Delhi District Court
Mohd Nasir And Ors vs Fazle Mubeen And Ors on 2 May, 2025
In the court of Shri Naresh Kumar Laka
District Judge - 07, Central District,
Tis Hazari Courts, New Delhi
CS DJ 934/21
CNR No. DLCT01-016188-2021
In the matter of:
1. Mohd. Nasir,
S/o Late Mohd. Rais,
2. Shadab Parvez,
S/o Late Mohd. Rais.
3. Bilquis Ara,
W/o Late Mohd. Rais
All above R/o 1488/1,
Pataudi House,
Darya Ganj, Delhi 110006
4. Tayyaba Naaz,
W/o. Mohd. Daanish
D/o. Mohd. Rais,
R/o H.No.5383, Kucha Rehman,
Chandni Chowk, Delhi 110006
....... Plaintiffs
vs.
1. Fazle Mubeen
S/o Late Haji Mohd. Mushtaq,
R/o House No.4005,
Gali Khan Khana,
Jama Masjid, Delhi 110006.
2. Delhi Urban Shelter Improvement Board,
Punarwas Bhawan, I.P. Estate, New Delhi 110002
CS DJ No. 934/21 Page no. 1 of 17
Mohd Nasir and Ors vs. Fazle Mubeen and Ors
3. North Municipal Corporation of Delhi,
Dr. SPM Civic Center, Minto Road,
New Delhi-110002
...... Defendants
Date of institution of suit : 26.11.2021
Final arguments concluded on : 23.04.2025
Date of decision : 02.05.2025
Result : Dismissed
Suit for possession and recovery of Rs. 4 lakh as damages/
mesne profit, permanent and mandatory injunction
JUDGMENT
The present suit has been filed on behalf of the plaintiffs for recovery of possession, injunction and other incidental reliefs. It is the case of the plaintiff that Late Mohd. Rais (father of the plaintiffs no.1, 2 & 4 and husband of plaintiff no.3) was the owner of the property bearing no. 4006, Gali Khan Khana, Jama Masjid, Delhi-110006 admeasuring about 45 sq. yds. being allotted by DUSIB (Defendant no.2) to him. It is claimed that at that time the construction consisted of ground floor only and Late Mohd. Rais constructed first and second floors. It is also claimed that Mohd. Rais expired in the year 2018 and the plaintiffs inherited all his rights in the said property.
2. It is alleged that in the year 2011, Mohd. Rais permitted defendant no.1 (who is his younger brother) to stay on first and second floors of the aforesaid property (hereinafter referred to as 'suit property') and in the year 2014, a power of attorney was also executed in favour of defendant no.1 to manage the said floors and the ground floor was retained by Mohd. Rais only. It is further claimed that the defendant no.1 had constructed two more CS DJ No. 934/21 Page no. 2 of 17 Mohd Nasir and Ors vs. Fazle Mubeen and Ors floors above the second floor which was objected by Mohd. Rais and plaintiffs repeatedly called upon defendant no.1 to vacate the said property and to handover its possession to the plaintiffs but the defendant no.1 did not do so nor paid any rent. It is alleged that the occupation of suit property by defendant no.1 after revocation of said license is unauthorized. Hence, plaintiffs had filed the present suit.
Defence of the defendants
3. Defendant no.1 contested the present suit by filing his written statement wherein it has been claimed that the present is not maintainable as the same had been filed by the plaintiffs as legal heirs of Late Sh. Mohd. Rais by claiming ownership right of Late Sh. Mohd. Rais whereas the property was allotted to him by DUSIB on license basis for self-residence only with father of defendant, namely, Mohd. Mustaq and at the time of allotment, Mohd Rais was the elder/major son of Late Mohd. Mustaq, therefore, it was allotted in his name. He further claimed that the property was constructed from the joint income of the family and defendant no.1 also invested Rs. 10 lakhs for construction of guest house of Mohd. Rais. It is also alleged that as per family settlement, it was agreed that Mohd. Rais will hand over possession of the entire suit property to the defendant no.1 because he was unable to return the invested amount of defendant no.1. In this regard, a GPA and Will were executed in favour of the defendant no.1 in the year 2011 and 2014. However, said Will was not provided to him despite several requests. He further alleged that after the demise of Mohd. Rais, when the defendant no.1 asked for giving him the said Will, the plaintiffs demanded for Rs. 5 lakhs and when the defendant no.1 refused to fulfill said illegal demand, the CS DJ No. 934/21 Page no. 3 of 17 Mohd Nasir and Ors vs. Fazle Mubeen and Ors present suit has been filed.
4. Defendant no.2 also filed its written statement wherein it is claimed that aforesaid property was allotted by Ministry of Rehabilitation, Govt. of India to Slum & J.J. Department of MCD and at present it is under the management of defendant no.2. It is admitted that the said property was later on allotted to Mohd. Rais on licence basis on 07.01.1971 for self residence only. It is also claimed that since the licencee had parted with it possession, the said licence came to an end being against the norms of licence allotment, therefore, no right, title and interest is vested upon the allottee. It is also claimed that the said license was not transferable and occupants are liable to pay charges/damages to the DUSIB and the defendant no.2 is within its right to take action as per DUSIB Act against the unauthorized occupant. It is also disclosed that notices dated 11.02.2022 have already been issued to the plaintiff as well as defendant no.1 by the defendant no.2.
5. Despite giving opportunity, no written statement has been filed on behalf of the defendant no.3.
Replication, issues and trial
6. The plaintiff filed replication to the WS wherein contents of the plaint were reiterated and the claim of the defendants were denied. From the pleadings of the parties, following issues were framed on 11.01.2024:
1. Whether the plaintiffs have not come to the court with clean hands and suppressed the material facts? OPD-1
2. Whether the plaintiffs are the owner of the suit property? OPP CS DJ No. 934/21 Page no. 4 of 17 Mohd Nasir and Ors vs. Fazle Mubeen and Ors
3. Whether the plaintiffs are entitled to a decree of possession against defendant no.1 in respect of first floor & second floor of property no.4006, Gali Khan Khana, Jama Masjid Delhi-110006? OPP
4. Whether the plaintiffs are entitled to a decree of damages/mesne profits against defendant no.1? If so, at what rate and for what period? OPP
5. Whether the plaintiffs are entitled to a decree of mandatory injunction against defendant no.1, 2 & 3 for demolition of third floor & fourth floor of the suit property? OPP
6. Whether the plaintiffs are entitled to a decree of permanent injunction as prayed for? OPP
7. In order to prove his case, the plaintiff no.1 examined himself as PW-1. Defendant no.1 also led evidence by examining himself (Sh. Fazle Mubeen) as DW-1 and one Sh. Khaleeq ur Rehman as DW-2. Defendant no.2 also led evidence and examined Sh. Chaman Lal Ranot as D2W1.
8. I have heard arguments at length from Sh. Ramesh Kumar, Ld. Counsel for plaintiff with plaintiff no.1 and 2; Mohd. Azharuddin, Ld. Counsel for the defendant no.1 and Sh. Vinay Rathi, Ld. Counsel for defendant no. 2. Record perused.
Reasons for decision Issue no. 1: Whether the plaintiffs have not come to the Court with clean hands and has suppressed the material facts? OPD-1
9. The defendant no.1 did not specify as to what material fact has been concealed by the plaintiff which goes to the root of the matter. The other CS DJ No. 934/21 Page no. 5 of 17 Mohd Nasir and Ors vs. Fazle Mubeen and Ors facts as alleged in the plaint gives a reasonable ground to file the present suit. As such, this is decided in favour of the plaintiffs and against the defendants.
Issue no. 2. Whether the plaintiffs are the owner of the suit property? OPP
10. It is the admitted case of the parties that the suit property was allotted to Mohd. Rais (who is the predecessor-in-interest and ascendant of the plaintiffs) by defendant no.2 (DUSIB). However, a dispute is raised with regard to nature of the said allotment whether it was in the sense of freehold ownership or a licence or any other kind of allotment which can create ownership right upon the allottee. The defendant no.1 also claimed allotment of said property jointly in the name of Mohd. Rias and father of the defendant no.1. He further claimed that he had acquired rights from Mod. Rais on the basis of execution of certain documents in consideration of some money transaction. At the same time, he also claimed that after termination of the licence of Mohd. Rais, he became the absolute owner of the said property.
11. In the considered opinion of this court, the main contest in the present suit is between the plaintiffs (being LRs of Mohd. Rias) and the defendant no.1. The defendant no.2 is not a necessary party to decide the said lis because no effective relief has been prayed against the defendant no.2 in the present suit. There is no relief of declaration sought by the plaintiffs against the defendant no.2. Moreover, the defendant no.2 has also not filed any counter claim for asserting their own right in the suit property or to seek cancellation of said allotment or for seeking possession of the suit property, etc. Therefore, the present suit is being decided between the plaintiffs and the defendant no.1 only on the basis of acquisition of any legal right in the suit property whether absolute, defective, immature or subservient right.
CS DJ No. 934/21 Page no. 6 of 17 Mohd Nasir and Ors vs. Fazle Mubeen and Ors Therefore, the plaintiffs cannot be said to be owner of the suit property against the defendant no.2. However, against the defendant no.1, it can be said that the plaintiffs stepped into the shoes of Mohd. Rias and if any right is created by Mohd. Rais in favour of defendant no.1, then his legal heirs are bound with the same. This issue is answered accordingly.
Issue no.3. Whether the plaintiffs are entitled to a decree of possession against defendant no.1 in respect of first floor & second floor of property no.4006, Gali Khan Khana, Jama Masjid Delhi-110006? OPP
12. The plaintiffs claimed that Mohd. Rais was brother of defendant no.1 and out of love and affection, the defendant no.1 was permitted to stay in the suit property by Mohd. Rais and when the said permission has been withdrawn by the plaintiffs, the defendant no.1 has no right to retain the possession of suit property.
13. On the other hand, the defendant no.1 claimed that a GPA and Will were executed by Mod Rais in his favour in consideration of Rs. 10 lakhs which he had given to Mohd. Rais for construction of a guest house by the latter and that the said documents were executed to create right in the property in favour of the defendant no.1 (excluding the ground floor).
14. From the perusal of the plaint, it is seen that even the plaintiffs admitted the execution of GPA 24.09.2014 (Ex. DW1/1) by Mod Rais in favour of Defendant no.1 but the plaintiffs claimed that there was no consideration amount even paid by or payable to the defendant no.1, therefore no interest was created at the time of execution of the said GPA and after the death of Mohd. Rais, the said GPA stands terminated. Although the defendant CS DJ No. 934/21 Page no. 7 of 17 Mohd Nasir and Ors vs. Fazle Mubeen and Ors no.1 claimed execution of a Will but no such Will has been produced on record nor any witness has been examined by the defendant no.1 to prove the existence of the said Will. Therefore, the rights of the rival parties are required to be decided on the basis of said GPA 24.09.2014 (Ex. DW1/1) only. The plaintiffs claimed that said GPA was executed as Mohd. Rais was not keeping well and defendant no.1, who was brother of Mohd Rais, was appointed as an attorney to look after and take care of the suit property.
15. From the aforesaid content of the said GPA dated 24.09.2014 (Ex. DW1/1), it is observed that the said GPA specifically finds mentioned various clauses which are in the nature of giving substantial right and interest of the suit property in favour of the defendant no. 1 by Mohd Rais. One of the clauses of the said GPA inter alia include a right to sell, mortgage, lease or transfer the aforesaid property or to execute any documents and deal with government agencies which includes the local authorities etc. In the said GPA, it is also mentioned that the defendant no.1 was in possession and control of the aforesaid property since October, 2011.
16. However, in the said GPA, there is no consideration amount mentioned but the defendant no.1 specifically claimed that he had given Rs. 10 Lakhs to Mohd. Rais for raising of construction of a guest house by Mohd. Rais and in lieu of said consideration amount, the said GPA was executed. The onus to prove the said issue was upon the defendant no.1 and in order to prove it, he examined himself and one independent witness, namely, Sh. Khaleeq ur Rehman (DW-2). DW-2 deposed in his affidavit in evidence as under:
"3. That late Mohd. Rais requested the defendant no. 1 to provide Rs. 10,00,000/- for the construction of his Guest House, which is named as CS DJ No. 934/21 Page no. 8 of 17 Mohd Nasir and Ors vs. Fazle Mubeen and Ors Adam Guest House Situated at 3843, Gali Hospital Wali, Near Jagat Cinema, Daryaganj, Delhi, later on when the defendant asked for returning of his money from the late Mohd. Rais, then it was decided between defendant no. 1 and late Mohd. Rais that late Mohd. Rais will hand over the possession of the property bearing no. 4006, Gali Khan Khana, Jama Masjid, Delhi-110006 because the amount handed over by defendant no. 1 was his savings to purchase the property for his family.
4. Thereafter late Mohd. Rais handed over the possession of the above- mentioned property to defendant no. 1 in the year 2011 and executed a General Power of Attorney in favour of defendant no. 1 in respect of the above-mentioned property in the year 2014 and also executed a will in favour of defendant no. 1 in respect of said property.
5. That after the demise of the late Mohd. Rais, defendant no. 1 asked for the will from the plaintiffs, which was executed by late mohd. Rais in favour of the defendant, upon which the plaintiff made an illegal demand of Rs. 5,00,000/- for providing the will to defendant no. 1. Hence the present false suit filed by the plaintiff against defendant no. 1 only to extort money from him."
17. From the cross-examination of the said witness, nothing contrary came on record to disbelieve his testimony. There are many other facts and evidence on record, direct as well as circumstantial which prove that the GPA dated 24.09.2014 (Ex. DW1/1) was not executed simplicitor by Mohd. Rais in favour of the defendant no.1 because he was unable to look after the said property and said facts are as under:
(1) At the time of execution of said GPA dated 24.09.2014 (Ex.
DW1/1) , detailed clauses were mentioned therein so as to show that substantive rights were sought to be given of the said property to defendant no.1 to deal with it (except ground floor); (2) At the time of execution of GPA, other family members of Mohd.
Rais (including plaintiffs) were available. This court also sought clarification from the parties about the attesting witnesses of the said GPA and it was informed that first attesting witness is Sadab CS DJ No. 934/21 Page no. 9 of 17 Mohd Nasir and Ors vs. Fazle Mubeen and Ors Parvez who is plaintiff no.2. This court asked about his age, to which he informed that he born in 1979, therefore, in the year 2014 when the said GPA was executed, he was 35 years of age but no satisfactory explanation came on record from the side of plaintiffs as to why Mohd. Rais had executed GPA dated 24.09.2014 (Ex. DW1/1) in favour of defendant no.1 only instead of his own family member including his own son, therefore, this fact shows a circumstance of presence of implied or express consideration; (3) The said GPA was executed on 24.09.2014 (Ex. DW1/1) and Mohd. Rais expired on 18.11.2018 and during his life time, he did not take any step to cancel the said GPA or to get vacated the said property from the defendant no.1;
(4) The legal heirs of Mohd. Rais also did not challenge the said GPA within the period of 03 years of its execution nor any relief of cancellation of said GPA has been sought in the present suit, which is now barred by the law of limitation;
(5) It also came on record that the suit property consisted of floors above second floor and the plaintiffs themselves alleged that the defendant no.1 had raised said construction without their consent. These facts indirectly prove that the defendant no.1 only spent amount for raising such construction.
(6) There are other documents like house tax payment, receipts of utility charges paid to the local authorities which are in the name of defendant no.1 which also prove that the defendant no.1 was exclusively using the said property;
(7) Even in the plaint, it has been mentioned that the defendant no.1 himself inducted various tenants and was receiving huge amount CS DJ No. 934/21 Page no. 10 of 17 Mohd Nasir and Ors vs. Fazle Mubeen and Ors of rent to the tune of Rs. 3,00,000 per annum. There is no assertion that defendant no.1 used to pay such amount to Mohd. Rais which shows that the defendant no.1 was given all exclusive power not only to deal with the government agencies but also to utilize the said property and to earn profits/rents of the tenants.
18. In the light of aforesaid evidence, this court holds that the said GPA was executed against consideration amount of Rs. 10 lakhs which was paid by the defendant no.1 to Mohd. Rais and also on account of the fact that the upper floors were constructed by the defendant no.1 from his joint family or exclusive fund.
19. An argument is frequently raised that after the judgment of the Hon'ble Supreme Court of India in the famous case of Suraj Lamp & Industries (P) Ltd. v. State of Haryana, (2012) 1 SCC 656, no ownership right in an immovable property can be recognized on the basis of GPA, agreement to sell or unregistered documents. To understand the substantive laws relating to said documents, the background of the said case and related judgments are enumerated in the subsequent paragraphs.
20. An SLP No.5804/2009 in the case of Suraj Lamp & Industries (P) v. State of Haryana & Anr was filed before Hon'ble Supreme Court of India. The facts of the said SLP were - 'A' claimed that 'B' had sold 2.5 acres of land in Gurgoan to 'A' by means of an Agreement of Sale, General Power of Attorney and a Will in the year 1991 for a consideration of Rs.716,695/-. Thereafter 'A' verbally agreed to sell a part of the said property to 'C' for Rs.60 lakhs in December 1996. But 'C', instead of proceeding with 'A', directly got in touch with 'B' in 1997 and got executed and registered a GPA CS DJ No. 934/21 Page no. 11 of 17 Mohd Nasir and Ors vs. Fazle Mubeen and Ors in favour of C for the entire 2.5 acres of land and also illegally got cancelled the earlier GPA in favour of 'A'. In the year 2001, 'A' lodged a criminal complaint against 'B' and 'C'. When no action was taken, 'A' filed an RTI application to the police agency but finding contradictory replies, 'A' approached CIC and High Court and being aggrieved, he filed the above SLP before the Hon'ble Apex Court. On 15.05.2009, Hon'ble Supreme Court observed that the matter involves an issue whose seriousness was underestimated and direction was given to the States of Punjab, Haryana, Delhi, Uttar Pradesh and Maharashtra to file a report about PoA-sale and the steps being taken or to be taken to deal with the chaotic situation and confusion arising from such transactions.
21. On 11.10.2011, in the aforesaid case, Hon'be Justices R.V. Raveendran, A.K. Patnaik and H.L. Gokhale, three Judges Bench of Hon'ble Apex Court passed, inter alia, the following order:
"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 the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable 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.
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 1-A 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. An attorney-holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title CS DJ No. 934/21 Page no. 12 of 17 Mohd Nasir and Ors vs. Fazle Mubeen and Ors on behalf of the grantor.
Therefore, an SA/GPA/will transaction does not convey any title nor creates any interest in an immovable property. The observations by the Delhi High Court in Asha M. Jain v. Canara Bank [(2001) 94 DLT 841] , that the "concept of power-of-attorney sales has been recognised as a mode of transaction" when dealing with transactions by way of SA/GPA/will are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/will transactions are some kind of a recognised or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognise or accept SA/GPA/will transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law."
22. After passing of the aforesaid judgment, a case, namely, Ramesh Chand v. Suresh Chand, came up for hearing before Hon'ble Apex Court and after hearing the matter, it was remanded back to the High Court of Delhi for giving a fresh decision in view of the observations as made in the case of Suraj Lamp case (supra).
23. On April 9, 2012, Hon'ble Justice Valmiki J. Mehta, High Court of Delhi decided the said case of Ramesh Chand v. Suresh1 and observed as under:
"2. Before I proceed to dispose of the appeal, and which would turn substantially on the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. (supra), it is necessary to reproduce certain paras of this judgment of the Supreme Court, which 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 1 RFA No.: 358/2000 decided on 09.04.2020, High Court of Delhi.
CS DJ No. 934/21 Page no. 13 of 17 Mohd Nasir and Ors vs. Fazle Mubeen and Ors interest or charge on its subject matter.
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.
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, 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.
4. There is also one other aspect which needs to be clarified before proceeding ahead and which is whether a power of attorney given for consideration would stand extinguished on the death of the executant of the power of attorney. The answer to this is contained in illustration given to Section 202 of the Contract Act, 1872, and the said provision with its illustration reads as under:
"Section 202. Termination of agency, where agent has an interest in subject matter.-- Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
Illustrations
(a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to CS DJ No. 934/21 Page no. 14 of 17 Mohd Nasir and Ors vs. Fazle Mubeen and Ors repay himself out of the price the amount of his own advances.
A cannot revoke this authority, nor is it terminated by his insanity or death."
The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney.
The summarization is that the documents which were executed by the father-Sh. Kundan Lal in favour of the respondent No. 1/plaintiff/son dated 16.5.1996 would not stricto sensu confer complete ownership rights, however, the said documents would create rights to the extent provided for by Section 202 of Contract Act, 1872 and ownership on account of devolution in terms of the Will after the death of the testator in terms of relevant provisions of Indian Succession Act, 1925. Of course, I hasten to add that so far as the facts of the present case are concerned, I am not giving the benefit of the doctrine of part performance under Section 53A of the Transfer of Property Act, 1882 to the respondent No. 1/plaintiff inasmuch as learned counsel for the appellant is correct in arguing that the benefit of the said doctrine cannot be given as the physical possession of the property was not transferred to the respondent No. 1/plaintiff by the father-Sh. Kundan Lal under the agreement to sell dated 16.5.1996.
7. Accordingly, even if we do not give the benefit of Section 53A of the Transfer of Property Act, 1882 to the respondent No. 1/plaintiff, the respondent No. 1/plaintiff however would be entitled to benefit of Section 202 of the Contract Act, 1872 and the fact that ownership had devolved upon him in terms of the Will executed by the father in his favour on 16.5.1996. The argument urged on behalf of the appellant by his counsel that power of attorney, Ex. PW 1/6 ceased to operate after the death of the father is an argument without any substance in view of the provision of Section 202 of the Contract Act, 1872 alongwith its illustration and which shows that power of attorney given for consideration operates even after the death of the executant.
12. In view of the aforesaid facts and the validity of the documents, being the power of attorney and the Will dated 16.5.1996, the respondent No. 1/plaintiff would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the appellant/defendant No. 1. In fact, I would go to the extent saying that by virtue of para 14 of the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) taken with the fact that Sh. Kundan Lal has already died, the respondent No. 1/plaintiff becomes an owner of CS DJ No. 934/21 Page no. 15 of 17 Mohd Nasir and Ors vs. Fazle Mubeen and Ors the property by virtue of the registered Will dated 16.5.1996. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof."
24. In the light of aforesaid position of law, which squarely applies to the present case also where GPA was executed by Mohd. Rais in favour of the defendant no.1 in lieu of consideration amount of Rs.10 lakhs or in lieu of family arrangement of share, etc. this court holds that the said GPA is not revocable nor it terminated on the death of its executor (Mohd. Rais). Therefore, although the defendant no.1 did not acquire absolute ownership right in the suit property yet he acquired possessory right by virtue of said GPA. Consequently this issue is decided against the plaintiffs and in favour of the defendant no.1.
Issue no.4 Whether the plaintiffs are entitled to a decree of damages/mesne profits against defendant no.1? If so, at what rate and for what period? OPP
25. In view of my findings on the Issue no.3, this issue is decided against the plaintiffs.
Issue No.5. Whether the plaintiffs are entitled to a decree of mandatory injunction against defendant no.1, 2 & 3 for demolition of third floor & fourth floor of the suit property? OPP
26. The plaintiffs claimed that the defendant no.1 unilaterally and without the consent of Mohd Rais and the plaintiffs raise construction of upper floor above first floor, therefore, said structure need to be demolished. The defendant no.1 claimed that the said structure was part of entire property and it was constructed from the joint fund or exclusive fund of defendant no.1 and it was all given to him by Mohd. Raise who already had other properties.
CS DJ No. 934/21 Page no. 16 of 17 Mohd Nasir and Ors vs. Fazle Mubeen and Ors It is a settled position of law that a person can tell a lie but not a document and documentary evidence is of more credence to the oral testimony. In the instant case, the GPA dated 24.09.2014 (Ex. DW1/1)specifically finds mentioned that the property consists of 04 floors. Therefore, this court holds that all the said floors forms part of the said GPA except the ground floor which was specifically excluded from the operation of the GPA by mentioning it therein. As such this issue is decided against the plaintiffs.
Issue no.6 Whether the plaintiffs are entitled to a decree of permanent injunction as prayed for? OPP
27. In view of my findings on the Issue no.3, this issue is decided against the plaintiffs.
Conclusion/Relief
28. In the light of my aforesaid findings, the suit of the plaintiffs is dismissed. In the circumstances of the case, the parties shall bear their own costs. Decree-sheet be prepared accordingly. However, this judgment is not applicable on the rights of defendant no.2 and if desired, it can take any action including renewal, cancellation, confirmation of licence or any other right in respect of suit property in favour of anyone as per their own procedure and established principles of law. File be consigned to record room.
NARESH
Announced & dictated in KUMAR
LAKA
the open court on 02.05.2025.
Digitally signed by
(Naresh Kumar
NARESH
LAKA
KUMAR Laka)
District Judge-07
Date: 2025.05.03
13:31:58 +0530
Central District/THC, Delhi.
CS DJ No. 934/21 Page no. 17 of 17
Mohd Nasir and Ors vs. Fazle Mubeen and Ors