Delhi District Court
All R/O C111A vs Hazi Ghulam Rasool on 27 February, 2015
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
RCA No. 90/14
Case I.D. Number : 02402C0155742014
IN THE MATTER OF :
(1) Smt. Promila Rani
W/o Sh. Puran Prakash
(2) Ravi Kant (Since deceased){Suit abated}
S/o Sh. Puran Prakash.
(3) Vishal Kumar ( Since deceased) { Suit abated}
S/o Sh. Puran Prakash.
(4) Dalip Kumar
S/o Sh. Puran Prakash
(5) Chander Bala
D/o Sh. Puran Prakash
All R/o C111A, Gali No. 5,
Bhajan Pura, Delhi110053 .......Appellants
VERSUS
Hazi Ghulam Rasool
S/o Faiz Mohammed
RCA No. 90/14 page 1 of 30
Promila Rani & Ors. Vs. Hazi Ghulam Rasool
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
R/o H. No. 1356, Gali No. 45,
Jafrabad, Delhi110053 ........ Respondent
Date of Institution of Appeal : 23.05.2014
Arguments heard on : 21.02.2015
Date of Judgment/Order : 27.02.2015
Decision : Appeal is dismissed with costs
J U D G M E N T
1. The present appeal impugns the judgment and decree dated 24.04.2014 passed by Ld. Sr. Civil Judgecum rent controller (NE), Karkardooma Courts, Delhi in suit No. 112/08 whereby the suit for declaration, possession and permanent injunction filed by the plaintiff/respondent against the defendants/appellants in respect of property bearing No. C111A, Gali No. 5, Bhajanpura, Delhi53 ( hereinafter referred as the suit property) as shown in red color in the site plan Ex. PW1/1 has been decreed with cost.
( Parties are referred as per their status before the Ld. Trial Court).
2. The brief and relevant facts in the background of which the present suit was filed by the plaintiff/respondent is reproduced from the impugned judgment as follows: (I) Puran Prakash was the father of the husband of defendant No. 1 and defendants No. 2 to 5. He debarred his successors from his properties by means of a Public Notice Ex. PW1/7 published in the newspaper and by RCA No. 90/14 page 2 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. getting their names deleted from his ration card Ex. PW1/8. (II) Puran Prakash thereafter sold the property bearing No. C111A, Gali No. 5, Bhajan Pura, Delhi110053 on 22.06.1999 as shown in red in the Site Plan Ex. PW1/1 to the plaintiff via General Power of Attorney Ex. PW1/2, registered Will Ex. PW1/3, affidavit Ex. PW1/4, Agreement to Sell Ex. PW1/5 ( herein after " suit property"). He also assured the plaintiff that he will hand over the vacant possession of the suit property in the due course. (III) Puran Prakash thence moved an application Ex. PW1/9 before the SDM concerned that he had sold the suit property to the plaintiff because his succession does not treat him properly, Likewise he also filed a similar application Ex. PW1/10 before the SHO concerned apprehending that his successors might harass the plaintiff on coming to know about the sale in question.
However, thereafter he suddenly left his home and disappeared even before the possession could have been given to the plaintiff. Taking benefit of his disappearance, the defendants thereafter refused to vacate the suit property and hence the present suit came into being on 30.09.2000 for seeking the following reliefs:
a) A decree of possession of the suit property as shown in red in the site plan Ex. PW1/1.
b) A decree of Declaration thereby declaring the plaintiff as the owner of the suit property;
RCA No. 90/14 page 3 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
c) A decree of permanent injunction for restraining the defendants from transferring or alienating the suit property; and
d) The costs of the suit.
B) Ex Parte Decree (IV) The summons of the suit were issued to the defendants whereafter the Ld. Predecessor in his order dated 08.11.2000 recorded that the defendants were served on 06.11.2000, who were then proceeded ex parte due to their non appearance.
The plaintiff thereafter examined himself as PW1 in ex parte evidence whereupon the suit was partly decreed on 30.11.2000. Via this ex parte decree, the relief of possession was allowed in favour of plaintiff while the remaining two reliefs seeking declaration and injunction were declined. (V) The defendants thereafter filed separate application U/o 9 Rule 13 CPC and section 5 Limitation Act respectively on 31.05.2001 for setting aside the said ex parte decree. The application of the defendants U/s 5 Limitation Act was dismissed by the Ld. predecessor on 17.09.2001 whereby their remaining application U/o 9 Rule 13 CPC was also consequently dismissed. This order was challenged by the defendants before the High Court, which allowed their appeal via order dated 17.10.2001 and remained the case to decide the said applications on the basis of evidence.
RCA No. 90/14 page 4 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. In pursuance thereof, the parties led their respective evidence. (VI) During the trial of these applications, the defendants NO. 2 and 3 expired.
The suit against defendant No. 2 was abated on 19.03.2005. However, thereafter the surviving defendants sought to implead the wife of defendant No. 2 as a party by making an oral request in that regard, which was declined by this court on 16.04.2005.
The information of the death of defendant No. 3 was given to the court on 01.06.2007 whereafter the counsel for the plaintiff sought time to implead his LRs. However, the subsequent record shows that the plaintiff never applied for their impleadment whereby the proceedings stood automatically abated qua defendant No. 3.
After the aforesaid intervening trial, the said applications were allowed by the Ld. Predecessor on 05.02.2008 and the surviving defendants No. 1, 4 and 5 were allowed to defend this suit( hereinafter "defendants"). C) Written Statement (VII). The contesting defendants thus filed their WS in pursuance thereof.
In their preliminary objections, they claimed that the suit is bad for non joinder & mis joinder of Puran Prakash and that it has been incorrectly valued for the purposes of court fees & jurisdiction.
On merits, they claimed that the suit property was sold on 10.01.1979 RCA No. 90/14 page 5 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. by Puran Prakash to this wife( defendant No. 1) for a sum of Rs. 4,000/ via GPA, agreement to sell and registered receipt Ex. DW 3/A. Thereafter due to the persistent request of her husband to sell the suit property, she sold it to Farooq Khan on 28.09.1998 vide GPA Ex. DW 2/A, will, agreement to sell, receipt, indemnity bond and affidavit. However Farooqq Khan on seeing the plight of the family allowed the defendants to stay there as tenants on a monthly rent of Rs. 1,000/ via rent deed dated 26.11.1998. In the due course, the defendants No. 2 to 4 purchased back the suit property from Farooq Khan on 05.07.1999 via registered sale deed Ex. DW 3/ B. Thence Puran Prakash deserted his family around 22.06.1999, who since then has not been heard of.
Thus the contesting defendants are denying the claim of ownership of the plaintiff over the suit property.
D) Replication (VIII). In his replication, the plaintiff has denied the claims of the defendants by simply reiterating the contents of his plaint.
ISSUES (IX) After completion of the pleadings, the following issues were framed on 06.04.2009: (1) Whether the plaintiff is entitled for the relief of declaration as prayed for?( OPP).
RCA No. 90/14 page 6 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. (2) Whether Sh. Puran Prakash had no subsisting title in his favour when he sold the suit property to the plaintiff?( OPD) (3) Whether the suit is bad for non joinder and misjoinder of the parties?( OPD) (4) Whether the suit has not been properly valued for the purposes of court fees and jurisdiction?( OPD).
(5) Whether the plaintiff is entitled for the relief of possession as prayed for?( OPP).
(6) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ?( OPP).
(7) Relief.
3. The Ld. Counsel for the appellants have argued that the document Ex. PW1/X1 was not considered by Ld. Trial Court i.e. GPA executed by Puran Prakash in favour of Pramila Rani and the cancellation of the GPA dated 10.01.1979 in the name of Pramila Rani has no consequence on her title. It is further contended that the execution of the GPA by Puran Prakash in favour of Pramila Rani is not denied and it is admitted by the defendant that the GPA was cancelled on 07.04.88. The GPA Ex. PW1/X1 executed for consideration cannot be canceled/revoked. It is further mentioned that Puran Prakash was not a necessary party in the matter as held by Ld. Trial Court and the plaintiff is not entitled for the relief of possession and permanent RCA No. 90/14 page 7 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. injunction as prayed for. Ld. Counsel for the appellants further argued that the Ld. Trial Judge committed error and not applied the judicial mind and prayed to allow the appeal and dismiss the impugned judgment and decree.
4. The Ld. Counsel for the respondent supported the impugned judgment and argued that there is no merit in the appeal and prayed to dismiss the same with cost. While filing reply to the appeal, the respondent has denied the averments of the appellants in the appeal.
5. I have heard the Ld. Counsel for the appellants and respondent and gone through the relevant material on records including the Trial Court Records. I have also considered the written submissions filed on behalf of appellants. The Ld. Counsel for the appellants has relied upon the judgments reported as :
(1) Ramesh Chand Vs. Suresh Chand Anr. reported as 188 (2012) DLT 538 (2) State of Rajasthan Vs. Basant Nehata reported as 2005 (12) SCC 77 (3) Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana & Anr.
reported as AIR 2012 SC 206.
(4) Chief Conservator of Forests, Govt. of A. P. , Vs. Collector reported as AIR 2003 SC 1805 (5) Sarvinder Singh Vs. Dalip Singh and Ors. reported as 1996 (5) RCA No. 90/14 page 8 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. SCC 539
6. To appreciate the rival contentions of the parties, it is necessary to refer relevant provisions of law regarding declaration and permanent injunction i.e. Sections 34 & 38 of Specific Relief Act, 1963 which are reproduced as below:
34. Discretion of court as to declaration of status or right Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief that a mere declaration of title, omits to do so.
38. Perpetual injunction when granted. (1) Subject to the other provisions contained in or referred to by this chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained RCA No. 90/14 page 9 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff's right to , or enjoyment of, property, the court may grant a perpetual injunction in the following case, namely:
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
7. As held in M. P. Mathur Vs. DTC, AIR 2007 SC 414, the discretion under the Section which the court has to exercise is a judicial discretion and has to be exercised on well settled principles. The court has to consider as the nature of the obligation in respect of which performance is sought, circumstances under which the decision came to be made, the conduct of the parties and the effect of the court granting the decrees. The court has to look at the contract and ascertain as to whether there exists an element of mutuality in the contract. Further, as held in American Express Time Vs. RCA No. 90/14 page 10 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. Kolkata Steel Company, (1993) 2 SCC 199 , the grant or refusal of relief of declaration and injunction under provisions of Section 34 is discretionary and the plaintiff cannot claim the relief as of right. It has to be granted according to sound principles of law and ex debito justitial.
8. Section 38 of Specific Relief Act enables the court to grant perpetual injunction to prevent the breach of an obligation existing in favour of applicant, whether expressed or implied. Meaningly, the question is to be examined as to whether there exists an obligation in favour of the applicant and if the answer is in affirmative and the case falls within the ambit of Section 41 of the Specific Relief Act an injunction cannot be granted. It is also necessary to mention that rights and obligations are corollary each other and the right places a correspondence duty also for its existence. The injunction is a discretionary relief and its grant of refusal depends upon the circumstances and facts of a particular case. The discretion has to be reasonable guided by judicial principles and law. It must not be arbitrary, vague and fanciful. Section 41 of the Specific Relief Act enumerates the cases where an injunction will be denied. Sub Section (h) of section 41 mention that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust the injunction cannot be granted. Sub Section (i) mention regarding refusal of injunction when the conduct of the applicant or his agents has been such as RCA No. 90/14 page 11 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. to disentitle him to the assistance of the court.
9. The relief of injunction is based on equity and person claiming the same must come to the court with clean hands. As held in (1994) 5 SCC 47: "Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that mere asking such relief should be given. Injunction is a personal right under section 41(j) of the Specific Relief Act 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction".
10. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement as the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for injunction, this suit is to be decided on the basis of preponderance of probabilities. As held in Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418 & Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, "A civil case is decided on balance of probabilities.
11. Section 101 of the Evidence Act, 1872 defines " burden of proof" and RCA No. 90/14 page 12 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
12. There is no dispute between the parties regarding the ownership of Puran Prakash as the plaintiff and defendant No. 1 both are claiming their right, title and interest in the suit property through him only. The defendant No. 1 claimed the ownership on the basis of documents i.e. GPA, Agreement to Sell and Receipt Ex. DW3/A dated 10.01.1979 of Puran Prakash. The said GPA dated 10.01.79 in favour of defendant No. 1 has been canceled/revoked in the year 1998. The cancellation of the GPA Ex. PW1/X1 is also proved RCA No. 90/14 page 13 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. by PW3. PW4 proved the registration of sale documents Ex. PW1/1 to PW1/3 by Puran Prakash in favour of the plaintiff. The defendant No. 1 in support of her ownership relied only one documents ie. Registered receipt Ex. PW3/A executed by Puran Prakash in her favour dated 10.01.79. The question remained to be decided as to whether the defendant No. 1 can be considered as owner merely on the basis of Ex. DW3/A i.e. receipt dated 10.01.79.
13. The evidence of the parties led before Ld. Trial Court was somehow on the similar lines as contended in the plaint. Plaintiff purchased the suit property vide documents dated 22.06.99 as claimed and Puran Prakash is missing since 1999. None of the documents except the receipt were produced by the appellants in support of contentions. The Ld. Trial Court rightly reached to the conclusion that plaintiff proved his sale documents vide Ex. PW1/2 to PW1/6 regarding purchase of the property from Puran Prakash. It is also proved from the record that Puran Prakash did not have cordial relations with the appellants and therefore there is every probability that after cancellation of GPA relied by defendant No. 1, he has sold the suit property to the plaintiff. Merely on the basis of the receipt, the defendant No. 1 cannot be considered to be the owner, more so ever neither the GPA nor agreement to sell is proved on record. The defendant No. 1 further failed to show that any GPA was executed by Puran Prakash in her favour for RCA No. 90/14 page 14 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. any consideration. The findings of the Ld. Trial Judge appears to be sustainable.
14. It is appropriate and relevant to note the relevant legal provisions and authorities for proper examination and adjudication of the issues.
Section 5 of the Transfer of Property Act, 1882 ( ' TP Act' for short) defines ' transfer of property' as under: " 5. Transfer of Property defined: In the following sections " transfer of property " means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself 9 for to himself) and one or more other living persons; and " to transfer property" is to perform such act." XXX XXX Further Section 54 of the TP Act defines ' sales' thus :
" Sale" is a transfer of ownership in exchange for a price paid or promised or partpaid and part promised.
Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
RCA No. 90/14 page 15 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
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.
Contract for sale. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property."
Section 53 A of the TP Act defines ' part performance ' thus :
" 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 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 and had done some act in furtherance of RCA No. 90/14 page 16 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
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 b 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."
Section 17 of the Indian Registration Act, 1908: " 17. Documents of which registration is compulsory. (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian RCA No. 90/14 page 17 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
Registration Act, 1866 ( 20 of 1866), or the Indian Registration Act, 1871 ( 8 of 1871), or the Indian Registration Act, 1877 ( 3 of 1877), or this Act came or comes into force, namely
(a) Instrument of gift of immovable property;
(b) other nontestamentary instruments which purport or operate to create, declare, assign, limit or extinguish , whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
15. It is settled law that title of immovable property above the value of Rs. 100/ can only be transferred by way of a registered instrument as prescribed Under Section 17 of the Indian Registration Act, 1908 and by way of documents of sale as recognized under Section 54 of the Transfer of the Property Act. As held in AIR 1969, SC 1316, the documents of which registration is necessary under the transfer of Property Act ( such as under
Section 54 of the TP Act) but not under the Registration Act fall within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction of acting any immovable property comprise therein and do not affect any such immovable property.
16. As held in 128 (2006) DLT 407 (DB) titled M. L. Aggarwal Vs. RCA No. 90/14 page 18 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. Oriental Bank of Commerce & Ors, : " The petitioner has only produced an agreement to sell, will and a power of attorney and a receipt for payment of money but these in our opinion do not constitute a sale. Under Section 17 (1) (b) of the Registration Act, Sale of an immovable property can only be by a registered deed. In our opinion, the petitioner has no right, title or interest in the suit property as he has not purchased it by any registered sale deed. An immovable property cannot be purchased by a mere power of attorney or agreement to sell."
The ratio was further reiterated by Hon'ble Delhi High Court in AIR 2003, Delhi 120 titled G. Ram Vs. DDA wherein it is mentioned that transfer of immovable property can only be affected by executing a registered documents. Merely making an agreement of sale or execution of power of attorney could not transfer right, title or interest of any immovable property.
17. This court is guided in view of the judgment of Hon'ble Supreme Court in Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, reported as 183 (2011) DLT 1 (SC) in this respect as held, the documents of title relied upon by the defendant such as Ex. PW 1/ 1 to Ex. PW1/4 i.e. GPA , Agreement to Sell, Will and receipt would not confer ownership rights in respect of immovable property in his favour. Hon'ble Supreme court vide order dt. 15.05.09 reported as Suraj Lamps & Industries RCA No. 90/14 page 19 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. V/s State of Haryana, 2009(7) SCC (366) referred illaffects of GPA sells or sell agreement/ GPA/ will transfer holding that there cannot be sell by execution of power of attorney nor there can be transfer by execution on agreement to sell and power of attorney and will. It is relevant and necessary to reproduce relevant paras of judgment of Hon'ble Supreme Court in Suraj Lamps ( supra) reported as Manu/SC/1222/2011 which read as under: Scope of an Agreement of Sell:
11. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas V. S. A. Kamtam and Anr. (1977) 3 SCC 247, observed: "A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prasad Vs. Ram Mohit Hazra ( 1967) 1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognized in Section 3 of the Specific Relief Act, contract for sale is recognized in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an RCA No. 90/14 page 20 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein."
In India the word ' transfer' is defined with reference to the word ' convey'. The word ' conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership........ ....... that only on execution of conveyance ownership passes from one party to another ..........."
In Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra (2004) (8) SCC 614, this court held: " Protection provided under Section 53 of the Act to the proposal transferee is a shield only against the transferor. It disentitles the tranferor 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 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"
It is thus clear that a transfer of immoveable property by way of sale RCA No. 90/14 page 21 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. can only be by a deed of conveyance ( sale deed). In the absence of a deed of conveyance ( duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
12. Any contract of sale( agreement to sell) which is not a registered deed of conveyance ( deed of sale) would fall short of the requirements of Section 54 and 55 of Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property ( except to the limited right granted under Section 53A of Transfer of Property Act). According to Transfer of Property Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of Transfer of Property Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.
Scope of Power of Attorney
13.A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him( see section 1A and section 2 of the RCA No. 90/14 page 22 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In state of Rajasthan v. Basant Nehata MANU/SC/0547/2005 :
MANU/SC/0547/2005 : 2005 (12) SCC 77 this court held :
A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the Principal in favor of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powersof Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to RCA No. 90/14 page 23 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
enable the done to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The done in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.
An Attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of grantor. Scope of Will
14. A will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivo. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. It is said that so long as the testator is alive, a will is not be worth the paper on which it is written, as the testator RCA No. 90/14 page 24 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. ( see Sections 69 and 70 of Indian Succession Act, 1925). Registration of a will does not make it any more effective.
We therefore reiterate that immovable property can be legally and lawfully transferred/ conveyed only by a registered deed of conveyance. Transaction of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transaction as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53A of the Transfer of Property 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 freehold property but also to transfer of leasehold property. A lease can 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 transaction known as GPA sales.
18. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The RCA No. 90/14 page 25 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. Hon'ble Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance ( para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872( para 13) and devolution of interest pursuant to a will( para 14).The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney.
Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will.
19. This Court is conscious of the judgment of the Hon'ble High Court in the case of Sh. Ramesh Chand Vs. Suresh Chand reported in 188 (2012) DLT 538 in which the judgment in the case of Suraj Lamps (supra) was interpreted. In the case of Ramesh Chand (supra) the Hon'ble High Court RCA No. 90/14 page 26 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. was pleased to hold that right to possess immovable property arises not only from a complete ownership right but also by having a better title.
20. In the present case, Puran Prakash was the owner of the suit property and there is nothing on record to infer that he has sold the suit property to the appellants or consequently ever handed over the possession. The appellants further failed to prove that the possession was handed over as part performance of the agreement to sell and defendants were permitted to use the suit property as permissive user. Thus the only inference which can be drawn in view of the pleadings and evidence led is that the appellants failed to prove that he is the owner of the suit property.
In view of the aforesaid discussions and referred law, this Court is of the considered view that the appellants cannot be considered having right, title or interest in the suit property and the documents Ex. DW3/A relied by the appellants/defendants is neither helpful nor sufficient to prove the claim of the appellants /defendants in the suit. The finding of Ld. Trial Court appears to be sustainable and entitled to be upheld.
21. The appellants claimed to be the owner of the suit property but failed to discharge the onus and prove the issue. Merely oral and bald averments is not sufficient to prove the ownership by the appellants. The Ld. Trial Court rightly reached to the conclusion and decided the issues on the basis of materials on record and evidence of the parties and this court does not find RCA No. 90/14 page 27 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. any ground to interfere with the findings of Ld. Trial Judge. The findings of the Ld. Trial Judge regarding the value of the documents relied by the plaintiff is well explained by the Ld. Trial Judge in the impugned judgment and the same does not require any interference. The findings of Ld. Trial Judge does not appear to suffer from any illegality or infirmity. There is nothing on record to come to the conclusion that the appellants are the owner of the suit property.
22. The pleadings of the parties and evidence on record reveals that the appellants/defendants categorically failed to prove the ownership of the suit property in view of the contention in the pleadings. The ratio of judgment reported as 1982 (1) RCR 637 is squarely applicable in the facts of this case. Further, as held in Subhra Mukharjee Vs. Bharat Coking Coal Ltd., AIR 2000 SC 1203, the party which makes the allegation must prove it. The appellants have failed to produce any oral or documentary evidence to prove the contentions. Undisputedly, the burden lies on the appellants to establish such facts.
23. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by RCA No. 90/14 page 28 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title.
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this Court the plaintiff has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiff had stood discharged. The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
24. From the testimony of the witnesses, pleadings of the parties and the documents on record, it is established that the Ld. Trial Court has examined RCA No. 90/14 page 29 of 30 Promila Rani & Ors. Vs. Hazi Ghulam Rasool Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. the issues framed in the suit in proper perspective. Mere oral averments by the appellants is not sufficient to grant relief in their favour. This court does not find any illegality or infirmity in the impugned judgment and decree dated 24.04.2014 which is well reasoned/correct appreciation of facts and in accordance with the provisions of law. The impugned judgment is therefore entitled to be upheld. There is no merit or substance in the appeal which is liable to be dismissed. The appeal is therefore dismissed with cost.
25. Decree sheet be drawn accordingly.
26. Trial Court records be sent along with copy of this judgment after placing the judgment in file.
27. Appeal file be consigned to record room.
Announced in open Court on this 27th day of February, 2015 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
RCA No. 90/14 page 30 of 30
Promila Rani & Ors. Vs. Hazi Ghulam Rasool