Delhi District Court
Shri Chand Babu vs Shri Ajay Vinayak on 6 August, 2012
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE02 (NORTH)
TIS HAZARI COURTS, DELHI
SUIT NO. 606/06
Unique ID No. 02401C0100252002
MEMO OF PARTIES
Shri Chand Babu,
S/o Shri Kalyan Singh,
R/o 32, Sawan Park Extension,
Ashok Vihar, Delhi - 110 052 ...........Plaintiff
VERSUS
1. Shri Ajay Vinayak,
S/o Shri Purshottam Vinayak,
R/o16B/11, Dev Nagar,
New Delhi
2. Shri Surender Mohan,
S/o Shri Jai Kishan.
R/o 16B/11, Dev Nagar,
New Delhi ............Defendants
Date of institution of the Suit: 27.07.1999
Date on which judgment was reserved: 16.07.2012
Date of announcement of Judgment: 06.08.2012
SUIT FOR POSSESSION, RECOVERY OF DAMAGES/MESNE PROFITS,
INTEREST AND COSTS
JUDGMENT
1. This is a suit for possession and recovery of damages/mesne profits filed by the plaintiff against the defendants.
Suit No. 606/06 1 Case of the plaintiff
2. That the plaintiff had purchased a half undivided share of property bearing no. 16B/11, Dev Nagar, New Delhi from the previous owner Sh. Parvindar Khari vide duly registered sale deed dated 30.10.1998. The other coowner i.e. defendant no. 2 and the plaintiff partitioned the said property amongst themselves by registered deed of partition dated 20.01.1999. It is averred that the plaintiff became the absolute owner of the northern side of the suit property. As per the plaintiff, defendant no. 1 is in unauthorized occupation of the ground floor of the northern side of the property no. 16B/11, Dev Nagar (which portion shall be referred to as the suit property hereon) of which the plaintiff is the absolute owner. Vide notice dated 05.04.1999 the plaintiff intimated the occupiers of the property i.e. defendant no. 1, Sh. N. M. Bahel and Sh. J. K. Pali that that the plaintiff had become the absolute owner and called upon them to pay the rent/damages. Defendant no. 1 thereafter sent a reply dated 12.04.1999 based on false pleas and contended that defendant no. 2 had executed an agreement to sale in favour of the defendant no. 1. Plaintiff claims to be entitled to damages atleast @ 10,000/ per month from defendant no. 1 for his illegal use and occupation of the suit premises. Plaintiff further claims to be entitled to damages w.e.f. November, 1998 as the plaintiff became one of the co owners of the suit property w.e.f. 30.10.1998 and states that since then the defendant no. 1 is in illegal and unauthorized occupation of the suit property. Plaintiff states that defendant no. 2 has been made a proforma party for the reason that defendant no. 1 has taken a false plea in the reply dated 12.04.1999 and states that no relief is Suit No. 606/06 2 claimed against the defendant no. 2.
Issuance of Summons & Appearance of Defendants Summons to the suit were served upon the defendants. Written statement was filed by defendant no. 1 whereas as defendant no. 2 was proeeded exparte. Case of the Defendant No. 1
3. The defendant no. 1 filed the written statement taking the following preliminary objections viz;
1. The present suit is not maintainable because defendant no. 1 has been in occupation of the suit property in part performance of agreement to sell dated 17.11.1991 executed between defendant no. 1 and defendant no. 2.
2. That the partition deed dated 27.01.1999 executed between the plaintiff and defendant no. 2 is sham and fraudulent transaction for defeating the vested right of defendant no. 1.
3. Defendant no. 1 had filed a suit for permanent injunction titled 'Ajay Vinayak Vs. S.C. Verma & Ors. against the father and brothers of Sh. Parvindar Khari, the alleged predecessor in the interest of the plaintiff, who attempted to trespass into the property of defendant no. 1 and vide order dated 03.01.1992 the court had restrained the defendants from interfering in the possession of defendant no. 1. A Local Commissioner was appointed by the court in that matter who also confirmed the possession of defendant no. 1 in the suit property.
4. Plaintiff has no locus standi to initiate the present suit since the defendant no. 1 derives his rights from defendant no. 2 under agreement to sell dated 17.01.1991 Suit No. 606/06 3 and defendant no. 2 is liable to specifically perform the contract in favour of defendant no. 1. It is alleged that Sh. Parvindar Khari the alleged predecessor enter interest of the plaintiff is also bound by the agreement to sell executed by defendant no. 2 since he stepped into the shoes of defendant no. 2.
1. Non joinder of necessary and proper party Sh. Parvindar Khari.
2. Improper valuation of the suit for the purpose of court fees and jurisdiction. On Merits
4. The claim of the plaintiff has been denied. Defendant denied that plaintiff purchase half undivided share in the suit property from Sh. Parvindar Khari. It is also denied that plaintiff and defendant no. 2 partitioned the suit property vide partition deed dated 20.01.1999. It is also denied that by virtue of same the plaintiff became the owner of the northern side of the suit property and it is averred that the northern side of the suit property was subject matter of the agreement to sell dated 17.11.191 between the defendant no. 1 and defendant no. 2. It is stated that in pursuant to the agreement to sell dated 17.11.1991 the defendant no. 1 was put in possession of the said northern side of the suit property by defendant no. 2 and defendant no. 1 has been in possession of the property in part performance of the contract. Defendant no. 1 denies that he is in unauthorized occupation of the ground floor of the northern side of the suit property and submits that the purported legal notice dated 05.04.1999 was suitably replied to, by the defendant vide reply dated 12.04.1999. Defendant no. 1 also denies that defendant no. 2 is only a proforma party and the presence of the defendant no. 2 is vital and necessary for Suit No. 606/06 4 the proper adjudication of the present dispute. Defendant no. 1 denies that the plaintiff is entitled to any relief and prays for dismissal of the suit. Replication to the written statement of defendant no. 1
5. Plaintiff filed replication to the written statement of defendant no. 1 denying the contents thereof and also denied that partition deed between the plaintiff and defendant no. 2 was a sham and fraudulent transaction to defeat the rights of the defendant no. 1. Plaintiff also denied any knowledge of the suit for permanent injunction filed by the defendant no. 1. Plaintiff further denied that the previous co owner Sh. Parvindar Khari was bound by the agreement to sell or that the the plaintiff was liable to enforce the contract as alleged. Plaintiff further submitted that plaintiff had received a copy of reply sent by defendant no. 2 in reply to the notice dated 19.11.1999 of defendant no. 1 according to which it was submitted that defendant no. 2 and defendant no. 1 had not entered into any agreement to same and defendant no. 1 was allowed to occupy the premises as Care Taker only. Further, defendant no. 1 was given a General Power Attorney which was revoked by defendant no. 2 on 26.08.1996. It is further submitted that the alleged agreement to sell was signed by defendant no. 2 in good faith but the same was merely a sham document without any consideration. Even otherwise, defendant no. 2 being only one of the coowners could not have entered into the alleged agreement to sell without the consent of the other coowners. It was also stated that the agreement to sell could only have been enforced within a period of three years from the date of its alleged execution.
Suit No. 606/06 5 Issues
6. Vide order dated 19.12.2000 the following issues were framed in this matter;
1. Whether the plaintiff is the owner of the property in suit?
2. Whether the partition by which the property in suit fell to the share of the plaintiff is vitiated by collusion between the predecessor in interest of the plaintiff and defendant no. 2, if so, its effect?
3. Whether the defendant no. 1 is in possession of the property in suit in part performance of an agreement dated 17.11.1991 executed between defendant n o. 2 and defendant no. 1?
4. Whether the suit is undervalued for purpose of court fee and jurisdiction?
5. To what relief if any is the plaintiff entitled.
Vide order dated 31.05.2012 an additional issue was framed by this court as follows 1A. Whether the jurisdiction of this court is barred U/s 50 of Delhi Rent Control Act? OPD Evidence
7. In order to prove his case plaintiff examined himself as PW1 and was subjected to cross examination by defendant no. 1. Defendant no. 1 examined himself as DW1 and relied on Ex. DW1/1 to Ex. DW1/7 and was subjected to cross examination by plaintiff.
Arguments Suit No. 606/06 6
8. Thereafter lengthy final arguments were addressed by Ld. counsel for the parties. I have given my thoughtful consideration to the arguments and have also scrutinized the record carefully. My issuewise findings are as follows; Issue no. 1 Whether the plaintiff is the owner of the property in suit?
9. The property in suit is the ground floor portion on the northern side of the property no. 16B/11, Dev Nagar, New Delhi. The plaintiff averred in the pleadings that by virtue of a registered sale deed Ex. PW1/1plaintiff had purchased half undivided share in property bearing no. 16B/11 Dev Nagar from the previous owner Parvinder Khari on 30/10/1998. Thereafter it is stated that by virtue of the registered partition deed dated 20/01/1999, Ex. PW1/2 the plaintiff became the absolute owner of the northern side of the aforesaid property. The plaintiff in his crossexamination stood firm to his ground that sale deed in respect of the undivided portion of the property no. 16B/11, Dev Nagar, New Delhi was executed in his favour by his son Sh. Kapil Kumar as attorney of Sh. Parvinder Khari.
10. It was contended by defendant no. 2 that the sale deed Ex. PW1/1 had not been duly proved since the executant of the same had not been produced and nor had the partition deed been proved since the plaintiff did not identify defendant no. 2's or his own signatures on the partition deed and also did not produce any witnesses to prove the same and merely exhibiting the document does not mean that the same stands proved as s held in 1995 (II) AD (Delhi) 189. Reliance on the aforementioned judgment of the Hon'ble High Court is misplaced in the facts of the present case. The fallacy in the argument of the defendant is that as per section 64 Suit No. 606/06 7 of the Indian Evidence Act, 1872, documents are to be proved by primary evidence and primary and indeed, the best evidence available for proving the sale deed was the original registered sale deed. The record shows that the original registered sale deed was produced at the time of evidence. A registered sale deed constitutes proof of title. The certified copy of the sale deed was duly proved by the plaintiff as Ex. PW1/1, who had brought the original of the same during evidence. The certified copy of the partition deed was proved as Ex. PW1/2 and the original of the same was also seen and returned at the time of evidence. In fact, when the defendant raised the issue of lack of jurisdiction of this court during the course of final arguments, the record pertaining to the partition deed was summoned from the SubRegistrar's office, to compare the certified copy of the partition deed Ex. PW1/2 with the original and the Ex. PW1/2 duly conformed with the original. In addition, the contesting defendant in his crossexamination as DW1, admitted that a partition had been effected between the plaintiff and defendant no. 2 and that there had been no partition between Sh. Parvinder Khari and defendant no. 2 . There is thus a clear admission by the defendant no. 1 regarding the factum of partition between the plaintiff and defendant no. 2. Therefore, the sale deed Ex. PW1/1 and the partition deed Ex. PW1/2 stand duly proved. The contesting defendant has failed to demolish the veracity of these documents. By virtue of the registered sale deed, the plaintiff had obtained a right/interest as coowner of the undivided property and the subsequent partition, admitted by defendant no. 1 and effected by way of a duly registered partition deed, vested ownership in the plaintiff of the property in suit i.e. Suit No. 606/06 8 the ground floor portion of property no. 16B/11, Dev Nagar, New Delhi.
In view of the aforesaid discussion, I hold that the plaintiff had become owner of the property in suit. Issue decided in favour of the plaintiff. Issue no. 1A Whether the jurisdiction of this court is barred under section 50 of the Delhi Rent Control Act? OPD
11. This issue was framed at the stage of final arguments, vide order dated 31.05.2012, at the behest of defendant no. 2 upon an application by the said defendant under section 9 C.P.C. read with section 50 D.R.C. Act filed on 29.05.2012. It was argued eloquently by ld counsel for the contesting defendant that he relied only on the averments made by the plaintiff in his plaint in support of his argument that this court lacked the inherent jurisdiction to entertain the present suit. Ld counsel for defendant no. 1 stated that the plaintiff sought recovery of possession of the suit property from the defendant on the ground that defendant no. 1 was an unauthorised occupant of the suit property however, the plaint did not disclose as to the manner in which the said defendant came into possession of the suit property and the basis on which the said defendant became an unauthorised occupant in the suit property, but the plaintiff had relied on the sale deed dated 30.10.1998 Ex. PW1/1 and the partition deed dated 20.01.1999, i.e. Ex. PW1/2. It was argued that the sale deed merely recorded the status of the said defendant as unauthorised occupant as on 30.10.1998 however the partition deed contained an annexure 'B' which was marked as Mark A vide order dated 31.05.2012 after the original record pertaining to the partition deed had been summoned from the Registrar's office. In this document, defendant no. 1 is shown to be an unauthorised Suit No. 606/06 9 occupant since 26.08.1996 and previous tenant of defendant no. 2 at a monthly rent of Rs. 300/ per month and an explanation is appended that defendant no. 1 Sh. Ajay Vinayak entered into the property as attorney of Defendant no. 2 Sh. Surinder Mohan, which stood revoked vide notice dated 26.08.1996. Ld counsel for defendant no. 1 argued that the import would thus be that according to the plaintiff, the defendant no. 1 was a tenant on a monthly rent of Rs. 300/ from 13.12.1991 till 26.08.1996 and thereafter he allegedly became an unauthorised occupant of the suit property. It was argued that since the plaintiff's own document showed defendant no. 1 as a tenant at a rate of rent of Rs. 300 per month, therefore the only recourse available to the plaintiff to evict the defendant no. 1 from the suit premises was by approaching the Rent Control Tribunal and the jurisdiction of the civil court to entertain the present suit for recovery of possession was thus barred.
Per contra, ld counsel for the plaintiff argued that issues arise only from the pleadings of the parties and that it was neither party's case that the defendant was a tenant of the plaintiff. Ld. Counsel for the plaintiff argued that in fact, while the plaintiff's case was that the defendant was an unauthorised occupant of the suit premises, the case of defendant no. 1 was that he was in possession of the property in part performance of an agreement to sell with defendant no. 2. Thus, the jurisdiction of the civil court to entertain the present suit was not at all barred.
12. There is no doubt that legal bar as for instance, one pertaining to the inherent lack of jurisdiction of the court goes to the very root of the matter and could render an entire proceeding a nullity. Considering this, when the application under section 9 Suit No. 606/06 10 C.P.C. read with section 50 D.R.C. Act was filed by the said defendant, I had disposed of the application by framing an additional issue under order 14 rule 5 CPC instead of rendering a decision on the application as such, which could have led to delaying the proceedings of the suit which was at the verge of conclusion of final arguments. The argument of ld counsel for defendant no. 2 at first blush, would sound attractive especially in light of the authorities relied on in this regard viz. 1996 IV AD (Delhi) 270, JT 2010 (12) SC 430, ILR 1985 Delhi 151, 103 (2003) DLT 20 (SC) , AIR 1980 Delhi 121, MANU/DE/1884/2010, AIR 2003 SC 3789 and 2011 (1) ALD 65 (SC). I have perused the aforesaid judgments and I am in due deference to them. They are all authorities for what they hold. However, the Hon'ble Supreme Court in Abdulla Bin Ali versus Galappa 1985 (2) SCC 54, in a case wherein the appellant had filed a suit for possession and mesne profits treating the defendants as trespassers and one of the defences taken in the written statement had been that the civil court did not have jurisdiction to try the suit as the plaintiff had pleaded in the plaint that second defendant was tenant of the disputed plot, had held that though the plaintiff had referred to the tenancy of the second defendant, the suit had been filed treating the defendants as trespassers as the defendants had denied their title and the suit was maintainable before the civil court.
13. It is extremely pertinent to note that in the present suit, even if the averments contained in the plaint are seen, the plaintiff nowhere claims the defendant no. 1 to be, or ever have been his tenant. The defendant no. 1 sets up title in himself and bases his defence on the ground that he is in possession of the suit property in part Suit No. 606/06 11 performance of an agreement to sell with defendant no. 2. In a similar fact situation before the Hon'ble High Court of Delhi, in 2002(2)RCR399 Hari Singh(deceased) through L.R.s versus S.S. Jogi, where the plaintiff had put up the case that the defendant was the unauthorised occupant of the disputed premises, this gave a cause of action to the plaintiff and in response thereto, the defendant pleaded that in part performance of the agreement he had come into possession. It was observed that Plaintiff did not plead that the defendant came into possession because of agreement to sell but at the same time this defence had been set up by the defendant and the suit filed was maintainable. Reference was made in that case to the judgment of the Hon'ble Apex Court in Firm Sriniwas Ram Kumar versus Mahabir Prasad and Ors., AIR 1951 SC 177 a portion of which is quoted as hereunder "The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case where there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff could have made in the suit there was nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes..."
14. Even if only the contents of the plaint and documents on which the plaintiff relies are seen, then as per settled law, the averments in the plaint are required to be Suit No. 606/06 12 taken at face value and assumed to be correct for the purpose of testing whether the plaint ought to be rejected on ground of bar of law. In this case, the plea of the plaintiff remains that the defendant no. 1 is an unauthorised occupant and not that he is, or ever was, a tenant. It would indeed be an anomalous situation where though neither party admits to a landlordtenant relationship, the civil court decides to relegate the parties to another round of litigation before the authority under the Rent Control Act for availing any relief. The judgments relied on by the defendant no. 1 are distinguishable on facts. The defendant has not discharged his onus regarding lack of jurisdiction of the civil court. Issue no. 1A accordingly decided in favour of the plaintiff and against defendants.
Issue no. 2 Whether partition by which the property in suit fell to the share of the plaintiff is vitiated by collusion between the predecessorin interest of the plaintiff and defendant no. 2, if so, its effect, and Issue no.3 Whether defendant no. 1 is in possession of the property in suit in part performance of agreement to sell dated 17.11.1991 executed between defendant no. 2 and defendant no. 1.
15. These issues are being taken up together.
Defendant no. 1 in the preliminary objections taken in his written statement stated that he was in occupation of the suit property in pursuance to an agreement to sell dated 17.11.1991 executed in his favour by defendant no. 2.
Defendant no. 1 further averred in the written statement that the partition deed dated 27/01/1999 was a sham, fraudulent and collusive transaction in order to defeat Suit No. 606/06 13 the vested right of the said defendant in the suit property.
Counsel for defendant no.1 argued that no mention of the agreement to sell was made by the plaintiff in the plaint and it was only after the written statement was filed by the said defendant taking the plea of protection under section 53A of the Transfer of Property Act that the plaintiff in his replication stated for the first time that it had come to his knowledge from defendant no. 2 that such an agreement had been executed and signed between defendant no. 1 and defendant no. 2 but according to defendant no. 2 the same was a sham document executed without any consideration. It was argued that the existence of the agreement to sell stood admitted. Ld counsel for the defendant no. 1 contended that since the agreement to sell and the general power of attorney along with the said agreement to sell were executed prior to plaintiff admittedly having any interest in the property, therefore any allegation that the same was a sham document was merely hearsay. It was argued that a perusal of the agreement to sell and G.P.A. would show that the defendant no. 2 had agreed to sell half undivided share in the immovable property no. 16B/11, Dev Nagar for valuable consideration and on receipt of part payment handed over symbolic possession to the defendant no. 1 as the entire property was in possession of tenants. Further it was argued that defendant no. 1 was only required to pay the balance amount after defendant no. 2 sought the permission from the competent authorities to execute and register the sale deed since the property was leasehold property. It was also argued that the alleged revocation of the G.P.A. by defendant no.2, which was in favour of defendant no. 1 apart from not having been proved, was Suit No. 606/06 14 of no consequence since it had given the power to sell to the defendant no. 1 and since the same created an interest in the defendant no. 1 was irrevocable in nature. It was further argued that the burden was on the plaintiff to prove that the agreement to sell was a sham document which has not been done by the plaintiff. Defendant claims that he was put in actual physical possession of the suit property on 14.12.1991 when the premises was vacated by the tenant Sh. Virender Bahadur. Defendant no. 1 relied on possession letter Ex. DW1/3. Ld counsel for the defendant also placed heavy reliance on the letter dated 15.05.2000 written by defendant no. 2 to defendant no. 1 and also a letter dated 20.04.2004, exhibited as Ex. DW1/P4, written by Sh. J.K. Pali attorney of defendant no. 2 to the plaintiff in both of which it is stated that Sh. Virender Bahadur handed over the peaceful possession of the portion under his tenancy to the defendant no. 2 on 14.12.1991 and possession of the same was handed over to the defendant no.1. It is hence argued that in part performance of the agreement to sell dated 17.11.1991, the actual physical possession of the suit property was handed over to defendant no. 1.
16. In Nathulal v. Phool Chand 1970 2SCR 854, The Hon'ble Supreme Court while interpreting Section 53A culled out the following conditions to be fulfilled for making out the defence of part performance to an action in ejectment by the owner, as under: (1) that the transferor has contracted to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable Suit No. 606/06 15 certainty:
(2) that the transferee has, in part performance of the contract,, taken possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract;
(3) that the transferee has done some act in furtherance of the contract; and (4) that the transferee has performed or is willing to perform his part of the contract. If these conditions are fulfilled then notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him is debarred from enforcing against the transferee 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.
17. In the present case, the defendant no. 1 has relied upon the notarised Agreement to Sell Ex. DW1/1 and the notarised General Power of Attorney Ex. DW1/2 dated 17.11.1991 and Ex. Dw1/3 dated 14.12.1991 to show that it was in pursuance to, and in part performance of the written agreement to sell entered into by him with defendant no. 2 that defendant no. 1 had taken possession of the suit Suit No. 606/06 16 property. The documents Ex. DW1/1 and Ex. DW1/2 are unregistered documents and an objection was raised by ld counsel for the plaintiff at the time of defendant's evidence that these documents were unregistered and as they intended to create an interest in recovering monthly rent from immovable property, they could not be exhibited. No doubt the documents which intend to create interest in immovable property must be registered, however the defendant has relied on the documents to substantiate his plea of part performance and the documents were executed in 1991. Prior to the 2001 Amendment to Section 53 A of the Transfer of Property Act, in order to claim protection of the said section, the agreement to sell was not required to be a registered instrument, so the objection regarding the agreement to sell being unregistered cannot be sustained and the original document was rightly exhibited. The plaintiff in his replication admitted the existence of the agreement to sell inasmuch as the plaintiff stated that the same was signed by the defendant no. 2 in good faith although it was a sham document without any consideration. The argument of the defendant is that he came into possession of the suit property by virtue of the agreement to sell as by way of the said agreement only symbolic possession was granted to the defendant no. 1 and on 14.12.1991, after Virender Bahadur vacated the premises he came into possession of the same. Defendant has relied on Ex. DW1/3 in this regard, which is a letter in original, purportedly written by Sh. Virender Bahadur. Defendant also relied on AIR 1970 SC 546, AIR 2002 SC 960, (2004) 5 SCC 88, AIR 1979 RAJ 200 and AIR 2003 SC 2508 for the proposition that even if the period of limitation for seeking specific performance of Suit No. 606/06 17 the agreement stood barred by limitation, the defendant could still seek protection under section 53A of the Transfer of Property Act. The law is well settled on this aspect and even defendant no. 1 is correct in contending that if a party's right to claim specific performance becomes barred by law, it does not disentitle him from seeking the protection of the doctrine of part performance.
18. However, would the defendant no. 1 in the present case be entitled to protection of section 53A of the Transfer of Property Act?
When defendant claims protection from recovery of possession, by virtue of Section 53A of Transfer of Property Act, the burden is on the defendant to plead and prove all the essential conditions enunciated in the Section. Even if defendant no.1's case is that he was put in possession of the suit property towards part performance of the agreement for sale, to claim the protection of Section 53A of the Act, defendant has to establish that he has done some act in furtherance of the contract and has performed or is willing to perform his part of the contract. The Honourable Supreme Court in the case of Sardar Govindrao Mahadik and another Vs. Devi Sahai and others, AIR1992SC989 has held thus: Section 53A requires that the person claiming the benefit of part performance must always be shown to be ready and willing to perform his part of the contract and if it is shown that he was not ready and willing to perform his part of the contract, he will not qualify for the protection of the doctrine of part performance.
Suit No. 606/06 18 In yet another decision of the Honourable Supreme Court rendered in the case of Mohanlal Vs. Mirza Abdul Gaffar, 19961SCC639, the Honourable Supreme Court held as follows: Under Section 16(c) of the Specific relief act, 1963, the plaintiff must plead in the plaint, his readiness and willingness from the date of the contract till date of decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish the same. Equally, when the transferee seeks to avail of Section 53A to retain possession of the property which he had under the contract, it would also be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contract. He who comes to equity must do equity. The doctrine of readiness and willingness is an emphatic way of expression to establish that the transferee always abides by the terms of the agreement and is willing to perform his part of the contract. Part performance, as a statutory right, is conditioned upon the transferee's continuous willingness to perform his part of the contract in terms covenanted thereunder.
19. Defendant no. 1 has merely stated in his written statement that he has been in occupation of the suit property in part performance of the agreement to sell dated 17.11.1991 and reiterated the same averment in his evidence by way of affidavit Ex. DW1/A. Neither has any averment been made, nor any evidence has been led by the defendant to prove that he has done some act in furtherance of the agreement to Suit No. 606/06 19 sell. Suit for injunction filed by the defendant against the father of Sh. Parvinder Khari cannot by any means be considered to be act in furtherance of the contract. The act in furtherance of the contract must have a real nexus with the contract. Even the document Ex. DW1/3 on which the defendant no. 1 relies cannot be said to be proved as per law since it is purported to be written by Sh. Virender Bahadur, who has not been produced as a witness. The defendant has also failed to establish that he has been ready and willing to perform his part of the contract. It was argued by Ld counsel for defendant no. 1 that the occasion would arise for the defendant to perform his part of the contract only upon the defendant no. 2 getting the requisite permission from the authorities. As per Ex. DW1/1, out of the total consideration of Rs. 1,75,000/ Defendant no. 1 had paid Rs. 20,000/ as earnest amount. Clause 5 of Ex. DW1/1 states as follows 'That the first party shall get the proper sale deed registered in favour of the second party whenever the permission of the same will be granted by the appropriate authority.'
20. From the terms of Ex. DW1/1 it does not appear that the payment of the balance consideration was made dependent upon the sale deed being executed, and nothing prevented the defendant from making the balance payment and serving a notice upon the defendant no. 2 to comply with the terms of the agreement. The defendant no. 1, it appears, did not do so and chose to remain silent instead. Therefore to my mind, the submission that the occasion for the defendant no. 1 to Suit No. 606/06 20 show his readiness and willingness would arise only after the permission was obtained from the authorities is untenable.
21. It was further the contention of the defendant no. 1 that after the notice of defendant no. 2 dated 26.08.1996 it was clear that defendant no. 2 was not willing to perform his part of the contract so readiness and willingness of the defendant became immaterial. Again, going strictly by the law, the person seeking protection of part performance has to show that he has performed or is willing to perform his part of the contract. This argument of the defendant appears to be merely a camouflage for the fact that defendant has not proved his readiness and willingness to perform his part of the contract. Admittedly, the defendant no. 1 did not file any suit for specific performance against defendant no. 2 and he also did not plead that he had made any further payment of the consideration amount. Therefore, from the record, it is clear that there is absolutely no evidence to support the case of the defendant no.1that he has performed any part of the agreement in furtherance of the contract or that he was ready and willing to perform his part of the contract.
22. Pertinently, it was argued by Ld. Counsel for the plaintiff that even if assuming for the sake of arguments that the defendant was entitled to protection under section 53 A of the T.P. Act, the protection would only be available against the transferee and not against the third party and placed reliance on Rambhau Gajre versus Narayan Bapuji Dhotra 2004 (8) SCC 614 wherein it was held as follows "Protection provided under section 53 A of the Act to the proposed transferee Suit No. 606/06 21 is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains the full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party."
23. The Ex. DW1/1 specifies that it pertains to onehalf undivided share of defendant no. 2 who is admittedly, a coowner in the property. Parvinder Khari sold his undivided share to the plaintiff in the year 1998. The defendant never pleaded that there had ever been an oral partition between the defendant no. 2 and Sh. Parvinder Khari however this contention was raised at the time of final arguments and ld counsel for the defendant no. 1 laid stress on letter dated 26.08.1996 and another letter which though not exhibited was placed on record by the plaintiff dated 15.02.2000 to draw the inference that there had been an oral partition between the defendant no. 2 and Sh. Parvinder Khari. The contention is unsustainable for two main reasonsi). The defendant no. 1 never raised this contention in his written statement or led any evidence in this regard therefore this argument is beyond the pleadings of the defendant. And, ii). The documents of the defendant no. 1 Ex. DW1/1 and DW1/2 on which the defendant bases his entire claim unambiguously records that defendant no. 2 had an undivided half share in the property no. 16B/11 Suit No. 606/06 22 Dev Nagar and oral evidence cannot take the place of documentary evidence, more so when the defendant's own document belies defendant's argument. Now, defendant no.1 could well argue that the alleged oral partition took place after Ex. DW1/1 was entered into between the defendant no. 1 and defendant no. 2. Defendant no. 1 has however himself negatived this contention by relying on Ex. DW1/7 which is the reply dated 12.04.1999 sent by defendant no. 1 to the plaintiff, wherein the defendant claimed to have become owner with respect to half undivided portion of the property bearing no. 16B/11 Dev Nagar. Further, a clear admission was made by defendant no. 1 in his crossexamination that there had been a partition between the plaintiff and defendant no. 2 Surender Mohan though he stated that the same was a result of collusion; and also admitted that no partition had taken place earlier between the defendant no. 2 and Parvinder Khari.
24. It is well settled that a coowner owns every inch and every part of the undivided property with the other coowner and no coowner can claim exclusive possession of any particular portion unless and until there is a partition between the coowners. Defendant no.1 was well aware of the fact that he had entered into an agreement for an undivided halfshare of the property. The predecessor in interest of the plaintiff, Sh. Parvinder Khari was not a party to the agreement Ex. DW1/1. The agreement to sell and G.P.A do not confer title on defendant no. 1 therefore, even the rights and liabilities under section 44 of the Transfer of Property Act cannot be claimed by the defendant no. 1. The plaintiff and defendant no. 2 entered into a partition deed dated 20.01.1999 which has been duly proved as Ex. PW1/2 and the Suit No. 606/06 23 defendant no. 2 became owner of the southern portion by virtue of the same. Plaintiff became owner of the northern portion including the suit property and in the partition deed, defendant no. 1 has been shown as unauthorised occupant. The defendant no. 1 has failed to prove his readiness and willingness to perform the contract, and even otherwise, the said defence was available only against defendant no. 1 and not against the plaintiff. The plaintiff cannot be considered to be claiming under the defendant no. 2 and the protection of part performance would not be available to the defendant no. 1 against the plaintiff. Defendant's contention that plaintiff has stepped into the shoes of defendant no. 2 is incorrect and judgments relied on by the defendant i.e. AIR 2003 All 276 and AIR 1942 PC 54 are distinguishable on facts. The ratio of AIR 1959 Mysore would be applicable where a deed of transfer was executed by the father in respect of the joint family property and the transferee was not allowed to invoke section 53A against the sons who were not parties to the transaction. The judgment of the Hon'ble Apex Court in Rambhau's case (supra) is squarely attracted to the facts of the present case and as against the present plaintiff, defendant no. 1 cannot press into service the provisions of section 53 A to claim protection of part performance.
Therefore, defendant no. 2 is not entitled to the protection of section 53A of the Transfer of Property Act.
25. While advancing arguments on issue no. 3, defendant no. 1 stated that the plaintiff and defendant no. 2 had family relations. It was contended that defendant Suit No. 606/06 24 no. 2 had been made a party but deliberately allowed to be proceeded exparte by the plaintiff and was not brought to the witness box to prove that the agreement to sell Ex. DW1/1 was a sham document. It was argued that if the defendant no. 2 believed that the agreement to sell was a sham document then he was required to file an appropriate civil suit for getting the same declared as null and void. That having not been done, and the statutory period having expired, the plaintiff having stepped into the shoes of the defendant no. 2 , was bound by Ex. DW1/1. It was also argued that in civil suit no. 86/2000 instituted by the defendant no. 1, Sh. Parvinder Khari got his statement recorded i.e. Ex. DW1/4 wherein he stated that defendant no. 1 was in lawful possession of the suit property and on the basis of that, the suit was disposed of vide order Ex. DW1/5. It was argued that this fact was not disclosed in the present suit but a suit had been filed for declaration that the statement was null and void which was dismissed vide judgment Ex. DW1/6.
26. In order to prove collusion, the defendant no. 1 was required to prove that the plaintiff had notice of the agreement to sell having been executed by the defendant no. 2 in favour of defendant no. 1. The Ex. DW1/1 has been executed by the defendant no. 2. Neither the plaintiff nor the predecessor in interest Sh. Parvinder Khari is a party to the same. No knowledge of the agreement to sell can be imputed to the plaintiff. Simply because there are family relations between the plaintiff and defendant no. 2, the defendant no. 1 cannot require the court to draw an inference of collusion between the parties involved. Defendant no. 1 has claimed that Sh. S.C.Verma, the father of the predecessor in interest of the plaintiff i.e. Sh. Parvinder Suit No. 606/06 25 Khari, had knowledge of the transaction, but he did not produce the said Sh. S.C.Verma as a witness to give testimony in this regard. The plaintiff has denied any knowledge of Ex. DW1/1. Defendant raised the argument that in suit no. 86/2000 the said Parvinder Khari made a statement that the occupation of the defendant no. 1 was lawful. In second appeal against the suit for declaration that the said statement of Sh. Parvinder Khari was null and void, admittedly the matter was remanded back for trial and is still pending. The said statement has already been challenged therefore the matter being subjudice, no reliance either for or against any party can be placed on the statement which was made in another suit by Mr. Khari who is not a party to the present proceedings. Interestingly, Sh. Khari was cited as a witness by the defendant however, he was never produced as a witness in the various opportunities granted to the defendant to lead evidence whereafter the defendant's right to lead further evidence had been closed.
27. The plaintiff had derived interest in the undivided half share of the property from Sh. Parvinder Khari and thereafter a partition had been effected between the plaintiff and Defendant no. 2. Being coowners of joint property, the plaintiff and defendant no. 2 had every right to partition the property for the sake of convenience and enjoyment of the property and it cannot be said that the same had been done to defeat any alleged interest that the defendant no. 1 may have had in the property. The defendant no. 1 has failed to prove that the partition by which the property fell to the share of the plaintiff is vitiated by collusion between the predecessor in interest Suit No. 606/06 26 of the plaintiff and defendant no.2. The judgment cited by the defendant i.e. 34 (1988) DLT 186 is distinguishable inasmuch as it dealt with a case where a partition decree was obtained but it was specifically found that the same had not been given effect to and the family had continued to be joint.
28. Even otherwise, the plea of collusion in partition cannot be considered as legally sustainable by a party who claims right over the property by virtue of an unregistered agreement to sell, that too for a half undivided share in the property. An agreement to sell confers no title on a person as is well settled by the judgment of the Hon'ble Supreme Court in Suraj Lamps and Industries Pvt. Ltd. versus State of Haryana and Ors. 183 (2011) 1 SC. A person entering into a transaction regarding immovable property with another must satisfy himself of the interest that is transferred to him. Here, there is an unequivocal recital in Ex. DW1/1 that the defendant no. 2 owned a half undivided share in the property. There is no mention of any exclusive share in the property. Coowners are entitled to enjoy every inch of the undivided property and merely because the defendant no. 1 came in possession of the suit property which happened to be in the north side, he cannot be heard to say that he had become owner of the same or that he was entitled to protection of part performance with respect to that particular portion of the property and that by collusion his alleged right was being sought to be defeated. The coowners divided the property, the north side fell to the portion of the plaintiff, and plaintiff filed the present suit to obtain possession of a portion of the property which, being on the Suit No. 606/06 27 north side, fell to his share. The issue of collusion between the predecessor in interest of the plaintiff and the defendant no. 2 thus, would be immaterial because as I have earlier stated, they were coowners and were entitled to partition the property. Counsel for defendant no.1 argued that being leasehold property the same could not be partitioned however in AIR 2000 Delhi 92 it has been held that the super structure built on a plot can be partitioned by metes and bounds according to the respective shares of the parties while keeping the plot underneath the structure as joint and no permission of the Lesser is needed for effecting the partition of the building by metes and bounds and the same would not tantamount to a violation of the covenants of the lease deed. Defendant's reliance on the judgments of the Hon'ble Apex Court in AIR 2000 SC 2966 and 2011 3 SCC 363 175 and the Hon'ble Delhi High Court in (2010) DLT and MANU/DE/1123/2011 is misplaced in the facts of the present case.
29. Thus, in view of the aforesaid discussion, in answer to Issue no. 2 i.e. whether the partition by which the property in suit fell to the share of the plaintiff is vitiated by collusion between the predecessor in interest of the plaintiff and defendant no. 2, if so, effect, it is held that the partition was not vitiated by collusion. In answer to Issue no. 3 I hold that defendant is not in possession of the property in part performance of the agreement dated 17/11/1991 executed between the defendant no. 1 and 2. Both issues accordingly decided in favour of the plaintiff and against the defendant. Issue no. 4 Whether the suit is undervalued for purpose of court fee and Suit No. 606/06 28 jurisdiction?
30. It is the contesting defendant's case that the suit is undervalued for the purpose of court fee and jurisdiction and the burden was on the defendant to prove the issue. However, the defendant has not led any evidence in this regard, therefore he has failed to discharge the onus on this respect. The issue is accordingly decided in favour of the plaintiff and against the defendant.
Issue no.5 To what relief if any is the plaintiff entitled?
31. In view of my findings on Issues 1,2 and 3, the plaintiff is entitled to the relief of recovery of possession of the suit property i.e ground floor portion on northern side of property bearing no. 16B/11, Dev Nagar, New Delhi, shown in red in the site plan annexed to the plaint. Apart from the relief of recovery of possession of the suit property, the plaintiff has also claimed mesne profits at the rate of Rs.10,000/ per month, for unauthorised use and occupation by defendant no. 1. Plaintiff testified in crossexamination that since the defendant had claimed rent from Sh. J.K. Pali at Rs. 3000/ per month for one room barsati floor in Ex. PW1/4 and on the basis of this admission by the defendant, the rate of damages at Rs. 10,000/ per month for three rooms alongwith open courtyard and servant quarter was sought. No other witness was examined to ascertain the rate of rent prevailing in the area however, in D.C. Oswal Vs. V.K. Subbiah, AIR 1992 SC 184, the Hon'ble Apex Court held that "judicial notice can be taken of the fact that rental has escalated everywhere and appropriate rent can be estimated." The suit property is situated in Karol Bagh and Suit No. 606/06 29 the rate of mesne profits assessed at Rs. 10,000/ per month can be considered to be reasonable. Therefore, Plaintiff is entitled to Rs. 90,000/ as damages (i.e. damages/mesne profits at the rate of Rs. 10,000/ per month) from 30.10.1998 till the filing of the suit. Plaintiff is also entitled to pendente lite and future damages at the said rate of Rs. 10,000/ per month till vacant possession of the suit property is handed over to the plaintiff. However, the interest claimed on the mesne profits is extremely exorbitant and therefore, simple interest at the rate of 8% is awarded on the damages/mesne profits from the date of filing of the suit till the realisation. Parties to bear their own costs.
Decree sheet be prepared upon furnishing of differential court fees. File be consigned to Record Room after necessary compliance.
Announced in the open court ANJANI MAHAJAN
On 08.08.2012. Civil Judge - 02 (North)
06.08.2012.
Suit No. 606/06 30
06.08.2012 Suit No. 606/06
Present: None.
Vide separate judgment the suit of the plaintiff is decreed. The plaintiff is entitled to the relief of recovery of possession of the suit property i.e ground floor portion on northern side of property bearing no. 16B/11, Dev Nagar, New Delhi, shown in red in the site plan annexed to the plaint. Plaintiff is also entitled to Rs. 90,000/ as damages (i.e. damages/mesne profits at the rate of Rs. 10,000/ per month) from 30.10.1998 till the filing of the suit. Plaintiff is also entitled to pendente lite and future damages at the said rate of Rs. 10,000/ per month till vacant possession of the suit property is handed over to the plaintiff. Simple interest at the rate of 8% is awarded on the damages/mesne profits from the date of filing of the suit till the realisation. Parties to bear their own costs.
Decree sheet be prepared upon furnishing of differential court fees. File be consigned to Record Room after necessary compliance.
ANJANI MAHAJAN Civil Judge 02 (North)/THC Delhi/ 06.08.2012 Suit No. 606/06 31