Delhi District Court
Subhash Park Extension vs Smt. Nirmal Kaur on 6 August, 2014
Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
IN THE COURT OF SH. GORAKH NATH PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
RCA No. 72/14
Case I.D. Number : 02402C0260832007
IN THE MATTER OF :
Smt. Kamla Devi
W/o Sh. Dr. B. P. Singh
R/o H. No. 163, Plot No. M95, Gali No. 6, 7
Subhash Park Extension, Shahdara,
Delhi110032 .............Appellant
VERSUS
Smt. Nirmal Kaur
W/o Sh. Prehlad Singh
R/o 1613, Gali No. 4, Village Uldhanpur,
Naveen Shahdara,
Delhi110032 .......... Respondent
RCA No. 72/14
Kamla Devi Vs. Nirmal Kaur page 1 of 24
Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
Date of Institution of Appeal: 14.03.2007
Received in this Court :18.03.2014
Date of Arguments :06.08.2014
Date of Judgment/Order :06.08.2014
Decision : Appeal dismissed with cost
J U D G M E N T
1. The present appeal have been filed by the appellant/plaintiff against the judgment and decree dated 14.02.2007 passed by Ld. Civil Judge, Karkardooma Courts, Delhi in suit No. 510/96 whereby the suit for permanent injunction in respect of property bearing M94/1 in Khasra No. 121/126 measuring 100 sq. yards situated at Subhash Park in the abadi of Village Uldhanpura, Illaqua Shahdara, Delhi as shown in the site plan in red colour ( hereinafter called the suit property ) and praying for restraining the defendant, agents, associates and family members etc. from raising any illegal or unauthorized construction and from interfering into the lawful use, occupation and possession of the plaintiff has been dismissed with exemplary cost of Rs. 5,000/. The parties are referred herein by their respective names i.e. plaintiff and defendant before the Ld. Trial Court.
2. The brief and relevant facts in the background of which the present suit was filed by the appellant who is the plaintiff in the original suit are reproduced from the impugned judgment as follows: The plaintiff had purchased portion of a plot bearing No. M94, situated at RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 2 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi. Subhash Park, in the area of Village Uldhanpur, Illaqua Shahdara, Delhi in Khasra No. 121/126 which is 100 square yards vide Agreement to Sell, General Power of Attorney, Receipt dated 17.12.1980 from one Sh. Pratap Singh S/o Sh. Jawahar Singh R/o 1/5712, Balbir Nagar Chowk, Shahdara, Delhi as shown with red colour in the site plan attached with the plaint; that, after the purchase of the said plot the plaintiff had raised the construction therein as shown in thered colour in the site pland and since then she is in possession of the same; that, that the defendant is claiming the title over the said property of the plaintiff illegally and with malafide intentions has started collecting the building material on the plot of the plaintiff on 12.07.1993; that , on getting the information, the plaintiff visited the suit plot on 13.07.1993 and found the building material at the plot and also saw the masons, labourers etc. for raising the illegal construction of the boundary at the plot of the plaintiff; that, the plaintiff enquired the above said facts from the defendant who died not care to the request of the plaintiff and threatened to raise construction on the said plot illegally and forcibly; that, the plaintiff also went to the concerned police station on 13.07.1993 to lodge the police report but she was told that this is a civil matter and police officials are unable to lodge report against the defendant. Hence the plaintiff has filed the present suit praying for a decree of permanent injunction thereby, restraining the defendant, his agents, associates, family members etc. from raising any type of illegal and unauthorized construction on the plot of plaintiff bearing property No. M94/1, in khasra No. 121/126 measuring 100 sq. yards situated at Subhash RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 3 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi. Park, in the abadi of village Uldhanpura Illaqua Shahdara, Delhi and also from interfering into the lawful use, occupation and possession of the plaintiff in the said plot in question as shown in the site plan along with the costs of the present suit.
3. The defendant contested the present suit by filing her written statement and took the preliminary objection that one Sh. Satender Singh had earlier filed a suit bearing No. 586/89 at the instance of the plaintiff against the defendant Smt. Nirmal Kaur, her husband ( now deceased) and Sh. B. P. Singh, the husband of the present plaintiff and the above suit was dismissed on 27.02.1990 by the court of Ld. Subjudge, Delhi and thereafter, the application for restoration of the aforesaid suit was also dismissed on 21.05.1991; that the above said suit was filed qua plot bearing No. M94/2 and now the present plaintiff has also filed a similar suit qua plot No. M94/2 forming part of Khasra No. 126 as alleged in collusion with her husband and the said Sh. Satinder Singh and otherwise also the suit is barred by res judicata; the present suit is barred by the Doctrine of Estoppal. Sh. Pratap Singh , the alleged owner of plot No. 94/2 was burnt alive by the mob in riots on 02.11.1984 and the plaintiff had forged the documents.
On merits it is stated that the plaintiff is bound to produce the original sale deed of Sh. Pratap Singh S/o Sh. Jawahar Singh since the plaintiff is claiming her title through the said person and the sale deed owned by her; that the plaintiff had derived her title through Power of Attorney, Agreement to Sell and Receipt dated 17.12.1980 as such the production of the original sale deed of the RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 4 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi. said Sh. Pratap Singh is necessary to prove that the owner of the plot had actually conveyed the title in favour of the plaintiff. It is submitted that the answering defendant has to do nothing with the plot bearing No. M94, situated at Subhash Park in the area of Village Uldhanpur, Illaqua Shahdara, Delhi measuring 100 sq. yards since the defendant is in actual and physical possession of the plot measuring 200 sq. yards out of Khasra No. 121 situated in the area of village Uldhanpur, Illaqua, Shahdara now, known as Subhash Park vide sale deed dated 08.12.1970; that, the plot No. M88 is actually and physically possessed by the defendant and she is the registered owner of the abovesaid property vide sale deed registered with the Registrar of Delhi on 09.12.1970. The No. M88 is now numbered as H. No. 162, Subhash Park, Shahdara, Delhi by the MCD. It is denied by the defendant that the plaintiff after the purchase of the above said plot had raised the construction over the said plot and is in possession and the plaintiff has been confusing by claiming the relief over htep lot no. M94 while in fact, the defendant has to do nothing with the said plot at all the same exists but the defendant being the owner of plot No. M88 has the absolute right to protect her property and maintain the same in any manner the defendant likes; that , the above said plaintiff has been living in house No. 163, Subhash Park, Shahdara, Delhi which consists in Khasra No. 126 and the plot/property of the defendant is situated in Khasra No. 121, copy of the form No.32 i.e. FARD, copy of the sale deed dt. 08.12.70 and the copy of the ration card are filed alongwith the WS. It is denied that the defendant is claiming RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 5 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi. any title and has collected building material on the plot of the plaintiff. It is specifically denied that the plaintiff visited the suit plot on 13.07.91 and found building material , massons and labourers for raising illegal construction but in fact , the defendant during the rainy seasons has got the right under the law to carry out repairs over his property necessary to maintain the same. It is also denied that defendant has taken to raise construction over the plot of the plaintiff but the plot over property built over the plot No. M 88, is actually and lawfully belongs to the answering defendant; that the plaintiff has been harassing the answering defendant without any justification and lawful cause of action, since the husband of the defendant had expired recently leaving behind the defendant and her children; that, the plaintiff be directed to produce the original record from the revenue office which may clearly show the demarcation of the plots and the name of the property owners in the area; that, the site plan filed by the plaintiff is got prepared by herself from the unauthorized person otherwise the lay out plan of the area my clarify the actual possession of the plots and its owners which the plaintiff has not filed along with the suit knowingly well that her evil designs will involve herself and her instigators, who are all bent upon to harass the defendant. It is prayed by the defendant that the suit of the plaintiff be dismissed and the proceedings under Section 209 IPC be initiated against the plaintiff.
4. Plaintiff filed her replication thereby reiterating and reaffirming the contents of her plaint.
5. From the pleadings and documents of the parties, the following issues RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 6 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi. were framed by the Ld. Transferor Court vide its order dated 16.11.1995 namely: (I) Whether the suit of the plaintiff is not maintainable in the present form as per the preliminary objection raised by the defendant ? OPD (II) Whether the suit of the plaintiff is barred with the principle by res judicata ? OPD (III) Whether the plaintiff is entitled to the decree for permanent injunction as asked for in the plaint ?OPP (IV) Relief.
6. The appellant has preferred the instant appeal on the ground that the impugned judgment and decree dated 14.02.2007 is not sustainable in law and facts and is passed without application of judicial mind. It is further contended that the impugned judgment and decree is not passed on the basis of the admitted and proved facts and the judgment suffers from illegality and infirmity. As mentioned the Ld. Trial Court failed to appreciate the correct facts of the case and relevant materials on record. It is mentioned that the ownership was not to be decided by the Ld. Trial Court and the onus was upon the defendant to prove that she is the owner in possession of the suit property. As contended the Ld. Trial Court failed to appreciate the facts and reached to wrong conclusion; the Ld. Trial Judge has not applied his mind and disposed off the suits without following due process of law and considering the relevant aspects. This appeal is filed praying to set aside the impugned judgment and decree.
7. The respondent/defendant who contested the appeal did not wish to file RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 7 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi. reply to the appeal.
8. Along with the appeal, an application U/O 41 Rule 27 CPC was filed by the appellant. The said application was allowed by the order dated 24.12.2010 and the PW6 was recalled for crossexamination by the defendant. Direction was also issued to the concerned SDM to demarcate the suit property. After demarcation the report was filed to the affect that in the absence of fixed revenue point for reference, demarcation could not be carried out.
9. I have heard the counsel for parties and gone through the written arguments filed on their behalf. I also considered relevant provisions of law along with the Trial Court Records.
10. Having drawn my attention to the pleadings of the parties, testimony of the witnesses and materials on record, it is submitted by Ld. Counsel for the appellant that the impugned judgment and decree is not sustainable in law being passed without application of judicial mind. The Ld. Counsel further argued that the testimony of the witnesses along with relevant documents not considered as per law and the Ld. Judge reached as wrong conclusion regarding the ownership of the respondent. It is further argued that the documents relied by the respondent in support of ownership has no value in the eyes of law; the impugned judgment and decree is not sustainable and prayed to set aside the same and allow the appeal.
11. The Ld. Counsel for the respondent on the other hand supported the impugned judgment and decree and argued that the appeal filed by the RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 8 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi. appellant is not maintainable and is filed only to delay the legal proceedings. It is further argued that by way of this simplicitor suit of injunction, the plaintiff/ appellant is seeking relief of declaration and this suit is not maintainable. The Ld. Counsel for the respondent further prayed to dismiss the appeal with heavy cost.
12. To appreciate the rival contentions of the parties, it is necessary to refer relevant provisions of law regarding injunction i.e. Section 38 of Specific Relief Act, 1963 which is as below: Section 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.
13. 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. RCA No. 72/14
Kamla Devi Vs. Nirmal Kaur page 9 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi. It must not be arbitrary, vague and fanciful. Section 41 of the Specific Relief Act enumerates the cases where an injunction will be denied.
14. As held in JT 1994 (6) SC 588 , interest of right not shown to be in existence cannot be protected by injunction. Issuance of order of an injunction is absolutely 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 for mere asking such relief should be given. Injunction is a personal right under Section 41 (j) of the Specific Relief Act, 1963 and the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence cannot be protected by injunction.
15. 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 and 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, "A civil case is decided on balance of probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 10 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit "
preponderance of probability" would serve the purpose for obtaining a decree".
16. The issues framed in the suit have been mentioned above. The issue No. I and II has been decided against the defendant and is the finding of Ld. Trial Judge is not challenged by way of this appeal. The onus to prove the issue No. III as to whether the plaintiff is entitled for the relief of permanent injunction was on the plaintiff. The plaintiff claimed to be the owner of the suit property but as apparent from the records, no documents have been placed on record or proved by the plaintiff in this respect. Further, the identity of the suit property is also not ascertained or established by the plaintiff either by way of oral evidence or documentary evidence. From the revenue records and the testimony of the witnesses, demarcation report, it is also not proved that any Pratap Singh S/o Jawahar Singh was the owner of the suit property from whom the plaintiff RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 11 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi. claimed to have purchased the suit property. The testimony of the plaintiff was totally shattered which appears to be discussed in detail by the Ld. Trial Judge in the impugned judgment. The plaintiff not proved the documents i.e. agreement to sell, GPA or receipt in support of her ownership. Even otherwise on the basis of these documents, the plaintiff cannot be considered as owner of the suit property. The testimony of PW6 i.e. Patwari and CW1 Kanoongo also deny the claim of the plaintiff. The finding of Ld. Trial Judge appears to be well reasoned as per records and does not warrant for any interference.
17. The Ld. Counsel for the respondent vehemently argued that by way of this simplicitor suit of injunction, the plaintiff/appellant is seeking the relief of declaration regarding the suit property and therefore, this suit is not maintainable. This contention of Ld. Counsel for respondent appears to have substance. I have gone through the judgment reported as AIR 2008 SC 2033 wherein the scope of a suit for permanent injunction was examined by Hon'ble Supreme Court in detail and the position in regards to the suits for prohibitory injunction relating to immovable property is summarized as under:
(i) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 12 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor.
(ii) As a suit for injunction simplicitor is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of the title to the property, as in thecase of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(iii) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title ( either specific, or implied). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine orrender a finding on a wuestion of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 13 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(iv) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
It was further held while answering the scope of the suit for permanent injunction relating to immovable property, the general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 14 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi. for declaration and/or possession with injunction as a consequential relief are well settled. It is mentioned: 11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simplicitor will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in lawful possession is not entitled to an injunction against the rightful owner. 11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simplicitor, without claiming the relief of possession.
11.3. Where the plaintiff is in possession but his entitled to the property in dispute, or under a cloud, or where a defendant asserts a title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 15 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi. possession and injunction.
The ratio of the judgment is squarely applicable in the facts and circumstances of the case and the simplicitor suit of the plaintiff for permanent injunction is found to be not maintainable.
18. It is argued by Ld. Counsel for the appellant that the revenue records relied by the respondent is neither reliable nor admissible in evidence regarding ownership. This contention is not reliable and have no substance. 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. As held in AIR 1997 Calcutta 120, the burden lies upon the party who challenges the entry to establish by unimpeachable evidence that entry was erroneous. It is necessary to note that the appellant has not taken any steps in respect. The appellant has failed to produce any oral or documentary evidence to prove the contrary. Undisputedly, the burden lies on the appellant/plaintiff to establish such facts for the grant of discretionary relief of permanent injunction and the appellant/plaintiff failed to discharge the onus.
19. 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 RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 16 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi. the valuation of the result drawn by 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. It is noted that plaintiff categorically failed to prove the case. The contention regarding the defendant failed in proving ownership appears to be without any basis and not sustainable.
RCA No. 72/14
Kamla Devi Vs. Nirmal Kaur page 17 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
20. The Ld. Counsel for the respondent has argued that the plaintiff is neither owner nor in possession of any property. It is further argued without prejudice that the plaintiff cannot be considered as owner on the basis of the documents as mentioned in the plaint though no such documents is produced or proved as per law. This contention of the respondent appears to be in consonance with provisions of law and correct. 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 partpromised.
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 RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 18 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
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 RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 19 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
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 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 RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 20 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
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 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.
21. 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 Hon'ble Supreme Court in re Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, reported as 183 (2011) DLT 1 (SC) 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 RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 21 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi. 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.
In this case, the plaintiff failed to prove any documents in support of ownership. The provisions of Section 53 A of the Transfer of Property Act or Section 102 of the Contract Act is also not applicable. The plaintiff/appellant failed to prove any right, title or interest in the suit property.
22. Section 101 of the Evidence Act, 1872 defines " burden of proof" and 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 RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 22 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi. 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. In view of this legal position of the Evidence Act, it is clear that it is for the appellant to prove that she is the owner in possession of the suit property. It is reiterated that plaintiff/appellant failed to discharge the onus and prove the issue. The Ld. Trial Judge therefore rightly dismissed this suit of the plaintiff.
23. From the materials on record and the testimony of the witnesses, it is proved that plaintiff is neither in possession of the suit property nor the owner thereof. It is reiterated and noted that the plaintiff/appellant failed to prove the documents relied in this respect and discharge the onus. The testimony of the PWs, DWs and the pleadings of the parties established that the suit property is in possession of the defendant /respondent. The Ld. Trial Court has examined the issues framed in the suit in proper perspective. Mere oral averments by the appellant is not sufficient to grant the discretionary relief of permanent injunction without proving any right, title or interest in the suit property. The appellant/plaintiff is therefore not entitled for the relief as prayed in the suit. This court does not find any illegality or infirmity in the impugned judgment and RCA No. 72/14 Kamla Devi Vs. Nirmal Kaur page 23 of 24 Sh. Gorakh Nath Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi. decree dated 14.02.2007 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.
24. Decree sheet be drawn accordingly.
25. Trial Court record be sent to the concerned court along with copy of this judgment.
26. Appeal file be consigned to record room.
Announced in open Court on this 06th day of August, 2014 Gorakh Nath Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
RCA No. 72/14
Kamla Devi Vs. Nirmal Kaur page 24 of 24