Delhi District Court
Mohd. Yamin vs Sh. Rahisuddin on 3 March, 2020
IN THE COURT OF CIVIL JUDGE, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
Presided By : Sh. Vaibhav Chaurasia, DJS
Civil Suit No: 10039/2016
Mohd. Yamin
S/o Sh. Nizamuddin,
R/o H.No. D92/15, Gali No.10,
Mohanpuri, Maujpur, Delhi110053. ... Plaintiff
Versus
Sh. Rahisuddin
S/o Late Sh. Itwari,
R/o C304, Gali No.6,
Rajiv Nagar, Mandoli.
Delhi110093. ... Defendant
SUIT FOR POSSESSION, ARREARS OF RENT
AND PERMANENT INJUNCTION AND FOR
MESNE PROFITS/DAMAGES
DATE OF INSTITUTION : 01.03.2016
DATE OF FINAL ARGUMENTS : 14.01.2020
DATE OF DECISION : 03.03.2020
JUDGMENT
1. The plaintiff has filed the present suit seeking recovery of possession, arrears of rent and permanent injunction and for mesne profit/damages. The plaintiff has pleaded in following terms: "In view of the facts and circumstances mentioned above, it is, therefore, most respectfully prayed that Civil Suit No.10039/2016 Mohd. Yamin v Sh. Rahisuddin Page No.1 of 14 this Hon'ble Court may graciously be pleased : -
(A) To pass a Decree for recovery of possession of built up property bearing no.C304, measuring 25 sq. yd., Gali no.6, Rajiv Nagar, Mandoli, Delhi 110093 as shown in the site plan attached herewith, in favour of the plaintiff and against the defendant. (B) To pass a Decree for recovery of arrears of rent amounting to Rs.70,000/ from the period 29.06.2015 to 29.01.2016 at the rate of Rs.10,000/ per month in favour of the plaintiff and against the defendant along with the interest at rate of 15% per annum from the date of institution of the suit till the realization of the amount.
(C) To pass a Decree of permanent injunction favour the plaintiff and against the defendant thereby restraining the defendant, his family members, associates, friends, relatives, associates, employees and representatives etc. from creating thirdparty interest in the property in question by handing over part with possession to any third person.
(D) To pass a decree of recovery of damages/mesne profit for use and occupation of the premises in question at rate of Rs.20,000/ per month from the date of institution of the suit and till the handing over the possession of the tenanted Civil Suit No.10039/2016 Mohd. Yamin v Sh. Rahisuddin Page No.2 of 14 premises in question, along with interest at the rate of 15% per annum, in favour of the plaintiff and against the defendant.
(E) Any other relief(s) which this Hon'ble Court deems fit and proper may also be awarded in favour of the plaintiff and the cost of the suit may also be awarded to the plaintiff in the interests of Justice."
2. The case of the plaintiff as discernible from the plaint and documents is that plaintiff claims to be the actual owner of the property bearing no.C304, measuring 25 sq. yd., Gali no.6, Rajiv Nagar, Mandoli, Delhi110093 consisting of one room and the verandah at the ground floor and the firstfloor (hereinafter referred to as 'suit property') and has purchased the same from the defendant on 29.06.2015 for proper consideration and the defendant has executed the set of documents i.e. GPA, agreement to sell, affidavit, possession letter, receipt and Will all dated 29.06.2015; that the defendant has handed over the entire chain of documents to the plaintiff; that on the same day when the defendant handed over the possession of the aforesaid property to the plaintiff, the defendant requested the plaintiff to allow the defendant to remain in the above said property for three months on rent; that the defendant was ready and willing to pay Rs.10,000/ per month; that the defendant entered into a rent agreement on 29.06.2015 in presence of the witnesses; that the defendant has not paid single penny towards the monthly rent and the defendant is in arrears of rent Civil Suit No.10039/2016 Mohd. Yamin v Sh. Rahisuddin Page No.3 of 14 amounting of Rs.70,000/; that the tenancy has expired and the plaintiff has served the legal notice dated 02.02.2016; that despite service of legal notice upon the defendant, the defendant has refused to vacate the suit property and further has denied to pay rent and in view thereof, the present suit has been instituted.
3. The written statement was filed on behalf of the defendant wherein the defendant alleges that the plaintiff has not approached this Court with clean hands; that the plaintiff has instituted this suit only to harass the defendant and grab the suit property of the defendant's wife ; that the defendant has transferred/sold the said property in favour of his wife in the year 2013 hence the defendant is not the owner of the property in question; that it is denied that the plaintiff is the actual owner of the suit property; that it is specifically denied the suit property has been purchased by way of set of documents i.e. GPA, agreement to sell, affidavit, possession letter, receipt and Will, all dated 29.06.2015; that it is further submitted that it is not the defendant but the defendant's wife who is actual owner of the suit property and the defendant has no right, title, interest in the suit property; that the plaintiff has manipulated the forged and fabricated documents in order to grab the suit property; that the plaintiff has not given any consideration amount to the defendant; that the plaintiff has taken signatures of the defendant on the blank papers and the same have been misused; that the property is not transferred or registered as per Transfer of Property Act,1882 and Registration Act,1908; that it is submitted that the documents of the suit property has already been lost Civil Suit No.10039/2016 Mohd. Yamin v Sh. Rahisuddin Page No.4 of 14 anywhere and in this regard the defendant has made a report vide NCR no.298/14 dated 21.03.2014; that it is denied that the defendant has handed over the possession of the suit property to the plaintiff and thereupon he has taken the same property on rent at the rate of Rs.10,000/ per month: that it is further submitted that no rent agreement was ever made between the parties; that the defendant is not liable to pay single penny to the plaintiff and that the plaintiff is misleading the Court and in view thereof, no ground is made out for the relief, as prayed by the plaintiff in his plaint and therefore, the suit must be dismissed with the heavy cost.
4. In his replication, the plaintiff has traversed the contents of the written statement, made the necessary denials and reaffirmed the facts as stated in the plaint.
5. Vide order sheet dated 04.05.2018, the Ld. Predecessor Judge has framed the following issues: "(i) Whether the suit has not been properly valued and no proper court fee has been paid? OPP
(ii) Whether the plaintiff is entitled to a decree of possession of the suit property as prayed for in prayer no. A? OPP
(iii) Whether the plaintiff is entitled to a decree of arrears of rent as prayed for in prayer no.B? OPP
(iv) Whether the plaintiff is entitled to a decree of Civil Suit No.10039/2016 Mohd. Yamin v Sh. Rahisuddin Page No.5 of 14 permanent injunction as prayed for in prayer no.C? OPP
(v) Whether the plaintiff is entitled to a decree of damages/mesne profits and if yes, at what rate and for which period? OPP
(vi) Relief."
6. Thereupon the matter was adjourned for plaintiff's evidence. The plaintiff has examined two witnesses. The plaintiff has examined himself as PW1 Mohd. Yamin. PW1 Mohd. Yamin has tendered his evidence by way of affidavit i.e. Ex.PW1/1 and has relied upon the documents viz. copy of general power of attorney, Ex.PW1/A (OSR) (Colly 5 pages), copy of agreement to sell, Ex.PW1/B (OSR) (Colly 6 pages), copy of affidavit, Ex.PW1/C (OSR) (Colly 3 pages), copy of possession letter, Ex.PW1/D (OSR), copy of receipt, Ex.PW1/E (OSR), site plan, Ex.PW1/G, copy of rent agreement, Ex.PW1/H (OSR) (Colly 4 pages), copy of legal demand notice, Ex.PW1/I, postal receipt, Ex.PW1/J, pretending envelop having postal remark refused, Ex.PW1/K. There was no document on record as Ex.PW1/F. PW1 Mohd. Yamin was examinedinchief on 18.08.2018 and was cross examined on 18.10.2018.
7. PW2 i.e. Sh. Jalees Ahmad has tendered his evidence by way of affidavit, Ex.PW2/A and has relied upon the following documents viz. copy of general power of attorney, Ex.PW1/A (OSR) Civil Suit No.10039/2016 Mohd. Yamin v Sh. Rahisuddin Page No.6 of 14 (Colly 5 pages) bearing his signature at point C as witness, copy of agreement to sell, Ex.PW1/B (OSR) (Colly 6 pages) bearing his signature at point C as witness, copy of possession letter, Ex.PW1/D (OSR) bearing his signature at point C as witness, copy of receipt, Ex.PW1/E (OSR) bearing his signature at point C as witness, copy of rent agreement, Ex.PW1/H (OSR) (Colly 4 pages) bearing his signature at point C as witness, PW2 Sh. Jalees Ahmad was examined inchief on 17.01.2019 and before PW2 Sh. Jalees Ahmad could be crossexamined, the defendants were proceeded exparte, on 22.11.2019.
8. Thereupon the matter was fixed per final arguments. This Court has heard Sh. S.C. Sharma, the Ld. Advocate for the plaintiff and Sh. Shahnawaj, the Ld. Advocate for the defendant, on 14.010 2020. The issue wise findings are as follows: -
ISSUE NO.(II)
9. Before this issue can be adjudicated upon as to whether plaintiff is entitled to decree of possession as being owner and further as landlord, it is essential to inquire as to the interest of plaintiff in the suit property . It is also pertinent to quote the judgment of Suraj Lamps & Industries Pvt. Ltd. v State of Haryana & Anr. 183 (2011) DLT 1 (SC) it is necessary to reproduce certain paras of this judgment of the Hon'ble Supreme Court, and the relevant paras no.12, 13, 14 and 16 Civil Suit No.10039/2016 Mohd. Yamin v Sh. Rahisuddin Page No.7 of 14 read as under: "12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53A of Transfer of Property Act).
According to Transfer of Property Act, an agreement of sale, whether with possession or without possession, is not a conveyance.
Section 54 of Transfer of Property Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.
Scope of Power of Attorney
13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law.
Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan v. Basant Nehata MANU/SC/0547/2005 : 2005 (12) SCC 77 this Court held:
"A grant of power of attorney is essentially Civil Suit No.10039/2016 Mohd. Yamin v Sh. Rahisuddin Page No.8 of 14 governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favor of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience. Execution of a power of attorney in terms of the provisions of the Contract Act as also the PowersofAttorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the done to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. RFA No. 358/2017 Page 9 of 12 The done in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.
Scope of Will
14. A will is the testament of the testator. It is a Civil Suit No.10039/2016 Mohd. Yamin v Sh. Rahisuddin Page No.9 of 14 posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivo. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. It is said that so long as the testator is alive, a will is not be worth the paper on which it is written, as the testator 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.
16. We therefore reiterate 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. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53A of the Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment Civil Suit No.10039/2016 Mohd. Yamin v Sh. Rahisuddin Page No.10 of 14 of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales." (emphasis added)
10. It is also pertinent to mention that Suraj Lamps is prospective in nature. The set of document which plaintiff claims to have been executed with the defendant are after the year 2011, and further the set of documents do not confer any ownership/better title rights upon the plaintiff. GPA in question provides for right to sell the property however no adequate stamp duty has been paid. The Agreement to sell is not registered as well as inadequately stamped to confer any right under Section 53A of Transfer of Property Act 1882. Further Will cannot be relied upon as defendant is alive. No document can be said to be conferring any ownership right or better title as per law in light of Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana and Anr. 183 (2011) DLT 1 (SC) and Ramesh Chand v Suresh Chand & Anr., 188 (2012) DLT 538, therefore the plaintiff cannot be said to have any ownership interest in the suit property and that also the plaintiff claims to have purchased the suit property from the defendant therefore, on balance of probability also tilts in favour of the defendant and in view of set of documents i.e GPA, agreement to sell, affidavit, possession letter, receipt and will all dated 29. 06. 2015 which are executed after the pronouncement of Suraj Lamps & Industries Pvt. Ltd. v State of Haryana and Anr. 183 (2011) DLT 1 (SC), Civil Suit No.10039/2016 Mohd. Yamin v Sh. Rahisuddin Page No.11 of 14 the same do not finds value in the eyes of law. Since the plaintiff do not have any ownership/better title interest, the plaintiff cannot confer tenancy qua suit property to the defendant. This issue is decided against plaintiff and in favour of the defendant. In this regard, reference is craved to the judgments in Gurcharan Singh Chadda v The B.D.O. (Gaon Sabha Mundka) & Anr., 2018 SCC OnLine Del 12271, Haji Abdul Mateen (Deceased) through LRs v Rattan Singh, 2018 SCC OnLine Del 12268 and Saroj Aggarwal v Mehar Singh & Ors., 2018 SCC OnLine Del 120221, wherein the Hon'ble High Court of Delhi, relying upon Suraj Lamp and Industries Private Limited v State of Haryana and Anr., (2012) 1 SCC 656 has categorically held that there cannot be any transfer of title/ownership through agreement to sell, power of attorney, receipt, possession letter etc. Further reliance is placed on Wg. Cdr. (Retd.) Sh. Yeshvir Singh Tomar v Dr. O.P. Kohli and Ors., (2015) 222 DLT 285, wherein the Hon'ble High Court of Delhi has denied reliefs of declaration of ownership and consequential possession, to the plaintiff, sought on the basis of agreement to sell, GPA etc. dated 06.11.2006, on the ground that the documents of the plaintiff were not registered as per the amendments brought in the Indian Stamp Act, 1899 and Transfer of Property Act, 1882 w.e.f. 24.09.2001.
1 All the said judgments have been pronounced in October 2018 and in the last judgment, the Hon'ble High Court of Delhi has also distinguished the judgment of the Hon'ble Supreme Court in Maya Devi v Lalta Prasad, (2015) 5 SCC 588.
Civil Suit No.10039/2016Mohd. Yamin v Sh. Rahisuddin Page No.12 of 14 ISSUE NO.(I)
11. In view of the fact that the plaintiff has alleged the defendant to be tenant, the suit has been valued properly and excess court fees has been paid. Therefore, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO.(III)
12. In view of the adjudication qua issue no.(ii), decided against plaintiff, no question arises as to the arrears of rent. Accordingly, this issue is decided in favour of the defendant and against the plaintiff.
ISSUE NO.(IV)
13. In view of the adjudication qua issue no.(ii), decided against plaintiff, no question arises as to the injunction, as prayed by the plaintiff. Accordingly, this issue is also decided in favour of the defendant and against the plaintiff.
ISSUE NO.(V)
14. In view of the adjudication qua issue no.(ii), decided Civil Suit No.10039/2016 Mohd. Yamin v Sh. Rahisuddin Page No.13 of 14 against plaintiff,no question arises as to the arrears/damages/mesne profit, as prayed by the plaintiff. Accordingly, this issue is also decided in favour of the defendant and against the plaintiff.
RELIEF
15. In view of the aforesaid findings, the suit is dismissed. No order as to cost.
16. Upon preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
Announced in open Court (Vaibhav Chaurasia) today on 03.03.2020 Civil Judge/Shahdara district Karkardooma Courts/Delhi Digitally signed by VAIBHAV VAIBHAV CHAURASIA CHAURASIA Date:
2020.03.03 16:13:48 +0530 Civil Suit No.10039/2016 Mohd. Yamin v Sh. Rahisuddin Page No.14 of 14