is entitled for recovery of Rs. 5,98,850/-
against the defendant? OPP
2. Whether the plaintiff is entitled for interest, if so, at what rate and for what period? OPP
3. Whether the plaintiff is entitled for decree of declaration against the defendant thereby declaring the GPA dated 03.07.2006 as null and void document? OPP
4. Whether the plaintiff is entitled for decree of declaration thereby declaring the agreement to sell, GPA, Deed of Will, Possession Letter, Payment Receipt executed by defendant no. 1 in favour of defendant no. 3 as null and void? OPP
5. Whether the plaintiff is entitled for decree of declaration thereby declaring the agreement to sell, GPA, Deed of Will, Possession Letter, Payment receipt executed by defendant no. 2 in favour of defendant no. 4 dated 11.04.2008 as null and void document? OPP
6. Whether the plaintiff is entitled for decree of permanent injunction thereby restraining the defendant permanently, from selling, alienating, mortgaging or creating any third party interest in the suit property? OPP Suit no. 900/08 Page no. 5/23
7. Whether the plaintiff has no cause of action for filing the present suit against the defendants ? OPP
8. Whether the plaintiff is entitled for the relief claimed? OPP
9. Relief 10 The Issue No. 3 has been framed regarding the relief of declaration sought by the plaintiff against defendant no. 1 & 2. The said Issue, has not been correctly framed and some typographical error has been irrupted in the said issue. The plaintiff sought declaration against the documents executed by them i.e. irrevocable power of attorney dated 03.07.2006 and other documents executed in favour of defendant no. 1 & 2. Those document have not been correctly mentioned in Issue No. 3. The Issue No. 3 is thus required to be reframed by giving details of the documents sought to be declared as null and void. No prejudice would cause to any of the party if Issue No. 3 is reframed as both the parties have led their evidence as per their pleadings. Consequently, Issue No. 3 is reframed by taking recourse of Order 14 Rule 5 CPC, same is as under:-
ISSUE NO. 3 Whether the plaintiffs are entitled for decree of declaration against defendant no. 1 & 2 thereby declaring the irrevocable power of attorney dated 03.07.2006 and other documents executed in their favour as null and void? OPP
11 In order to prove their case, plaintiff has examined Sh. M.L. Gupta, their Attorney as PW-1 who reiterated the averment made in the plaint in his examination in chief. PW-1 exhibited Power of Attorney of plaintiff no. 1 is Ex.PW-1/1. Power of Attorney of plaintiff no. 2 is Ex.PW-1/2. Site Plan is Ex.PW-1/3. Agreement to Sell dated 01.02.2006 is Ex.PW-1/4. Irrevocable Power of Attorney dated 03.07.2006 by plaintiff no. 2 in favour of defendant no. 2 is Ex.PW1/5. Irrevocable Power of Attorney by plaintiff no. 1 in favour of Suit no. 900/08 Page no. 6/23 defendant no. 1 as Ex.PW-1/6. PW-1 has been thoroughly cross-examined by Ld. Counsel for the defendants.
12 Plaintiff has also examined Ms. Janki, UDC from Sub-Registrar Office, Seelampur who brought the record of General Power of Attorney dated 03.07.2006 Ex.PW-1/5 & PW-1/6.
13 In order to answer the claim of the plaintiff, defendant no. 1 examined himself as DW-1 who reiterated the averment made in the written statement in his examination in chief. DW-1 exhibited the agreement to sell dated 03.07.2006, Receipt, Possession Letter, Deed of Will and Affidavit of plaintiff no. 1 as Ex.DW-1/A to DW-1/E. DW-1 has been thoroughly cross examined by Ld. Counsel for the plaintiff.
14 The defendant no. 2 has examined himself as DW-2, he also reiterated the averment made in the written statement in his examination in chief. DW-2 also exhibited the agreement to sell dated 03.07.2006, Receipt, Possession Letter, Deed of Will and Affidavit of plaintiff no. 2 as Ex.DW-2/A to DW-2/E. DW-2 has been thoroughly cross examined by Ld. Counsel for the plaintiff.
15 The defendant has also examined one Brijesh Kumar as DW-3 and Sh.Satish Goel as DW-4. Both these witnesses have been thoroughly cross- examined by Ld. Counsel for the plaintiff.
16 I have heard Ld. Counsel for the parties and perused the pleadings, evidence and other material placed on record. My issue wise findings are as under:-
Suit no. 900/08 Page no. 7/2317 ISSUE NO. 1 Whether the plaintiff is entitled for a decree of possession with respect of the suit property admeasuring 308 sq. yards, Khasra no. 1 and 211 sq. yards plus 35 sq. yards constructed portion in Khasra no. 12, situated in the abadi of Pratap Nagar at Village Saboli, Shahdara, Delhi ? OPP ALTERNATIVE Whether the plaintiff is entitled for recovery of ISSUE Rs. 5,98,850/- against the defendant? OPP ISSUE NO. 2 Whether the plaintiff is entitled for interest, if so, at what rate and for what period? OPP ISSUE NO. 3 Whether the plaintiffs are entitled for decree of declaration against defendant no. 1 & 2 thereby declaring the irrevocable power of attorney dated 03.07.2006 and other documents executed in their favour as null and void? OPP Issue No. 1, 2 & 3 are taken together as they are interconnected. The plaintiffs have taken a plea that they are the owners of the suit property which they purchased from one Sh. Budh Singh and Smt. Renu Aggarwal vide Agreement to Sell, Will, GPA etc. The defendant no. 1 & 2 agreed to purchase the suit property for a total sale consideration of Rs.15,67,500/-. Out of which defendant no. 1 & 2 have paid a sum of Rs. 10,60,000/- only and have failed to pay balance amount of Rs.5,07,500/- despite various requests. The plaintiffs had executed registered power of attorney dated 03.07.2006 in respect of suit property, in favour of defendant no. 1 & 2 on their assurance that balance sale consideration would be paid within a period of one month. Despite their assurance, defendant no. 1 & 2 have failed to pay the balance sale consideration, therefore, they are liable to handover the vacant and peaceful possession of the entire suit property as they cannot be permitted to retain the possession without paying the balance sale consideration. As per the plaintiffs, defendant no. 1 & 2 have no right and title to retain the Suit no. 900/08 Page no. 8/23 possession and document, executed by the plaintiffs in their favour are required to be declared as null and void.
18 The defendant no. 1 & 2 have taken a plea that husband of plaintiff no. 1 represented himself as owner of the suit property and on such representation, he received Rs.2,50,000/- from them. He, however failed to show any document in his favour, therefore, defendant no. 1 & 2 asked the husband of the plaintiff no. 1 for refund of the amount taken by him. He promised to refund the amount in due course. The defendants thereafter made direct negotiations with the actual owner of the suit property, who ultimately executed document in favour of the defendant no. 1 & 2 after receiving full and final sale consideration. As per the defendants, they are the owner of the suit property and have paid the entire sale consideration, therefore, they are not required to handover the possession of the suit property nor the documents executed in their favour are required to be declared as null and void.
19 In order to prove their case, both the parties have led their respective evidence.
20 An examination of pleading and evidence led on record shows that plaintiffs have filed a suit for declaration and recovery of possession and in alternative recovery of Rs.5,98,850/- against defendant no. 1 & 2 on the ground that plaintiffs are the owner of the suit property and they entered into an agreement to sell dated 03.07.2006 in favour of defendant no. 1 & 2. The defendant no. 1 & 2 have failed to pay the entire sale consideration, therefore, they cannot be allowed to retain the possession of the suit property.
Suit no. 900/08 Page no. 9/2321 The defendant no. 1 & 2 have claimed themselves as owner of the suit property on the basis of document i.e. GPA Ex.PW-1/5 & PW-1/6 as well as Agreement to sell, receipt, possession letter, deed of will Ex.DW1/A to Ex.DW1/E as well as Ex.DW2/A to Ex.DW2/E. As per defendant no. 1 & 2 they have purchased the suit property from plaintiffs and paid the entire sale consideration. Sale of immovable property has been defined in Section 54 of the Transfer of Property Act which reads as under:-
54." Sale" defined- 'Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made- "Such transfer" in the case of tangible immovable property of the value of one hundred rupees and unwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable
property takes place when the seller places
the buyer, or such person as he directs, in
possession of the property.
22 As per Section 54 of Transfer of Property Act, title of an immovable
property of the value of Rs 100 or more can only be transferred through a registered sale deed. A contract for sale of immovable property is a contract that a sale of such property shall take place on terms agreed between the parties. It does not in itself create any interest in such Suit no. 900/08 Page no. 10/23 property. An agreement to sell is not an executed contract but an executory contract. It does not create any right in the property itself but it only confers a right to the party in whose favour it is to seek enforcement of such agreement through the court of law.
23 The defendant no. 1 & 2 have taken a plea that they purchased the suit property from plaintiffs by virtue of agreement to sell, GPA, receipt, etc. and paid the entire sale consideration of Rs5,60,000/-. As per the plaintiff, the total sale consideration was Rs15,67,500/- out of which defendant no. 1 & 2 have paid total sum of Rs. 10,60,000/- and have not paid the remaining sale consideration. The value of the suit property was admittedly more than Rs.100 at that time, therefore, suit property could have been transferred only through a registered instrument and not otherwise as per Section 54 of Transfer of Property Act.
24 A Division Bench of Hon'ble Delhi High court in "G. Ram Vs DDA and another" reported as AIR 2003 Delhi 120 has held that:-
" agreement to sell is not a document of transfer nor by reason of execution of a power of attorney the right, title or interest of a immovable property can be transferred. Such a transfer can only be effected by executing a registered document as provided under Section 54 of the Transfer of Property Act read with Section 17 of the Indian Registration Act."
25 The above preposition has been reiterated by the Hon'ble Delhi High Court in M.L. Aggarwal Vs Oriental Bank of Commerce & Others reported as 128, 2006, DLT, 407 (DB).
Suit no. 900/08 Page no. 11/2326 The Hon'ble Supreme Court of India has dealt with the concept of GPA Sales in "Suraj Lamp and Industries Pvt Ltd Vs State of Haryana and others" reported as JT 2011 ( 12) SC 564. The relevant portion of the judgment are para no. 15 & 16 which are reproduced as under:
"Para 15: Therefore, a SA./GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M Jain V. Canara Bank 94 ( 2001) DLT 841), that the, "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law".
"Para 16. We therefore, reiterate that immovable property can be legally and lawfully transfered/conveyed only by a registered deed of conveyance.
Transactions of the nature of "GPA sales" or SA/GPA/WILL transfers do not convey little and do not amount to transfer, nor can they be recognized or valid mod of transfer of immovable property. The courts will not treat such transactions as completed or Suit no. 900/08 Page no. 12/23 concluded transfers or as conveyances as they neither convey title nor crate any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53-A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to free hold property but also to transfer of leasehold property. A lease cannot be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales".
27 The above pronouncement of the Hon'ble Supreme Court of India makes it absolutely clear that title of an immovable property of the value of Rs. 100 or more can only be transferred through a registered sale deed or Conveyance Deed and not otherwise. The defendant no. 1 & 2 have claimed themselves as owner of the suit property on the ground that they purchased the suit property from plaintiffs by virtue of irrevocable power of attorney Ex.PW-1/5 & PW-1/6 as well as agreement to sell, receipt, possession letter etc. Ex.DW-1/A to DW-1/E and Ex.DW-2/A to DW-1/E. Except general power of attorney Ex.PW-1/5 & Ex.PW-1/6, none of the documents relied upon by defendant no. 1 & 2 are registered. Admittedly, there is no sale deed qua the suit property in favour of defendant no. 1 & 2, therefore, they cannot be termed as owner of the suit property.
Suit no. 900/08 Page no. 13/2328 The plaintiffs themselves purchased the suit property from its erstwhile owner by virtue of GPA, Agreement to Sell, etc. and there is no sale deed qua the suit property in their favour as well. Therefore, plaintiffs are also not the owner of the suit property as their exists no registered sale deed in their favour. However, fact remains that defendant no. 1 & 2 have acquired possession of the suit property from plaintiffs, therefore, plaintiffs have better title than defendant no. 1 & 2 and on that ground they can seek recovery of possession from defendant no. 1 & 2.
29 Ld. Counsel for the defendants contended that the possession of defendant no. 1 and 2 is protected under Section 53 (A) of Transfer of Property Act as defendant no. 1 & 2 have got possession of the suit property on the basis of agreement to sell and paid the entire sale consideration.
30 Ld. Counsel for the plaintiffs on the other hand, contended that the possession of the defendants cannot be protected under Section 53(A) of Transfer of Property Act as defendants have not made any such averment in the written statement.
31 Section 53-A of Transfer of Property Act talks about doctrine of part performance, which reads as under:-
53 A. Part performance- "Where any person contracts to transfer for consideration any immovable property by writing, signed by him or on his behalf from which the terms necessary to constitute, the transfer can be ascertained with reasonable certainty, and Suit no. 900/08 Page no. 14/23 the transferee has, in part performance of the contract, taken the possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
32 A perusal of Section 53-A of Transfer of Property Act clearly shows that for seeking protection from ejectment against the owner, the transferee is required to show that there exists a written contract in pursuance of which possession was handed over to them. The defendant no. 1 & 2 have got the possession of the suit property in pursuance of an agreement to sell executed by plaintiffs in their favour. However, agreement to sell executed by plaintiffs in favour of defendant no. 1 & 2 Suit no. 900/08 Page no. 15/23 are not registered. Section 17 (1-A) has been inserted in the Indian Registration Act by Amendment Act 2001 which deals with doctrine of part performance. Section 17 (1-A) is reproduced as under:-
"(1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53-A of Transfer of Property Act, 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 53-A. "
33 A perusal of Section 17 (1-A) of Indian Registration Act, makes it absolutely clear that to qualify for the protection of part performance, it must be shown that the agreement to transfer of immovable property is registered, if such agreement has been executed after the commencement of registration /Amendment Act 2001. In the instant case, agreement to sell relied upon by defendant no. 1 & 2 Ex.DW-1/A and Ex.DW-2/A were executed on 03.07.2006 i.e. after the commencement of Amendment Act, 2001. These agreements are not registered but notarized. These agreements thus cannot be used for the purpose of Section 53-A in view of Section 17 (1-A) of Indian Registration Act. The defendant no. 1 & 2, thus cannot protect their possession on the ground that they obtained the possession of the suit property on the basis of agreement to sell.
Suit no. 900/08 Page no. 16/2334 The plaintiffs have claimed themselves as owner of the suit property but have not led any evidence on record. Admittedly, there is no sale deed of suit property in favour of plaintiffs thus plaintiffs cannot be termed owner as per Section 54 of Transfer of Property Act. The defendant no. 1 & 2 have not disputed the ownership of plaintiffs. Moreover, defendant no. 1 & 2 had obtained the possession of the suit property from plaintiffs, therefore, plaintiffs surely have better title than defendant no. 1 & 2. The defendant no.1 & 2 have claimed themselves as owner of the suit property but they have failed to prove on record their ownership rights. The defendant no. 1 & 2 are also not entitled to protect their possession under Section 53A of Transfer of Property Act as the agreement to sell pursuant to which they acquired possession of the suit property are not the registered one, therefore, defence of part performance as contemplated under Section 53 A of Transfer of Property Act is also not available to defendant no. 1 & 2.
35 The defendant no. 1 & 2 have failed to seek execution of sale deed qua the suit property in their favour nor they have filed any suit for specific performance against plaintiffs qua agreement to sell executed in their favour. The defendant no. 1 & 2 have also not filed any counter claim in the instant suit seeking direction to plaintiffs to execute sale deed in their favour nor the agreement to sell executed in favour of defendant no. 1 & 2 was registered. Therefore, protection of Section 53 A of Transfer of Property Act is not available to them. In these circumstances, though the defendant no. 1 & 2 have paid Rs.10,60,000/- to the plaintiffs as pleaded by plaintiffs in the plaint, but they cannot retain the Suit no. 900/08 Page no. 17/23 possession of the suit property and are required to handover the same to the plaintiff.
36 The plaintiff has sought recovery of possession of the suit property on the ground that entire sale consideration has not been paid by the defendant no. 1 & 2. The plaintiff themselves have pleaded in para-14 of the plaint that they received Rs.10,60,000/- from defendant no. 1 & 2. The said amount was received by them towards the sale consideration of the suit property, therefore, plaintiffs cannot be allowed to retain the said amount paid by defendant no. 1 & 2 to them as sale consideration. The plaintiff are thus required to repay the above amount of Rs.10,60,000/- to the defendant no. 1 & 2 which they received from them.
37 In view of my discussion, my issue wise findings is as under:-
ISSUE NO. 1 Whether the plaintiff is entitled for a decree of possession with respect of the suit property admeasuring 308 sq. yards, Khasra no. 1 and 211 sq. yards plus 35 sq. yards constructed portion in Khasra no. 12, situated in the abadi of Pratap Nagar at Village Saboli, Shahdara, Delhi ? OPP ALTERNATIVE Whether the plaintiff is entitled for recovery of ISSUE Rs. 5,98,850/- against the defendant? OPP In view of the above, I am of the considered view that plaintiffs have failed to prove on record that they are the owner of the suit. The plaintiffs, however have surely proved on record that they have better title than defendant no. 1 & 2. The plaintiffs have also proved on record that they delivered the possession of the suit property to defendant no. 1 & 2 Suit no. 900/08 Page no. 18/23 therefore they are entitled to recover the possession from the defendants. The defendant no. 1 & 2 have claimed themselves as owner of the suit property but they have failed to substantiate their plea. The defendant no. 1 & 2 are also not entitled for the protection of Section 53 A of Transfer of Property Act as agreement sell pursuant to which they had taken the possession of the suit property are not registered one. The defendant no. 1 & 2 thus cannot protect their possession under the law and are required to deliver the possession of the suit property to the plaintiff. The plaintiffs are thus entitled for decree of possession and are not entitled for the alternative relief. The plaintiff has thus discharged the onus of Issue No. 1, same is accordingly accordingly decided in favour of the plaintiffs.
38 ISSUE NO. 2 Whether the plaintiff is entitled for interest, if so, at what rate and for what period? OPP In view of my finding on Issue No. 1, I am of the considered view that plaintiff is not entitled for any interest as claimed. Issue No. 2 is accordingly decided against plaintiffs.
39 ISSUE NO.3 Whether the plaintiffs are entitled for decree of declaration against defendant no. 1 & 2 thereby declaring the irrevocable power of attorney dated 03.07.2006 and other documents executed in their favour as null and void? OPP In view of my above discussion, I am of the considered view that plaintiff is entitled for a decree of declaration against defendant no. 1 & 2 thereby declaring irrevocable general power of attorney as well as other documents such as agreement to sell, receipt, possession letter, will etc. Suit no. 900/08 Page no. 19/23 dated 03.07.2006 executed by plaintiffs in favour of defendant no. 1 & 2 as null and void. The plaintiffs have successfully discharged the onus of Issue No. 3, same is accordingly decided in favour of plaintiffs.
40 ISSUE NO. 4 Whether the plaintiff is entitled for decree of declaration thereby declaring the agreement to sell, GPA, Deed of Will, Possession Letter, Payment Receipt executed by defendant no. 1 in favour of defendant no. 3 as null and void? OPP In view of my finding on Issue No. 1 & 3, I am of the considered view that plaintiffs are entitled for a decree of declaration, declaring the agreement to sell, GPA, Will, Possession letter, Payment, Receipt executed by defendant no. 1 in favour of defendant no. 3 as null and void. The plaintiffs have successfully discharged the onus of Issue No. 4, same is accordingly decided in favour of the plaintiff.
41 ISSUE NO. 5 Whether the plaintiff is entitled for decree of declaration thereby declaring the agreement to sell, GPA, Deed of Will, Possession Letter, Payment receipt executed by defendant no. 2 in favour of defendant no. 4 dated 11.04.2008 as null and void document? OPP In view of my finding on Issue No. 1 & 3, I am of the considered view that plaintiffs are entitled for decree of declaration thereby declaring the agreement to sell, deed of will, possession letter, payment, receipt dated 11.04.2008 executed by defendant no. 2 in favour of defendant no. 4 as null and void. The plaintiffs have successfully discharged the onus Issue No. 5, same is accordingly decided in favour of plaintiffs.
Suit no. 900/08 Page no. 20/2342 ISSUE NO. 6 Whether the plaintiff is entitled for decree of permanent injunction thereby restraining the defendant permanently, from selling, alienating, mortgaging or creating any third party interest in the suit property? OPP In view of my above discussion, I am of the considered view that plaintiffs are entitled for decree of permanent injunction restraining the defendant permanently from selling, alienating, mortgaging or creating any third party interest in the suit property. The plaintiffs have successfully discharged the onus of Issue No. 6, same is accordingly decided in favour of the plaintiffs.
43 ISSUE NO. 7 Whether the plaintiff has no cause of action for filing the present suit against the defendants ? OPP In view of the above discussion, I am of the considered view that plaintiffs have cause of action for filing the present suit. Issue No. 7 is accordingly decided.
44 ISSUE NO. 8 Whether the plaintiff is entitled for the relief claimed? OPP In view my finding on Issue No. 1 & 3, I am of the considered view that plaintiffs are entitled for the relief claimed by them against the defendants. The plaintiffs have successfully discharged the onus of Issue No. 8, same is accordingly decided in favour of plaintiffs.
45 While deciding Issue No. 1, I have held that plaintiffs are entitled to recover possession of the suit property from defendants. The plaintiff had handed over the possession of the suit property to the defendant after receiving an amount of Rs.10,60,000/- as pleaded in para-14 of the plaint. The Suit no. 900/08 Page no. 21/23 plaintiffs received the said amount as sale consideration. The defendant no. 1 & 2 have failed to protect their possession because there was no title document in their favour as contemplated under Section 54 of Transfer of Property Act. They have also failed to protect their possession because agreement to sell pursuant to which they acquired possession from plaintiffs was unregistered. The defendant no. 1 & 2 have failed to protect their possession by implication of law, but they paid the amount of Rs. 10,60,000/- to the plaintiffs as sale consideration. The plaintiffs who have sought recovery of the possession of the suit premises, cannot be allowed to retain the amount of Rs.10,60,000/- which they received from defendant no. 1 & 2. In order to meet the end of justice, plaintiffs are directed to pay the amount of Rs.10,60,000/- to defendant no. 1 & 2 before seeking recovery of possession of suit property from them.
46 RELEIF In view of the above facts and circumstances, the suit filed by the plaintiffs against the defendants is decreed with cost.
A decree for possession is passed in favour of plaintiffs and against the defendants thereby directing the defendants to deliver the possession of suit property admeasuring 308 sq. yds. Khasra No. 1 and 211 sq. yds + 35 sq. yds. constructed portion in Khasra No. 12 situated in Abadi of Pratap Nagar at Village Saboli, Shahdara, Delhi as shown green and red in the Site Plan Ex.PW-1/3.
A decree for declaration is passed in favour of the plaintiffs and against defendant no. 1 & 2 thereby declaring irrevocable GPA along with documents i.e. agreement to sell, GPA, possession letter dated 03.07.2006 executed by plaintiffs in favour of defendant no. 1 & 2 as null and void.
A decree for declaration is passed in favour of the plaintiffs and against Suit no. 900/08 Page no. 22/23 defendants thereby declaring agreement to sell, GPA, Deed of Will, Possession Letter, Receipt executed by defendant no. 1 in favour of defendant no. 3 as null and void.
A decree for declaration is passed in favour of the plaintiffs and against the defendants thereby declaring the agreement to sell, GPA, Deed of Will, Possession Letter, Receipt executed by defendant no. 2 in favour of defendant no. 4 dated 11.04.2008 as null and void.
A decree for permanent injunction is passed in favour of the plaintiff and against the defendants restraining the defendant permanently, from selling, alienating, mortgaging or creating any third party interest in the suit property admeasuring 308 sq. yds. Khasra No. 1 and 211 sq. yds + 35 sq. yds. constructed portion in Khasra No. 12 situated in Abadi of Pratap Nagar at Village Saboli, Shahdara, Delhi. A decree sheet be accordingly prepared.
The decree of recovery of possession, however shall not be executable until plaintiffs pays a sum of Rs. 10,60,000/- to defendant no. 1 & 2. File be consigned to record room after due compliance.
Announced in the open court ( PITAMBER DUTT)
On 11.11.2014 Additional District Judge
Delhi
Suit no. 900/08 Page no. 23/23