Delhi District Court
Mahender Kumar vs . Amar Singh on 26 September, 2019
Mahender Kumar vs. Amar Singh
Civil Suit No. 94160/16
IN THE COURT OF RAHUL VERMA, CIVIL JUDGE 07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Civil Suit No: 94160/16
CNR No. : DLCT030000292006
Date of Institution: 18.09.2006
Date of Decision: 26.09.2019
Mahender Kumar
S/o Sh. Hakim Rai,
R/o 3765, Kanhaiya Nagar,
Tri Nagar, Delhi110035.
...................Plaintiff
Versus
Sh. Amar Singh
S/o Sh. Hari Pershad
R/o D564, Mangolpuri, Delhi
............Defendant
SUIT FOR POSSESSION, ARREARS OF MESNE PROFITS, RENT /
DAMAGES, PERMANENT INJUNCTION
Present: None.
JUDGMENT:
1) Present suit has been filed by the plaintiff seeking Possession, arrears of mesne profits, rent / damages and permanent injunction with respect to the Property bearing No. D564, measuring 25 sq. yds., Mangolpuri, Delhi (hereinafter called as suit property).
AVERMENTS IN THE PLAINT
2) It is the case of the plaintiff that plaintiff had purchased the property bearing no. D564, measuring 25 sq. yds, Mangolpuri, Delhi from the defendant for a consideration of Rs. 60,000/ and the defendant executed relevant sale documents in favour of the plaintiff, which are duly registered with the Sub Registrar, Delhi on dt. 11.07.2000. The defendant had also handed over the original ownership possession slip of the suit property to the plaintiff.
Page 1 of 12 (Rahul Verma)Civil Judge07, Central, Delhi Mahender Kumar vs. Amar Singh Civil Suit No. 94160/16 However, after execution of the sale documents, the defendant did not hand over the possession of the suit property. Defendant had agreed to pay Rs. 600/ per month to the plaintiff as interest /damages till the handing over the possession of the suit property. An agreement was also executed by the defendant in favour of plaintiff to this effect. Despite repeated requests, the defendant did not make the payment of interest / damages as per the agreement. Plaintiff issued a legal notice dt. 02.06.05, which was duly received by the defendant. However, despite receipt of the notice, the defendant did not vacate the suit property. Hence the present suit. It is averred by the plaintiff that defendant is in use and enjoyment of the suit property without paying any use and occupation charge w.e.f. 11.07.04. However, plaintiff has claimed legally recoverable damages / interest for the last three years only i.e. w.e.f. September 2003 till August 2006 @ Rs. 600/ per month.
AVERMENTS IN THE WRITTEN STATEMENT
3) Upon notice being issued, the defendant appeared and filed his WS. In the WS, the defendant has taken preliminary objections that the plaintiff has no locus standi to file the present suit, and the suit is not maintainable as there is no cause of action in favour of the plaintiff. In reply on merits, the defendant denied that the plaintiff had purchased the property bearing no. D564, measuring 25 sq. yds., Mangolpuri, Delhi. The plaintiff did not pay single penny to the defendant. Sh. Mishri Lal, subagent of firm Salasar International, Pitampura, Delhi approached the defendant in the year 1989 and obtained Rs. 10,000/ cash in advance for visa etc. for sending the plaintiff from India to Russia. Later on, he demanded Rs. 50,000/ and when the defendant showed his inability to pay Rs. 50,000/ then he demanded possession letter of defendant's house D564. The defendant is an illiterate person and can sign only in Hindi, and in good faith he handed over the original possession letter of Mishri Lal. Then Mishri Lal took the defendant to Pitampura court, where Mishri Lal and his associates obtained the Page 2 of 12 (Rahul Verma) Civil Judge07, Central, Delhi Mahender Kumar vs. Amar Singh Civil Suit No. 94160/16 signatures and thumb impression of defendant on number of papers by way of misrepresentation for the purpose of blackmail, cheating and grabbing the defendant's property bearing no. D564. Plaintiff is relative/ known person of said Mishri Lal and Mishri Lal had also signed as witness on the alleged documents. However, no such transaction was entered between the plaintiff and the defendant has already canceled the GPA, Will through SubRegistrar VI C, Rohini, Delhi vide R no. 23189 dt. 11.10.06. The defendant also filed complaint to SHO, PS Mangolpuri, Delhi and to higher authorities of police, which are pending under investigation. It is further submitted that in the year 2000 market value of the said property was about Rs. 5,00,000/, therefore, the property can not be sold for a sum of Rs. 60,000/. It is further submitted that Mishri Lal sent the defendant to Dubai after taking Rs. 50,000/ and possession letter of the suit property from the defendant. The defendant further denied that he agreed to pay Rs. 600/ per month to the plaintiff as interest / damages. It is further submitted that only a symbolic possession was handed over by the defendant to the plaintiff. By taking the wrong benefit of illiteracy and innocence of the defendant and by obtaining his signature and thumb impression on blank papers, the plaintiff in collusion with Mishri Lal misused the forged documents. Further, the defendant requested the plaintiff to return the original possession letter of the suit property. It is submitted that defendant is absolute and lawful owner of the suit property. All the other avements of the plaint are denied with the request to dismiss the suit.
REPLICATION
4) By virtue of the replication, averments of the plaint have been reiterated, and contents of the written statement have been denied. ISSUES
5) From the pleadings of the parties following issues are framed vide order dt.
29.11.07 : Page 3 of 12 (Rahul Verma) Civil Judge07, Central, Delhi Mahender Kumar vs. Amar Singh Civil Suit No. 94160/16
1. Whether the plaintiff has no cause of action or locus standi to file the present suit against the defendant? OPD
2. Whether the plaintiff is entitled for the recovery of possession, as claimed? OPP
3. Whether the plaintiff is entitled for recovery of damages / mesne profit, as claimed? OPP
4. Whether the plaintiff is entitled for decree of injunction, as prayed for?OPP.
5. Relief.
PLAINTIFF'S EVIDENCE :
6) To prove his case, the plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/A. He relied upon following documents : Ex. PW1/1 Site plan Ex. PW1/2 Possession Slip dt. 26.04.1976 Ex. PW1/3 General Power of Attorney dt. 11.07.2000 Ex. PW1/4 Registered Will Ex. PW1/5 Agreement to Sell Ex. PW1/7 Affidavit (incorrectly mentioned as Ex. PW1/6 on the document. Be read as Ex. PW1/7 only) Ex. PW1/8 Possession letter, Receipt (incorrectly mentioned as Ex. PW1/7 on the document. Be read as Ex. PW1/8 only) Ex. PW1/9 Agreement Ex. PW1/10 Special Power of Attorney Ex. PW1/11 Notice dt. 02.06.05 Ex. PW1/12 and Postal receipt alongwith AD Ex. PW1/13 Ex. PW1/14 Reply notice Ex. PW1/15, Ex. Reply notice dt. 31.10.06 alongwith postal receipts PW1/16 and Ex.
and UPC PW1/17 Page 4 of 12 (Rahul Verma) Civil Judge07, Central, Delhi Mahender Kumar vs. Amar Singh Civil Suit No. 94160/16
7) The plaintiff further examined Sh. Mahender Kumar, Data Entry Operator as PW2 as summoned witness.
8) Sh. R.K. Srivastava, Advocate was also examined as PW3 as summoned witness. Further, Sh. Misri Lal was examined as PW.
9) Thereafter, plaintiff's evidence was closed by way of separate statement dt.
24.01.18.
DEFENDANT'S EVIDENCE :
10) On the other hand, the defendant examined Sh. Suraj Bhan as DW1. He tendered his evidence by way of affidavit Ex. DW1/A. He relied upon the documents already exhibited by the plaintiff on 24.04.08 and two documents already exhibited by defendant on 10.09.18 and copy of police complaint dt. 10.10.06 as Mark A.
11) Sh. Devender Bhaskar was examined as DW3. He tendered his evidence by way of affidavit Ex. DW3/A. He relied upon the following documents : Ex. DW3/1 Copy of Will dt. 11.07.2000 Ex. DW3/2 Copy of General Power of Attorney dt. 11.07.2000 FINDINGS:
12) Arguments advanced by counsel for plaintiff as well as defendant have been heard. Again written submission filed on behalf of plaintiff as well as defendant have been perused. File has been carefully and minutely perused and my issuewise findings with reasons thereof are as under : Issue No.1 Whether the plaintiff has no cause of action or locus standi to file the present suit against the defendant? OPD And Issue No.2 Whether the plaintiff is entitled for the recovery of possession, as claimed? OPP
13) The onus of proof of issue no.1 was upon the defendant. The onus of proof of issue no.2 was upon the plaintiff.Page 5 of 12 (Rahul Verma)
Civil Judge07, Central, Delhi Mahender Kumar vs. Amar Singh Civil Suit No. 94160/16
14) Since both the issues are interconnected, and can be disposed of on appreciation of common evidence, both these issues are being taken up together.
15) In order to ascertain whether the plaintiff is entitled to a decree for recovery of possession of the suit property from the defendant, it is necessary to determine whether plaintiff has any right, title or interest in the suit property.
16) In the present suit, the plaintiff has claimed that he is entitled to possession of the suit property being the owner of the same as the same was purchased from the defendant for a consideration of Rs. 60,000/ after the relevant sale documents were executed in favour of the plaintiff. In support of this claim, the plaintiff examined himself as PW1 and filed his evidence by way of affidavit reiterating the stand taken in the plaint. However, in the plaint and in his evidence by way of affidavit, the plaintiff has only mentioned that "the defendant executed relevant sale documents in favour of the plaintiff, which are duly registered with the SubRegistrar, Delhi on dt. 11.07.2000." Neither in the plaint nor in his evidence by way of affidavit he specified what are the "relevant sale documents" which he is relying upon. However, it is clear from his evidence that he is claiming ownership primarily through agreement to sell, general power of attorney(GPA) and Will. While the Will Ex. PW1/4 and GPA Ex. PW1/3 are registered, the other documents such as SPA Ex. PW1/10, the agreement to sell Ex. PW1/5 are not registered.
17) Now, the question arises whether a property can be sold through the documents such as agreement to sale, GPA, SPA and Will as relied upon by the plaintiff.
18) In this regard, it is pertinent to refer to Section 54 of the Transfer of Property Act which defines "sale." It is read as under:
54.'Sale' defined '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 other intangible thing, can be made only by a registered instrument.
Page 6 of 12 (Rahul Verma)Civil Judge07, Central, Delhi Mahender Kumar vs. Amar Singh Civil Suit No. 94160/16 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.
19) Therefore, from the bare perusal of aforesaid Section 54 it is clear that a contract of sale/agreement to sell itself cannot create any interest in or charge on such property. Hon'ble Apex Court held in Suraj Lamp & Industries v. State of Haryana, (2012) 1 SCC 656 that:
"16. Section 54 of the 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 [(1977) 3 SCC 247] observed: (SCC pp. 25455, paras 3233 & 37) "32. 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 Ram Baran Prasad v. Ram Mohit Hazra [AIR 1967 SC 744 : (1967) 1 SCR 293] .) The fiduciary character of the personal obligation created by a contract for sale is recognised 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 obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.
33. In India, the word 'transfer' is defined with reference to the word 'convey'. ... The word 'conveys' in Section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership.
***
37. ... that only on execution of conveyance, ownership passes from one party to another...."
18. It is thus clear that a transfer of immovable property by way of sale 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."
Page 7 of 12 (Rahul Verma)Civil Judge07, Central, Delhi Mahender Kumar vs. Amar Singh Civil Suit No. 94160/16
20) Therefore, it is clear that mere agreement to sell does not create any interest in the property in favour of any party.
21) The plaintiff has also relied upon GPA, SPA to claim ownership over the suit property. However, it is settled law that a power of attorney is not an instrument of transfer ownership title. Purpose of executing a power of attorney is only to formally appoint an agent authorising him to act for the principal in series of transactions or to manage the affairs of the principal. It was laid down in Suraj Lamp & Industries v. State of Haryana, (2012) 1 SCC 656 that : "20. 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 authorises 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 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."
22) Therefore, reliance of GPA, SPA does not help plaintiff's case as the same cannot confer any title on the plaintiff.
23) The plaintiff has also relied upon Will Ex. PW1/4 dt. 11.07.2000 to claim that the suit property has been bequeathed upon him. However, it is settled principle of law that a Will becomes operative only upon the death of the testator and can be revoked at any time during his life time. It was held in case of Suraj Lamp & Industries v. State of Haryana, (2012) 1 SCC 656 that : "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 Page 8 of 12 (Rahul Verma) Civil Judge07, Central, Delhi Mahender Kumar vs. Amar Singh Civil Suit No. 94160/16 which it is written, as the testator 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."
24) In the present case, admittedly, the Will has already been revoked by the testator/defendant. Therefore, reliance upon the said Will does not help the case of the plaintiff.
25) The reference to the aforesaid judgement show that unless there is a proper registered sale deed, title of an immovable property does not pass. It has been categorically laid down in Suraj Lamp & Industries v. State of Haryana, (2012) 1 SCC 656 that "immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions 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 immoveable property."
26) Admittedly, in the present case, no sale deed was executed. Therefore, it is clear that no right, title or interest in an immovable property could have been transferred by virtue of an agreement to sell, GPA, SPA and Will as relied upon by the plaintiff.
27) Now, coming to the defence put up by the defendant, it is averred that the defendant never sold his property to the plaintiff and that his signatures were obtained on the aforesaid documents by causing misrepresentation and taking the wrong benefit of his illiteracy. It is further argued that the defendant had only agreed for taking a loan amount of Rs. 60,000/. Therefore, it is important to see the aforesaid documents from the perspective of consideration. It is the case of the plaintiff that he paid Rs. 60,000/ to the defendant as consideration for the sale transaction. He relied upon the GPA, Will and agreement to sell to prove that consideration of Rs. 60,000/ was paid to the defendant. However, the plaintiff has also filed a mortgage agreement Ex. PW1/9 where it is again stated that Rs. 60,000/ Page 9 of 12 (Rahul Verma) Civil Judge07, Central, Delhi Mahender Kumar vs. Amar Singh Civil Suit No. 94160/16 was given as loan and the suit property was taken as security. These two documents contradict each other since it is not the case of the either party that Rs. 60,000/ were paid to the defendant twice. There is neither any averment by either parties or any evidence to show that the defendant received Rs. 60,000/ as consideration of sale of the suit property and another Rs. 60,000/ as loan in the mortgage agreement. Since it is admitted position that Rs. 60,000/ was paid only once, it implies that the same could have been paid to the defendant either for the sale transaction or as a loan/mortgage amount. While the alleged sale documents have been denied by the defendant, the mortgage agreement is admitted not only by the defendant but also by the plaintiff himself. Hence, the only agreement that could have been valid was only the mortgage agreement. The sale transaction, if any, was therefore without consideration. An agreement without consideration is void. Therefore, the entire alleged sale transaction would be void.
28) Moving further, it has also been argued on behalf of the defendant that the suit property cannot be sold to anyone since the suit property was allotted by Slum and JJ Deptt. in the name of Sh, Amar Singh. Further, that the status of Sh. Amar Singh was that of the licensee and that he had no right to sell the said property. Perusal of record shows that it is the plaintiff's own case that the time of executing the sale documents the original possession slip was handed over by the defendant to the plaintiff. It is clear from said possession slip that it is not a title document, rather it shows that the suit property was allotted by Slum and JJ Deptt. in the name of Sh, Amar Singh. Further, the plaintiff himself admitted in his cross examination dt. 24.08.2011 that "it is correct that the suit property belong to J.J Slum, DDA. It is also correct that that this property is on lease basis and is given to jhuggi jhopri. It is correct that aforesaid property is not free hold." Therefore, there remains no doubt that not only the documents relied upon by the plaintiff are incapable of transferring any ownership title to the plaintiff, but also the suit property itself belong to DDA and therefore no right, title or interest could have been Page 10 of 12 (Rahul Verma) Civil Judge07, Central, Delhi Mahender Kumar vs. Amar Singh Civil Suit No. 94160/16 transferred by the defendant/licensee. Sale transaction, if any, is therefore void.
29) I am also taking judicial notice of the fact that the connected suit titled as "Amar Singh vs. Mishri Lal & Anr." bearing Civil Suit No. 3060/18 has been decreed whereby the documents i.e. General Power of Attorney, Agreement to Sell, Affidavit, Receipt, Possession Letter and Will all dt. 11.07.2000 have been cancelled, having now no effect in eyes of law. Since the alleged sale documents themselves have been cancelled under Section 31 of Specific Relief Act, no right, title, or interest can be claimed relying upon these documents.
30) In view of the above discussion, I come to the conclusion that the plaintiff has failed to prove his entitlement over the suit property, and therefore, he cannot be held entitled to recover the possession of the suit property.
31) Issue No. 1 is accordingly decided in favour of the defendant and against the plaintiff. Issue No. 2 is accordingly decided against the plaintiff and in favour of the defendant.
Issue No. 3: Whether the plaintiff is entitled for recovery of damages / mesne profit, as claimed? OPP
32) The onus of proof of this issue was upon the plaintiff.
33) In view of my finding on Issue No. 1 and 2, I am of the considered opinion that the plaintiff has failed to establish any right, title or interest over the suit property. Therefore, he cannot be held entitled to claim damages/mesne profits from the defendant.
34) This issue is accordingly decided against the plaintiff and in favour of the defendant.
Issue No. 4: Whether the plaintiff is entitled for decree of injunction, as prayed for? OPP
35) The onus of proof of this issue was upon the plaintiff.
36) In view of my finding on Issue No. 1 and 2, I am of the considered opinion that the plaintiff has failed to establish any right, title or interest over the suit Page 11 of 12 (Rahul Verma) Civil Judge07, Central, Delhi Mahender Kumar vs. Amar Singh Civil Suit No. 94160/16 property. Therefore, he cannot be held entitled to decree of injunction thereby restraining the defendant from creating any third party rights.
37) This issue is accordingly decided against the plaintiff and in favour of the defendant.
RELIEF :
38) In view of the findings on the aforesaid issues, the suit of the plaintiff is hereby dismissed. No order as to costs.
39) Decree sheet be prepared accordingly.
40) File be consigned to Record Room after due compliance.
Digitally
signed by
RAHUL
RAHUL VERMA
VERMA Date:
2019.09.27
16:57:02
+0530
Pronounced in open court: (Rahul Verma)
Dated: 26.09.2019 Civil Judge07, Central,
Tis Hazari Courts, Delhi
Note : This Judgment contains twelve pages and all the pages have been checked and signed by me.
(Rahul Verma) Civil Judge07, Central, Tis Hazari Courts, Delhi Page 12 of 12 (Rahul Verma) Civil Judge07, Central, Delhi