Delhi District Court
Sh. Prem Chand Mehra S/O Sh. Ganga Ram ... vs Sh. Sanjay S/O Sh. Ramesh Kumar on 28 September, 2013
IN THE COURT OF SH. RAKESH KUMARIII
JSCC : ASCJ : GUARDIAN JUDGE (SHAHDARA) :
KARKARDOOMA COURTS : DELHI.
Civil Suit no: 641/07
Unique Case ID no.: 02402C0147082006
1. Sh. Prem Chand Mehra S/o Sh. Ganga Ram Mehra
2. Master Ravi S/o Sh. Prem Chand Mehra
3. Baby Komal D/o Sh. Prem Chand Mehra
4. Baby Kajol D/o Sh. Prem Chand Mehra
5. Master Karamchand S/o Sh. Prem Chand
All R/o H. No. 34/244, Trilok Puri, Delhi110091.
....... Plaintiffs
Versus
1. Sh. Sanjay S/o Sh. Ramesh Kumar
2. Sh. Rafiq S/o Sh. Mohabbat Ali
Both R/o 35/461, Trilok Puri, Delhi91.
...... Defendants
Suit for Possession with Mense Profits and Damages
Date of Institution of the suit : 08.03.2006
Date on which judgment was reserved : 12.09.2013
Date of decision : 28.09.2013
Decision : Suit Dismissed
J U D G M E N T
1. By filing the present suit plaintiff seeking a decree of possession with mesne profit and damages on the ground that the Bimla Devi wife of plaintiff purchased property bearing No. 35/461 (plot No. 461, Civil Suit no. 641/07 Page NO. 1 / 15 Block 35) Trilok Puri, Delhi91, measuring 25 sq. yards fitted with Electricity meter and Water connection with its whole superstructure constructed of one room set of the ground floor as well as right to construct on first floor from Shri Ram S/o Ram Prakash on 26.12.2005 through irrevocable GPA (registered on 26.12.05) with receipt for full and final consideration , affidavit, agreement to sell etc.
2. It is contended that the property captioned above was allotted to Smt. Asha Sharma W/o Sh. Ramesh Kumar from DDA who sold the same through registered GPA, agreement to sell, will to her brother Shri Ram S/o Sh. Ram Prakash on 17.04.2003 and handed over the vacant and physical possession to Shri Ram to whom the property in question was purchased by the Bimla Devi W/o plaintiff Prem Chand Mehra on 26.12.2005.
3. After getting the said property, wife of the plaintiff has expired on 22.01.2006 leaving behind 4 minor children and husband of the plaintiff but due to said demise of his wife the premises remained locked for one and half months and when on 15.02.06 (inadvertently written 15.02.05) the plaintiff visited the suit premises, he came to know that the the defendant has illegally trespassed after breaking open the locks and when plaintiff requested to go outside as he is owner of the property then the defendant threatened the plaintiff of dire consequences and asked to leave the spot. Consequently, matter has been reported to he police but despite direction no document of property in question was Civil Suit no. 641/07 Page NO. 2 / 15 produced which confirm the title in favour of the defendant, no action has been taken by the police against the defendant and advised to the plaintiff to file the civil suit to take recourse from the civil court as no criminal case is made out resulting into filing the present suit as such cause of action arose on 26.12.2005 when the suit premises was purchased by the wife of the plaintiff, when the wife of the plaintiff expired on 22.01.06 and when illegal possession of the suit premises came to the knowledge of the plaintiff on 15.02.06 complaint to this effect has been lodged and lastly when the police did not take any action against the defendant in respect to the illegal possession of the property in question.
4. It is further contended that at the time of filing of suit the prevailing market of rent of the property in question cannot be less than Rs.3,000/ per month excluding the electricity and water charges and suit property is valued for the purpose of court fees and jurisdiction Rs. 1 lakh and for the purpose of mesne profit and damages on the prevailing market rent i.e., Rs.3,000/ per month and paid requisite court fees.
5. In reply joint WS filed on behalf of the defendant no. 1 and 2 who took preliminary possession as plaintiff has not come in the court with clean hand and suppressed the material facts and all allegations are false and fabricated and plaintiff neither the owner of the property in question nor in possession.
6. On merits all the contents of the plaint has been denied and it is specific denied that the plaintiff is the owner of the property in question Civil Suit no. 641/07 Page NO. 3 / 15 with submission that defendant is the son of Asha Sharma who was the original allottee of the DDA flats which is the property in question and after the death of Asha Sharma on 30.05.2005 the defendant no. 1 became absolute owner of the property in question by way of Will dated 10.05.02 executed by his mother (but will has been misplaced to this effect police complaint also lodged with the PSMayur Vihar) and since then defendant no. 1 has been residing in the property in question as such wife of the plaintiff Bimla Devi and her legal heirs have no right title interest in the suit property. It is also specific denied that the Asha Sharma sold the property in question to her brother Shri Ram and handed over the vacant and physical possession of the property for the consideration.
7. It is also denied that the alleged story of the plaintiff that the suit premises remained locked of about one and half months due to the demise of the wife of the plaintiff and further denied that on 15.02.05 the plaintiff has visited the property in question and found that the defendant has trespassed and entered into the suit premises illegally after breaking the locks.
8. It is further contended that the defendant no. 1 and 2 entered into a rent agreement vide dated 06.01.06 and subsequent defendant no. 1 expressed his desire to sale out the property in question and asked to the defendant whether he would like to purchase the property in question which he agreed and accordingly the property in question had been sold by defendant to Shabana Begum, who is wife of the defendant no. 1, on Civil Suit no. 641/07 Page NO. 4 / 15 25.01.2006 through irrecoverable GPA which is registered.
9. In reply to para 6 of the plaint it is contended that the para no. 6 as matter of record with further contention that the entire documents of the suit property has been stolen by maternal uncle of Shri Ram Sharma along with Jewellery of the defendant no. 1 from the house of defendant no. 1 and to this effect a complaint to the PS Mayur Vihar has been lodged on 28.12.2005 as such defendants were not in position to produce the documents to the police officer lastly dismissal of the plaint has been prayed on the ground that no cause of action arose in favour of the plaintiff.
10. Replication filed and on 14.12.11 after completion of pleadings following issues were framed which are as under :
1. Whether the plaintiffs are the owners of the suit property? OPP
2. Whether the plaintiffs are entitled to recover possession of the suit property? OPP
3. Whether the plaintiffs are entitled to mesne profit and damages? If yes, at what rate and for what period? OPP
4. Relief.
11. In support of the case the plaintiff has examined himself by way of affidavit which is Ex. PW1/A as PW1, Sh. Jitender Kumar, LDC, subregistrar, Geeta Colony as PW2, Ct. Manoj Kumar as PW3 in respect to the proving of document Ex. PW3/1 i.e., DD entry no. 38 B dated 25.11.2005 and HC Dinesh as PW4 for proving complaint dated 16.02.2006 Ex. PW1/10 and Smt. Virwati by way of affidavit Ex. PW5/A Civil Suit no. 641/07 Page NO. 5 / 15 as PW5 and close the evidence on 07.09.12.
12. Defendant in support of the case examined Shabana Begum by way of affidavit Ex. DW1/A as DW1, Rafiq Ahmed as DW2 and close his evidence on 05.02.2013.
13. Prior to proceed further it is not out of the mentioned to place here that during the pendency defendant no.1 has expired, accordingly Smt. Kalawati the grand mother of the deceased defendant no. 1 has been impleaded as LR of deceased defendant no.1 on 02.07.2011. On application Shabana Begum has also been impleaded as one of the defendant i.e., defendant no. 3 while allowing the application u/o 1 rule 10 CPC on 21.02.2008 and her written statement taken on record on 24.09.11.
14. It is well settled law by the Hon'ble Supreme Court of India in case titled Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Ors. AIR 2008 SC 2033, wherein it has been held that "where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without 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 there is merely an interference that plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter".
15. Further, in the case Sh. Ramesh Chand Vs. Suresh Chand Civil Suit no. 641/07 Page NO. 6 / 15 & Anr. 188(2012) DLT 538, the Hon'ble High Court of Delhi has observed in para 2 of the judgment that "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, 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"
16. It was further observed by the Hon'ble High Court of Delhi that the object of giving valid to a power of attorney given for consideration even after the death of the executant is the ensure that entitlement not as the power of attorney remains because the same is not regular or a original power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of executant of power of attorney.
Civil Suit no. 641/07 Page NO. 7 / 15
17. And held in para 6 of the judgment that "the respondent no. 1 / plaintiff appeared in the witness box and proved the documents dated 16051996 being the agreement to sell (Ex.PW1/2), General Power of Attorney (Ex.PW1/6), Affidavit (Ex.PW1/3), Receipt for Rs. 1,40,000/ (Ex.PW1/4) and Will (Ex.PW1/5). The respondent no. 1 / plaintiff also got support of their stand from the depositions of the attesting witnesses to the documents namely Sh. Munir Ahmed who was examined as PW3 and Sh. Shri Ram was examined as PW4. Brother of the parties Sh. Ram Swaroop, deposed in favour of the respondent no. 1 / plaintiff as PW2" and in respect to the will in my opinion, the judgement of the Supreme Court in the case of Kashibai & Anr. (supra), and various other judgements which deal with the issue of requirement of a Will having to be proved by summoning of an attesting witness, are judgements given in those cases where there are inter se disputes between the legal heirs of a deceased testator and the validity of the Will is questioned in those circumstances. Observations in the said judgments cannot have application to the facts of those cases where the disputes with regard to Will are not classical disputes between the legal heirs of the deceased testator and the Will is an instrument which really furthered an intent to transfer the rights in an immovable property by the testator to the beneficiary. I may note that in the present case, there is absolutely no cross examination at all on behalf of the Civil Suit no. 641/07 Page NO. 8 / 15 appellant when the registered Will was proved and exhibited in the statement of the respondent no. 1 / plaintiff as PW1. Once there is no cross examination, in the cases such as the present, which are different than the classical disputes inter se the legal heirs of a deceased testator, I would feel that the Will should be held to be a proved document in as much as the object of the Will in cases such as the present was really to transfer rights in an immovable property after the death of the testator. Further, I may note that the observations with respect to Will having to be very strictly proved by calling the attesting witness are in probate cases where the judgment is a judgment in rem whereas in the present case the judgment on the basis of ownership rights devolving upon the respondent no. 1/ plaintiff under a Will not be a judgment in rem but only a judgment inter se the parties.
18. Further, in case titled Shri Man Mohan Batra Vs. Shri Bharat Bhushan Batra & Ors. Passed by Hon'ble High Court of Delhi in RFA No. 865/03 passed on 8th May, 2012 that "A civil case is decided on balance of probabilities. In civil case, after evidence led by the parties the court put the same in a melting pot as as to decide the final picture which has to emerge therefrom".
19. Now, turning to the facts and evidence of the present case.
20. In the present case, plaintiff examined himself as PW1 by way of affidavit Ex. PW1/A wherein he reproduced all the contents of the Civil Suit no. 641/07 Page NO. 9 / 15 plaint and exhibited the documents i.e., site plan as Ex. PW1/1, registered power of attorney favour of his wife as Ex.PW1/2, affidavit as Ex.PW1/3, agreement to sell as Ex.PW1/4, the receipt of consideration as Ex.PW1/5, letter of possession as Ex.PW1/6, Will Ex. PW1/7, GPA and Will having been executed by Smt. Asha Sharma in favour of his brother Sh. Ram as Ex.PW1/8 (colly), death certificate of his wife Bimla Devi as Ex.PW1/9, complaint dated 15.02.2006 as Ex.PW1/10. During the cross examination he admitted that he is not present before the office of sub registrar and that he could not see the witness to the documents i.e., Agreement to sell, GPA, Will, either signing and putting thumb impression except the document Ex. PW1/2.
21. PW 2 did not bring on record i.e., GPA of Smt. Asha Sharma in favour of Shri Ram and Will dated 17.04.03 as it pertains to other sub registrar, however, deposed that the GPA dated 26.12.2005 has been registered in his office Ex. PW1/2 and PW4 proved the complaint dated 15.02.2006 Ex. PW1/10 and Smt. Virwati one of the attesting witness has been examined who has proved the signature on the documents Ex.PW1/2, PW1/4, PW1/5, PW1/6 and PW1/7 and remained firm on the point that she was the attesting witness to the documents captioned above.
22. On the other hand, Defendant no.3 examined by way of affidavit Ex.DW1/A as DW1 and she also reproduced contents of the WS and defendant no. 2 also examined by way of affidavit Ex. DW2/A as Civil Suit no. 641/07 Page NO. 10 / 15 DW2 and reproduced all the contents of his WS.
Issue wise findings:
Issue No. 1 :
23. The onus to discharge this issue has been casted upon the plaintiff and to discharge this onus the plaintiff examined himself by way of affidavit Ex. PW1/A as PW1 and deposed that the plaintiffs are the owners being the LRs of deceased Bimla Devi as she has expired on 22.01.2006 who has purchased the property from Shri Ram on 26.12.2005. Since, in the present case the plaintiff claiming his ownership on the basis of GPA and Will dated 17.04.03 having been alleged to be executed by Asha Sharma in favour of Shri Ram thereafter Shri Ram further executed the title documents i.e., GPA, Agreement to sell, affidavit in favour of wife of the PW1(in favour of the plaintiff on 26.12.2005) whereas DW1 specific deposed that after the death of Asha Sharma on 30.05.05 the property in question passed or trespassed in favour of Sanjay Sharma being the son of Asha Sharma as such he became the sole owner but nothing has been placed on record which can establish that Asha Sharma has expired on 30.05.05 and failed to prove and even to file any complaint that Will in favour of defendant no.1 has been lost.
24. The Hon'ble High Court of Delhi in the judgment captioned above i.e., Sh. Ramesh Chand Vs. Suresh Chand & Anr. (supra), "on the basis of GPA, Agreement to sell, Will the right can be said to be existed in movable property pursuance to the property of section 53 A of Civil Suit no. 641/07 Page NO. 11 / 15 transfer of Property Act, 1882, section 202 of contract Act and also take place devaluation of the interest after the death of testator in terms of Will. But in the present case plaintiff has failed to establish the possession over the property in question, death of Shri Ram as the Will can only be given effect after the death of testator as well as factum of death of Smt. Asha Sharma has not been proved by the defendant.
25. Further more, the Hon'ble High Court of Delhi in case 188 (2012) Delhi Law Times 525 further held in para no. 11 that :
"11. No doubt, documents such as Agreement to Sell, Power of Attorney, Will etc. do not strictly confer ownership rights as a sale deed, however, such documents create certain rights in an immovable property, though which are strictly not ownership rights but definitely the same can be constructed as entitling the persons who have such documents to claim possession of the suit property in as much as at least the right to the suit property would stand transferred to the person in whose favour such documents have been executed. The Supreme Court in the recent judgment of Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Anr., 183 (2011) DLT 1 (SC), has reiterated the rights created by virtue of Section 53A of Transfer of Property Act, 1882 and Section 202 of the Contract Act, 1872 in paras 12, 13 and 16 of the said judgment".
26. Since, plaintiff has failed to prove the possession over the property in question has taken at any point of time so that she/he can be fallen within the purview of section 53 A of Transfer of Property Act and further failed to prove the document Ex. PW1/8 so that he can take benefit u/s 202 of the Contract Act.
Civil Suit no. 641/07 Page NO. 12 / 15
27. After taking into consideration facts and circumstances and after passing the judgment by Hon'ble Supreme Court in case titled Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Anr. 2011 X AD (SC) 365, the transaction of the nature of GPA as well as Agreement to sell/ Will transfer do not convey title or do not amount transfer nor can be recognized as mode of valid transfer of immovable property, however, limited right as per subsequent in the case of Hon'ble High Court of Delhi 188 (2012) DLT 525 in para no. 2 above cleared, so since possession over the property in question admittedly with, hence, this issue is decided against the plaintiff and in favour of the defendant.
Issue No. 2 and 3:
28. Since, both issue are interconnected, hence, taken together.
The onus to discharge these issue has been casted upon the plaintiff.
29. In the present case though in examinationinchief PW1 stated that after the execution of documents Ex. PW1/2 to 7 and in para no. 3 specific deposed that Late Asha Sharma registered agreement to sell, GPA, Will in favour of her brother Shri Ram on 17.04.2003 and also delivered the vacant and physical possession which is collectively Ex. PW1/8 but failed to prove the possession which can be done by calling witness or examining Shri Ram being the beneficiary or any other attesting witness to the document Ex. PW1/8 so that it can be established that the possession at any point of time has been handed over by Smt. Asha Sharma to Shri Ram as per document Ex. PW1/8 and subsequently to the Civil Suit no. 641/07 Page NO. 13 / 15 wife of the plaintiff through documents Ex.PW1/2 to 7. Moreover, it has also not clarified whether Shri Ram alive or not so that the Will can said to be operated and the GPA Ex. PW1/2 can be considered being given for a commercial transaction.
30. On the other hand, there is specific averment made in the WS in para no.4 that the wife of the plaintiff was not having possession of the suit premises and similarly deposed by DW1 in para no. 4 that the plaintiff has never in possession even after 17.04.2003, however, this testimony cannot be taken into consideration as DW1 has been impleaded on defendant on 21.02.2008 and defendant no.1 has expired. On the other hand, there is deposition on behalf of the plaintiff that when he visited the property in question on 15.02.2006 the plaintiff came to know that deceased defendant no.1 has illegally trespassed after breaking open the locks but it cannot be denied that the defendant no.2 and 3 are not in possession on the basis of documents i.e, electricity bill Ex. DW1/3, Water bill Ex. DW1/4, Voter I.Cards Ex. DW1/5 and DW1/6, the original letter of DDA to Smt. Asha Sharma Ex. DW1/7 and rent agreement Ex. DW1/8.
31. Here it is not out of the mentioned to place here that the claim of the defendant is that he has purchased the property from deceased Sanjay Sharma defendant no. 1 through GPA dated 25.01.2006 Ex. DW1/1 which confirmed that the defendant no. 2 are in possession and merely proving the contents of the documents Ex. PW1/10 cannot be Civil Suit no. 641/07 Page NO. 14 / 15 said that the plaintiff has ever in possession in the property in question especially when no action has been taken against the defendant after illegal dispossession and trespassing from the property in question by the defendant. Moreover, after filing WS by defendant no.1 and 2 on 15.05.06 there is specific averment made that defendant no.1 has sold the property to the defendant no.3 on 25.01.2006 despite that suit has not been amended for the relief of declaration which now sought to be amended to claim of relief would in the peculiar facts of this case be hopelessly barred by the limitation as once is cleared from 25.01.2006 or 15.05.2006, the period of 3 years expired on 24.01.09 or 14.05.09 respectively, hence, both these issues are decided in favour of the defendant and against the plaintiff.
Relief :
32. In view of the findings given on the issues, the present suit of the plaintiff is liable to be dismissed, hence, suit of the plaintiff is dismissed. Parties are to bear their own cost. Decree sheet be prepared. Original documents, if any, on record be returned to the concerned person against receipt after obtaining the certified copies. Thereafter, File be consigned to Record Room.
Announced in the open (RAKESH KUMARIII)
Court on 28.09.2013 JSCC/ASCJ/GJ (Shahdara)
(Judgment contains 15 pages.) Karkardooma Courts,Delhi.
Civil Suit no. 641/07 Page NO. 15 / 15