Delhi District Court
Shahnawaz Alam vs Mst Shabnam Parveen on 6 October, 2022
IN THE COURT OF MS. RAVINDER BEDI,
ADDITIONAL DISTRICT JUDGE-02 (SHAHDARA),
KARKARDOOMA COURTS: DELHI.
RCA DJ No.143/2018
CNR No.DLSH01-008658-2018
SHAHNAWAZ ALAM
SON OF SH. FASIHULLAH KHAN
R/O H. NO. F 573, GALI NO. 18B, KHAJURI KHAS,
DELHI-110094
..........Appellant
Versus
MST SHABNAM PARVEEN
W/O SH. MAZAHIR HASAN
R/O C3, GALI NO. 4, CHANDU NAGAR,
KARAWAL NAGAR ROAD,
BHAJANPURA, DELHI.
ALSO AT
B-207, GROUND FLOOR, KHASRA NO. 162/27,
GALI NO. 3, MOONGA VIHAR, DELHI-110094
.......Respondent
Date of Institution of Appeal : 24.12.2018
Date of pronouncement : 06.10.2022
Appearance:
Mr. Paritosh Singh Rajput, ld. Counsel for Appellant.
Mr. Sarfraz Hussain, ld. Counsel for Respondent.
RAVINDER Digitally signed by
RAVINDER BEDI
BEDI Date: 2022.10.11 15:51:08
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Shahnawaz Alam v. Shabnam Parveen Page no. 1 of 27
ORDER
1. By way of the present appeal, Appellant (who is Defendant before ld. trial court) has challenged the Judgment/ Decree dated 16.11.2018 passed by Sh. Sudhir Kumar Sirohi, ld. ACJ/CCJ/ARC in CS No. 110/2012 (new 7540/2016) titled as 'Shabhnam Parveen v. Shahnawaz Alam', whereby the suit filed by Respondent (Plaintiff before ld. trial court) has been decreed in her favour.
2. To put succinctly, the facts relevant for disposal of the appeal are as follows:-
● that Plaintiff filed a suit for possession, injunction, mesne profits and damages against Defendant (Appellant herein) in respect of one room at ground floor of Property bearing no. F 573, Gali no. 18 B, Khajuri Khas, Delhi 110094 (hereinafter as 'suit property'), wherein she stated that Defendant was her real younger brother and though he was residing at House no. 3236, Turkman Gate, Delhi, but was occupying the room at suit property. Plaintiff stated that she was the owner of the whole property which comprised three shops, two rooms, kitchen, latrine bathroom and a room constructed on first floor along with roof rights.
● that suit property was constructed after Plaintiff purchased a plot of land measuring 91 sq yards on 02.05.1996 from RAVINDER Digitally signed by RAVINDER BEDI RCA DJ No.143/2018 Shahnawaz Alam v. Shabnam Parveen BEDI Date: 2022.10.11 Page no.15:51:16 2 of 27 +0530 one Mr. Ramzani Khan for a valuable consideration vide sale documents. There were two shops, three rooms and a kitchen latrine bathroom with boundary walls on ground floor but later on, one room of ground floor was also being used as a shop and thus, there were three shops and two rooms besides common kitchen, latrine and bathroom at ground floor with one room on first floor. Plaintiff also installed electricity meter besides other basic amenities and let out portions of property to various tenants. The tenants were inducted and they would vacate their respective portions and this continued to be so. At present, there were two tenants on first floor as well as in three shops at ground floor of suit property.
● that Defendant was occupying one room at ground floor with right to utilize common space as well as kitchen, toilet and bathroom. Since there were many tenants in the property, it was not possible for Plaintiff to manage it and to collect rent from all of them after her marriage, she on 27.04.2004 executed a registered GPA in favour of Defendant thus entitling him to manage the property and to receive/recover rents from tenants as also to take all related actions against them. Defendant was thus appointed as attorney since Plaintiff being lady and was about to be married; dealing with tenants had become a little difficult and hence the said GPA dated 27.04.2004 was executed in favour of Defendant on the premise that Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2022.10.11 15:51:21 +0530 RCA DJ No.143/2018 Shahnawaz Alam v. Shabnam Parveen Page no. 3 of 27 Defendant would continue to collect rental income for Plaintiff.
● In the month of January, 2008 Defendant approached her and requested to allow him to occupy the said one room at ground floor. He stated that keeping possession of said room would strengthen the position and ownership of Plaintiff and no tenant would dare to pose any such threats. Plaintiff allowed him to live and occupy the said room with right to use common space and latrine/bathroom as her licensee. Plaintiff did not charge or ask for any user /occupation charges from Defendant. Defendant continued to reside at his own house at Turkman Gate Delhi.
● that in the month of May, 2008 another room at the ground floor was vacated by some tenant and Plaintiff allowed her another brother Mr. Mehtab Alam to live and occupy the same at ground floor. Plaintiff states that following the introduction of Mehtab Alam as the occupant in respect of adjacent room at ground floor, Defendant seemed to have developed grudges and stopped depositing rental income with Plaintiff, despite various requests and demands in this regard. Hence, being perturbed with his actions of committing criminal breach of trust, Plaintiff decided to cancel the GPA in his favour.
● that on 19.02.2009, Plaintiff issued a legal notice upon RAVINDER Digitally signed by RAVINDER BEDI RCA DJ No.143/2018 BEDI Date: 2022.10.11 15:51:26 +0530 Shahnawaz Alam v. Shabnam Parveen Page no. 4 of 27 Defendant as to why GPA dated 27.04.2004 be not canceled. The said legal notice was not responded to by Defendant. On 08.05.2009, Plaintiff being left with no option had revoked the GPA dated 27.04.2004 vide a Registered Deed of revocation.
● that after such revocation, Plaintiff requested Defendant to vacate the aforesaid room, but Defendant avoided the same on one pretext or the other. On 02.02.2012, Plaintiff asked Defendant to vacate said room but to her utter surprise, Defendant not only refused to vacate the same but also threatened to sell the house on the basis of the said GPA dated 27.04.2004. Plaintiff issued a legal notice dated 08.02.2012 thereby demanding the Defendant to vacate the room and to handover the physical possession of the same along with common areas failing which Defendant would be liable for mesne profits, damages and occupation charges at the rate of Rs. 5,000/- per month for use and occupation of the same with effect from 01.03.2012. However, Defendant did not respond the said notice nor vacated the premises. Plaintiff issued a fresh legal notice dated 14.03.2012 upon Defendant calling him to vacate licensed premises within a period of fifteen days. The said legal notice sent on 16.03.2012 was duly served upon Defendant but the Defendant did not vacate the suit property.
RAVINDER Digitally signed by RAVINDER
BEDI
BEDI Date: 2022.10.11 15:51:30 +0530
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3. Defendant appeared in response to summons and filed written statement wherein it was contended that ● Defendant was the absolute owner of suit property since he had purchased the same from Plaintiff for a lawful consideration of Rs.1,20,000/- on 27.04.2004 and Plaintiff executed necessary sale documents of the suit property in favour of Defendant i.e. Agreement to sell, registered GPA etc. all dated 27.04.2004. In performance of the said contract, Plaintiff also handed over the possession of suit property to Defendant and since then, Defendant was in the uninterrupted possession of same being its absolute owner. Remaining portions of the suit property were occupied by tenants including Defendant's brother Mehtab Alam, who was living in one room at ground floor as a licencee.
● that after sale dated 27.04.2004, Plaintiff had no right, title or any interest in the suit property. Since the past one year, Defendant's elder brother Aftab Alam and Plaintiff's brothers were continuously putting pressure upon Defendant to resell the suit property to Plaintiff but Defendant had refused for the same. Plaintiff and Aftab Alam raised a new demand from Defendant to give them a loan of Rs.10,00,000/- but Defendant showed his inability to provide them with such a huge amount.
Digitally signed by RAVINDER RAVINDER BEDI BEDI
Date: 2022.10.11 15:51:34 +0530
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● that on 30.10.2011 on the birthday function of minor daughter of Defendant, several guests including Plaintiff and Aftab Alam had come to attend the function. While Defendant & his wife were busy in arrangements, Plaintiff and Aftab Alam took advantage of the situation and stole the entire previous chain of title deeds including Will and Receipt dated 27.04.2004 executed by Plaintiff in favour of Defendant from residence of Defendant. Plaintiff and Aftab Alam were fully aware as to where important documents were kept, since they were educated and most of Defendant's written work used to be got done by them.
● that Defendant received legal notices dated 08.02.2012 and 14.03.2012 from Plaintiff after which he searched the entire chain of title deeds. Defendant replied the legal notice by reply dated 11.04.2012. Plaintiff and Aftab Alam threatened the Defendant that the chain of all property documents was in their possession and again pressurized him either to resell the said property to them or provide them Rs. 10 lacs. Defendant made a written complaint to the then DCP, NE and SHO Khajuri Khas against the illegal acts of Plaintiff and Aftab Alam. Defendant also denied that he was ever inducted as a licensee in the suit property. He contended that the false suit was filed by Plaintiff with malafide and dishonest intentions in collusion with brother Aftab Alam.
Digitally signed by RAVINDER RAVINDER BEDI
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4. From pleadings of parties, ld. trial court settled following issues for adjudication :-
1. Whether the Defendant for a lawful consideration purchased the suit property from the Plaintiff by way of a registered GPA and other documents? OPD
2. Whether the registered GPA dated 27.04.04 executed by the Plaintiff in favour of the Defendant was a sham document? OPP
3. Whether the suit is bad for undervaluation of the suit property? OPD
4. Whether the Plaintiff is entitled to the decree of possession as prayed for in para no. a of the prayer clause? OPP
5. Whether the Plaintiff is entitled to decree of mesne profits and damages as prayed for? OPP
6. Whether the Plaintiff is entitled to the relief of the interest, if any, and as prayed for? OPD
7. Relief.
5. In support of her case, Plaintiff examined herself as PW-1 and also examined Mr. Aftab Alam as PW-2, Mr. Mehtab Alam as PW-3, Sh. Sarfaraz Khan as PW-4, Sh. Mohd. Sadiq as PW-5 and Smt. Janaki, LDC, office of SR IV, Seelampur, Nand Nagri.
Plaintiff tendered her evidence by way of affidavit Ex. PW 1/A and proved documents such as Registered GPA as Ex. PW 1/1, Agreement to sell as Ex. PW 1/2, affidavit as Ex. PW 1/3, receipt of consideration as Ex. PW 1/4, Will as Ex. PW RCA DJ No.143/2018 Shahnawaz Alam v. Shabnam Parveen Page no. 8 of 27 Digitally signed by RAVINDER BEDI RAVINDER BEDI Date: 2022.10.11 15:51:42 +0530 1/5, electricity bills as Ex. PW1/6 (collectively), rent receipts issued in favour of Sarfaraz with respect to one shop and a room as Ex. PW 1/7 (collectively), rent receipts issued in favour of Ikram with respect to one shop as Ex. PW 1/8 (collectively), rent receipts issued in favour of Sadiq with respect to one shop as Ex. PW 1/9 (collectively), Registered GPA executed in favour of Defendant dated 27.04.2004 with respect to suit property as Ex. PW 1/10 and Agreement to sell dated 27.04.2004 as Ex. PW1/11, site plan of suit property as Ex. PW 1/12, Registered deed of Revocation of GPA dated 27.04.2004 as Ex. PW1/13, Legal notice dated 08.02.2012 as Ex. PW 1/14 and postal receipts as Ex. PW 1/15, another Legal notice dated 14.03.2012 as Ex. PW 1/16 and postal receipt dated 16.03.2012 as Ex. PW 1/17.
Mr. Aftab Alam, brother of Plaintiff was examined as PW-2 who tendered his affidavit Ex. PW 2/A and relied upon the documents already exhibited by PW-1. Mehtab Alam another brother of Plaintiff was examined as PW-3 by way of affidavit Ex. PW 3/A and who also relied upon same documents as relied upon by PW-1. Sarfaraz Khan and Mohd. Sadiq were also examined by Plaintiff as PW-4 and PW-5 respectively. Smt. Janaki, LDC, office of SR IV, Seelampur, Nand Nagri, Delhi was also examined as PW 7, brought the record i.e. Revocation Deed of GPA dated 24.02.2009 already exhibited as Ex. PW 1/13.
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6. Defendant in his defence examined himself as DW-1 and filed evidence by way of affidavit and proved the GPA dated 27.04.2004 executed by Plaintiff in his favour as Ex. DW1/1 (already exhibited PW1/10), Agreement to Sell dated 27.04.2004 as Ex. DW1/2(already Ex. PW 1/11), Complaint dated 09.04.2012 against the Plaintiff and Aftab Alam with DCP, NE, District as Ex. DW1/3, Reply to the Notices dated 08.02.2012 and 14.03.2012 as Ex. DW1/4 and its postal receipts as Ex. DW1/5 and DW1/6.
Defendant examined DW-2 Sh. Subhash Chand as record witness for proving the electricity connection in the name of Mr. Mehtab Alam and DW 2A Sh. SI Narender Singh for proving police Complaint. Defendant further examined DW 3 Sh. SI Balbir but the testimony records that the record pertaining to the complaint filed by the Defendant with police was destroyed by order issued by the DCP, North East District, Delhi as Mark DW 3/A.
7. The evidence of parties was closed and ld. trial court after hearing final submissions of the parties and examining the entire record, pronounced its Judgment on 16.11.2018 and decreed the suit of Plaintiff.
Digitally signed by RAVINDER RAVINDER BEDI
BEDI Date: 2022.10.11
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8. Being aggrieved, the Defendant (Appellant) has preferred the present appeal against the impugned Judgment. Ld. counsel for Appellant has assailed the findings of ld. trial court on various grounds which are:
● that ld. trial court did not apply its judicial mind to the case of Plaintiff who improved facts during trial and contradicted her own documents; ld. trial court relied upon the inconsistent version of Plaintiff and overlooked the material discrepancies in her deposition. It failed to consider that Plaintiff had made material concealments with respect to her own claims in evidence.
● that ld. trial court ignored the contents of the Plaint wherein Plaintiff did not even whisper about the sale document i.e. Agreement to Sell dated 27.04.2004; that in entire plaint, Plaintiff nowhere stated that GPA dated 27.04.2004 was a sham document and she brought out this fact only during trial by denying the same and this was a clear improvement in her own pleadings and was inadmissible under law.
● that it was not case of Parties that Agreement to sell dated 27.04.2004 was a sham document and therefore, it was not open for the trial court to reach its own erroneous conclusion that GPA dated 27.04.2004 or Agreement to sell dated 27.04.2004 were sham documents. Plaintiff in her RCA DJ No.143/2018 Shahnawaz Alam v. Shabnam Parveen Page no. 11 of 27 RAVINDER Digitally signed by RAVINDER BEDI BEDI Date: 2022.10.11 15:51:56 +0530 cross examination deposed entirely contrary to her pleadings, when she stated that since 27.04.2004, Defendant had not given any rent to her after collecting the same from different tenants. She stated that her relationship with Mehtab was cordial in the year 2004 and it was so till date, which meant that the said Mehtab was living with her in 2004, which was contrary to the averments in the Plaint in which she stated that Mehtab Alam was inducted in May 2008 in another room of the suit property.
9. Ld. counsel for Defendant pointed to the testimony of PW-3 Mehtab Alam wherein he states that he was living in the suit property since his birth, which was contra to the plaintiff's own case as per which, Mehtab Alam was inducted in the suit property since May 2008. Counsel referred to the discrepancies in testimony of PW-3 and PW-1 viz a viz her cross examination in which, PW-1 stated that Mehtab Alam was residing in the property since 1979. At another point, PW-1 deposed that Mehtab Alam was not residing in the suit property as he was living with her since 2004. Ld. counsel pointed to other material variances in deposition of Plaintiff's witnesses and states that these were overlooked. Ld. counsel submits that ld. trial court reached a factually wrong conclusion by observing that the Plaintiff did not aver that Defendant was not in India when the documents Ex. PW1/10 and Ex PW1/11 were executed, since this was not the case of the parties as also nowhere pleaded by RCA DJ No.143/2018 Shahnawaz Alam v. Shabnam Parveen Page no. 12 of 27 RAVINDER Digitally signed by RAVINDER BEDI BEDI Date: 2022.10.11 15:52:00 +0530 Plaintiff in her Plaint. Counsel further argues that Plaintiff admitted the execution of documents Ex. PW1/10 and Ex. PW1/11 and PW-2 and PW-3 also admitted their signatures and execution before them. In such circumstances, the observation of ld. trial court that GPA Ex. PW1/10 did not bear signature of Defendant, though Agreement to Sell Ex. PW1/11 bore his signatures, was an erroneous conclusion.
10. Another limb of argument of Ld. counsel is that it was not open for Plaintiff to unilaterally Cancel/revoke the Registered GPA dated 27.04.2004 as the same was executed upon receiving of consideration by her. Plaintiff also admitted that the Agreement to sell was prepared on same date. He argues that as per settled position, GPA does not necessarily require signature of the agent and what is required is the signature of principal and two witnesses. Ld. counsel argues that the ld. trial court overlooked that GPA Ex. PW1/10 was a registered document and on the strength of these documents Ex. PW1/10 and Ex. PW1/11, Defendant had become owner of suit property against Consideration. Moreover, Ex. PW1/10 and Ex. PW1/11 were executed by Plaintiff herself, who admitted these in evidence as also by PW-2 and PW-3, it was not open for the trial court to question such admission. In support of this, ld. counsel for Defendant /Appellant has placed reliance upon number of Judgments such as Hardeep Kaur v. Kailash and anr. (DOD as 18.05.2012 by Delhi High Court); Karan Madaan and Ors. v.
Nageshwar Pandey (decided on 26.03.2014 by Delhi High
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Court); Satyanarayan and anr. v. Charan Singh (DOD as
11.07.2018 by Delhi High Court); S. Chattanatha Karayalar v. Central Bank of India (decided on 09.03.65 by Hon'ble Supreme Court); Ramesh Chand v. Suresh Chand and anr. (DOD 09.04.2012 by Delhi High Court); Shrimanth Shamrao Suryavanshi v. Pralhad Bhairobha Suryawanshi (DOD 22.01.2002 by Hon'ble Supreme Court) and Roop Kumar v. Mohan Thedani (DOD 02.04.2003 by Hon'ble Supreme Court).
11. On the other hand, Ld. counsel for Plaintiff /Respondent while supporting the Impugned Judgment contends that ld. trial court rightly passed the order after going through the entire material including the documents produced by parties. Ld. Counsel argued that the document i.e. Agreement to sell Ex. PW1/10 was a sham document and did not have any date or any property number. Counsel referred to para no. 4 of the Ex. PW1/10 and argued that though same referred to the total cost of suit property vide separate Receipt executed by Plaintiff, however, the alleged Receipt or consideration amount was not proved by Defendant on record and therefore, Agreement to sell was a false document having prepared by the Defendant and upon which Plaintiff had put her signatures in good faith. Counsel submitted that the testimony of PW-2 and PW-3 would clearly prove the case of Plaintiff and the Judgments filed in support of the appeal by Appellant had no bearing upon the present matter. He submitted that since chain of documents not being proved, it could not be said that the Defendant became the RCA DJ No.143/2018 Shahnawaz Alam v. Shabnam Parveen Page no. 14 of 27 RAVINDER Digitally signed by RAVINDER BEDI BEDI Date: 2022.10.11 15:52:09 +0530 owner based on such documents. Reliance was placed upon the decision of Kewal Krishan v. Rajesh Kumar and Ors. (decided by Hon'ble Apex Court on 22.11.2021) to contend that sale of any immovable property had to be for a price as per Section 54 of the Transfer of Property Act, else it was not a sale at all in the eyes of law.
12. I have heard respective arguments of Ld. counsels for parties, perused the entire case records as well as authorities relied upon by the either side.
13. Plaintiff-Respondent had laid her claim to the suit property on the basis of GPA related transactions and relied on the registered GPA, unregistered Agreement to Sell, Will, Affidavit and Payment Receipt all executed in her favour by Mr. Ramzani Khan. She claimed that Defendant was a mere licencee in her property in respect of one room, which was in his possession. Defendant refuted the claim of Plaintiff and asserted his ownership over the entire suit property on the basis of a similar set of documents i.e. GPA and Agreement to sell Ex. DW1/A and Ex. DW1/2 (as also admitted and proved by Plaintiff as Ex. PW1/10 and Ex.PW1/11 in evidence). The claim of Defendant was that he was the absolute owner of the entire property having purchased the same from Plaintiff against consideration vide documents GPA, Agreement to sell dated 27.04.2004 Ex. PW1/10 and Ex. PW1/11 and thus was in possession as the owner. RAVINDER Digitally signed by RAVINDER BEDI BEDI Date: 2022.10.11 15:52:13 +0530 RCA DJ No.143/2018 Shahnawaz Alam v. Shabnam Parveen Page no. 15 of 27
14. The first and foremost aspect which is ignored by trial court is that document Ex. PW1/10 was relied by Plaintiff herself and in such a scenario, there was no requirement of framing Issue no. B as mentioned in para no. 11 of the Impugned Judgment which was that "Whether the registered GPA dated 27.04.04 executed by the Plaintiff in favour of the Defendant was sham document? OPP" Ld. trial court failed to observe that the Document GPA Ex. PW1/10 alleged by Plaintiff as a sham document was not pleaded by her in pleadings, and such plea raised by her for the first time during trial was not permissible. In the decision of Hon'ble Apex Court in Bachhaj Nahar v. Nilima Mandal & Anr. (DOD 23.09.2008), it was observed as:-
"............... 8. The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the Plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are :
(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the court.
(ii) A Court cannot make out a case not pleaded.
The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.
(iii) A factual issue cannot be raised or considered for the first time in a second appeal.
Digitally signed by RAVINDER RCA DJ No.143/2018RAVINDER BEDI Date: 2022.10.11 15:52:18 +05 Shahnawaz Alam v. Shabnam Parveen Page no. 16 of 27 ...............9. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take.
10. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. ....."
15. This court observes that fact of PW1/10 as sham document, came for the first time during trial as taken up by Plaintiff and was not part of the pleadings. The Plaintiff's own case was based upon this document i.e. Ex. PW1/10 through which she alleged that she appointed the Defendant as her attorney to manage the property/to collect rents through this document, but she did not deny other documents i.e. Ex. PW1/11 executed along with Ex. PW1/10 by her.
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16. In her evidence, PW-1 Shabnam Praveen testifies for the first time that the GPA dated 27.07.2004 executed in favour of the Defendant was a sham document. However, in her cross examination, she admits the execution of GPA Ex. PW1/10 in favour of Defendant along with Agreement to Sell. She feigns her ignorance as to why this fact of execution of documents by her was not mentioned in her Plaint. She admits that her brothers Aftab Alam and Mehtab Alam were witnesses to the said documents Ex. PW1/10 and Ex. PW1/11 and she had read over the contents of these documents. PW-1 states that she was a Graduate in Fine Arts and was working as a teacher at Little Flower Public School, Shahdara in the year 1996, having joined in the year 1992. In her cross examination, she further states that Ex. PW1/10 was executed without any inducement from Defendant and Defendant was residing in the property since 27.04.2004. Therefore, in essence, the Plaintiff's case as well as testimony adduced in favour of the same was that GPA and Agreement to sell Ex. PW1/10 and Ex. PW1/11 were executed voluntarily and plea that GPA was sham document having taken by the Plaintiff for the first time in her affidavit in evidence held no water.
17. By the GPA Ex. PW1/10 Defendant was also given right to sell the suit property to any person besides entering into any agreement of sale, mortgage, gift deed, whatsoever or to sign the same and to deliver the possession thereof. Similarly, Agreement to sell Ex. PW1/11 mentions that the suit property Digitally signed by RAVINDER BEDI RAVINDER BEDI Date: 2022.10.11 15:52:28 +0530 RCA DJ No.143/2018 Shahnawaz Alam v. Shabnam Parveen Page no. 18 of 27 having sold by Plaintiff to Defendant and the Plaintiff already having received a sum of Rs.1,20,000/- from Defendant as a total cost of the property vide a separate Receipt executed on the same date.
The aspect which ld. trial court has overlooked is that the documents relied herself by Plaintiff Ex. PW1/10 and Ex PW1/11 had conveyed a lawful title in favour of the Defendant in respect of the suit property. The recitals of Ex. PW1/10 and Ex. PW1/11 would show that by these documents, Plaintiff transferred the property to the Defendant at the consideration amount of Rs.1,20,000/-. Apropos the GPA Ex. PW1/10, the clause no. 7 of the same is reproduced as follows:-
"..... 7. To sell the said property to any other person/persons to enter into any agreement deed, sale deed, mortgage deed, gift deed, whatsoever, to sign on the same, to produce the same before Sub- Registrar concerned for registration and to get the same registered, to receive the consideration thereof, to acknowledge the receipt of the same, to deliver the possession. ......"
Similarly, a recital of Agreement to sell Ex. PW1/11 may be reproduced as-
"And Whereas the First party has agreed to sell the above said property to the second party and already has been received a sum of Rs.1,20,000/- (Rupees One Lac & Twenty Thousand ONLY), from the second party, as the total cost of the said property, vide a separate receipt executed on today at Delhi. ......" Digitally signed by RAVINDER BEDI RAVINDER BEDI Date: 2022.10.11 15:52:32 +0530 RCA DJ No.143/2018 Shahnawaz Alam v. Shabnam Parveen Page no. 19 of 27
18. A reading of Ex. PW1/10 and Ex. PW1/11 makes it clear that the transaction in question was for consideration and in such a situation, the nature of GPA becomes irrevocable. The Plaintiff could not have unilaterally revoked such a GPA, since valuable rights were created in favour of Defendant on strength of documents dated 27.04.2004 and possession was handed over to him against sale consideration. Therefore, the observation of ld. trial court that these documents did not confer any title upon the Defendant as these were not registered after the amendment of 2001 and after insertion of Section 17 (1a) of the Registration Act is clearly erroneous and deserves to be set aside.
19. There is no doubt that the ownership of an immovable property or purchase of the same can be proved only in terms of Section 54 of the Transfer of Property Act read with Section 17 of Indian Registration Act, by way of registered sale deed. ld. trial court has referred to decision of Hon'ble Apex Court in Suraj Lamps and Industries Pvt. Ltd. v. State of Haryana, AIR 2009 SC 3077, wherein it is held that sale of immovable property can be effected only by registered sale deed and documents like GPA, SPA, receipt, agreement to sell, Will etc. would not create any title in the same.
20. Hon'ble Apex court however observed that rights created pursuant to Section 53A of the Transfer of Property Act or an irrevocable right of a person holding power of attorney given for valid consideration coupled with interest as per Section Digitally signed by RAVINDER RAVINDER BEDI BEDI RCA DJ No.143/2018 Date: 2022.10.11 15:52:36 +0530 Shahnawaz Alam v. Shabnam Parveen Page no. 20 of 27 202 of the Contract Act would have a legal binding. The judgment in Suraj Lamp (supra) is prospective. In Asha M Jain v. Canara Bank, 94 (2001) DLT 841, Hon'ble High Court of Delhi had held that such documents (GPA, agreement to sell etc.) do create an interest in the immovable property. However, Apex Court in Suraj Lamp (supra) held that such Judgment was not a good law and that such kind of document would not create any title in the immovable property. It was observed that when rights which are created pursuant to Section 53A of Transfer of Property Act, dealing with the Doctrine of part performance, an irrevocable right of a person holding a power of attorney, for consideration coupled with interest as per Section 202 of the Contract Act gets created. No doubt to establish a right or Title in an immovable property, the best of the evidence which is required is the registered sale deed. Having so observed, still by virtue of Section 53A of the Transfer of Property Act, if there are such documents like agreement to sell along with handing over of the possession in part performance, this certainly creates right in favour of proposed buyer. Similarly, in case of execution of GPA for valid consideration, the same creates an irrevocable interest in the property by virtue of Section 202 of the Contract Act.
21. Hon'ble High Court of Delhi in Shri Ramesh Chand vs Suresh Chand & Anr. (RFA No.358/2000, decided on 9 April, 2012), has elaborated the law laid down in the judgment Digitally signed by RAVINDER BEDI RAVINDER BEDI Date: 2022.10.11 15:52:40 +0530 RCA DJ No.143/2018 Shahnawaz Alam v. Shabnam Parveen Page no. 21 of 27 by the Hon'ble Supreme Court of India as under:
" ...... 3. 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 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). 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 ......."
22. In respect of documents, registered general power of attorney, in Hardip Kaur v. Kailash & Anr. (S.B.) 193 (2012) DLT 168, it was observed in para 24 as :
" ........24. Findings Applying the aforesaid principles of law to the facts of the present case, the findings of this Court are as under:-
XXX XXX XXX
(ii) The agreement to sell of itself may not create any interest in the property under Section 54 of the Transfer of Property Act, 1882 but the agreement along with the payment of the entire sale consideration, handing over of the possession, execution of the receipt, affidavit, will, indemnity bond and irrevocable General Power of Attorney create "an interest in the property" within the meaning of Section 202 of the Contract Act.RCA DJ No.143/2018
Shahnawaz Alam v. Shabnam Parveen Page no. 22 of 27 Digitally signed by RAVINDER BEDI RAVINDER BEDI Date: 2022.10.11 15:52:44 +0530
(iii) The words "an interest in property which forms the subject matter of the agency" in Section 202 of the Contract Act, 1872 are of wider amplitude than the words "an interest in or charge on such property"
in Section 54 of the Transfer of Property Act, 1882. Where the seller has received the sale consideration in pursuance of the agreement to sell and has delivered the possession to the purchaser, the purchaser would have interest in the property within the meaning of Section 202 of the Contract Act.
(iv) The Power of Attorney has been conferred not for the benefit of the plaintiff but for the benefit of the agent representing the purchaser and not as representing the principal and, therefore, it is irrevocable. The reason to appoint Surinder Jit Singh, the son and nominee of the purchaser, obviously was that the attorney was regarded as a person interested in the purchaser rather than in the plaintiff whose interest was opposed to that of the purchaser. It is only in law that the attorney became an agent of the plaintiff. But this agency was only with a view to serve the purpose of the purchaser.
His interest in this transaction was the same as that of the purchaser. It was, therefore, the interest of the attorney that the property which was the subject- matter of the agency should be conveyed by the plaintiff to the purchaser.
(v) The Power of Attorney was granted only because an agreement to sell was entered in favour of the purchaser. The attorney no less than the purchaser was, therefore, interested in the subject-matter of the agency, namely, the suit property. If the agency was to be terminated, prejudice would have been caused to the interest not only of the purchaser but also of the attorney.
XXX XXX XXX
.........
(xii) The defendants are protected by Section 53A of RCA DJ No.143/2018 Shahnawaz Alam v. Shabnam Parveen Page no. 23 of 27 RAVINDER Digitally signed by RAVINDER BEDI BEDI Date: 2022.10.11 15:52:48 +0530 the Transfer of Property Act, 1882 and, therefore, the plaintiff is not entitled to the recovery of possession of the suit property. ......"
23. As to the unilateral cancellation of registered documents of GPA etc., in the decision of Vimla Devi v. Pushpa Devi & Anr. on 29.05.2017, Hon'ble Delhi High Court held that :
" ........... 7. In my opinion, the courts below have rightly held that the cancellation of the documents dated 11.2.1998 by the appellant/Plaintiff by the documentation dated 6.4.1998 is of no legal effect. It is required to be noted that transfer of rights in an immovable property is by a contract i.e the same is a bilateral act, and such bilateral contract cannot be cancelled unilaterally i.e by unilateral cancellation of documents by which rights in immovable property are transferred by the transferor to the transferee.
XXX XXX XXX The courts below, in my opinion, have also rightly held that the fact that possession was given to the respondent no.1/Defendant no. 1 by the appellant/Plaintiff in terms of the documents dated 11.2.1998 shows that the appellant/Plaintiff had received the entire sale consideration. I also adopt the other reasoning as given by the courts below showing that complete sale consideration has been duly received by the appellant/Plaintiff. ...."
24. Ld. trial court therefore has reached wrong conclusion by ignoring the fact that the documents Ex. PW1/10 and Ex. PW1/11 could not have been revoked by unilateral Revocation Deed dated 24.02.2009 Ex. PW1/13. Plaintiff, for reasons best known to her, concealed in her plaint regarding RCA DJ No.143/2018 Shahnawaz Alam v. Shabnam Parveen Page no. 24 of 27 Digitally signed by RAVINDER BE RAVINDER BEDI Date: 2022.10.11 15:52:52 +0530 execution of these documents, despite placing reliance upon them in her testimony. She herself proved the Agreement to sell Ex.PW1/11 as well in her testimony and asserted in her cross- examination that it had her signatures. She also specified about Receipt of total consideration by her. Further, in list of documents filed on 13.4.2012, in column no. 2 before trial court, Plaintiff made a reference to documents executed in favour of the Defendant mentioning as "... 2. The photocopy of GPA, Agreement to sell executed by the Plaintiff in favour of the Defendant dated 27.4.2004." It was the admitted case of parties that Plaintiff never resided in the suit property and the Defendant had the possession thereof. It had further come on record that the documents i.e. Ex. PW1/10 and Ex. PW1/11 were executed by Plaintiff in favour of Defendant and the execution was voluntary. Full Bench of Hon'ble Delhi High Court in Rajneesh Kumar Singhal v. The State (National Capital Territory of Delhi) 89 (2001) DLT 511 held that it was an elementary rule that a party litigant cannot be permitted to assume inconsistent positions, to play fast and loose, to blow hot and cold, to approbate and reprobate, to the detriment of the opponent. The plaintiff, herein took the plea that these documents were signed by her in good faith and could not be considered to be the documents conveying ownership and GPA Ex. PW1/10 was also revoked later on. The plea in such circumstances is not permissible. It would not suffice for Plaintiff to merely deny in her cross examination that documents i.e. GPA and agreement to sell were not for sale of suit property to Defendant. The documents have not been RCA DJ No.143/2018 Shahnawaz Alam v. Shabnam Parveen Page no. 25 of 27 Digitally signed by RAVINDER BEDI RAVINDER BEDI Date: 2022.10.11 15:52:58 +0530 assailed by her by seeking relief of Declaration as these being null and void. Plaintiff took the plea that Defendant was not in India at the time of these documents; a plea which is neither in pleadings nor in testimony of Plaintiff, but only taken up during cross-examination of Defendant / appellant. Plaintiff has not led any evidence to prove such assertions. Once she admitted the documents of sale, it did not lie in her mouth to question them on such feeble and unsubstantiated plea to claim relief of Possession without seeking cancellation of these documents.
26. In the judgment of Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors, decided on 25 March, 2008 by Hon'ble Apex Court, it has been observed that :
" .............. 11.3) Where the Plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the Defendant asserts 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 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, possession and injunction. ............"
27. Instead of going for unilateral revocation of GPA, Plaintiff had to seek a Declaration as observed above. For seeking a relief of possession, ownership may not be necessary to be proved in a landlord-tenant relationship. However, legal requirement becomes different in a suit for Possession, where RCA DJ No.143/2018 Shahnawaz Alam v. Shabnam Parveen Page no. 26 of 27 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2022.10.11 15:53:01 +0530 rival parties are making their respective claims of being owner of the suit property. In present case, this court observes that it was necessary for the Plaintiff to establish her claims as owner as a cloud was raised over her title, it was imperative for her to seek a Declaration of her ownership by getting the documents, i.e. Agreement to Sell and GPA Ex. PW1/10 and Ex. PW1/11 declared as null and void, which she alleged to be the sham documents or not executed towards sale of suit property.
28. In view of the foregoing observations, this Court holds that the findings of ld. trial court are erroneous and cannot sustain. Consequently, the judgment and decree dated 16.11.2018 passed by ld. trial court is hereby set aside. Since Plaintiff has failed to prove her entitlement for relief of possession of suit property as claimed, the appeal filed by Appellant / Defendant stands allowed.
Decree sheet be prepared accordingly. TCR be sent back along with copy of the judgment. Appeal file be consigned to the record room. RAVINDER Digitally signed by RAVINDER BEDI BEDI Date: 2022.10.11 15:53:08 +0530 Announced in the open court.
on 06.10.2022 (RAVINDER BEDI)
Additional District Judge-02,
Shahdara, KKD Courts, Delhi
06.10.2022.
RCA DJ No.143/2018
Shahnawaz Alam v. Shabnam Parveen Page no. 27 of 27