Delhi District Court
Lal Babu Shah vs Shiv Shankar Soni on 21 September, 2024
IN THE COURT OF SH. AJEET NARAYAN: CIVIL JUDGE -02
(CENTRAL), TIS HAZARI COURTS, DELHI.
CS No. 216/18
In the matter of: -
Sh. Lal Babu Shah,
S/o Shri Ram Lakhan Shah,
R/o Khasra No.29/16/2, Gali No. 9,
Surender Colony Part-II,
Jharoda Mazra, Burari, Delhi-110084. .... Plaintiff
VERSUS
Sh. Shiv Shankar Soni
S/o Late Govind Singh
R/o H. No. 170, Gali No. 8, Khasra No. 36/4,
Ramesh Tyagi Colony,
Village Jharoda Mazra (Near Bengali Mandir),
Burari, Delhi-110084. .... Defendant
Date of Institution: 21.12.2017
Date of reserving the judgment: 31.08.2024.
Date of Judgment: 21.09.2024
Final Judgment: Suit Dismissed.
JUDGMENT
(Suit for Possession, Recovery of Rent, Mesne Profit and Permanent Injunction)
1. The present suit has been filed by the plaintiff, Sh. Lal Babu Shah, against the defendant Sh. Shiv Shankar Soni, seeking recovery of CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 1 of 23 possession of suit property, along with recovery of arrears of rent from July 2015 to December 2017 amounting to Rs. 2,50,000/-, decree of damages/mesne profit @ Rs. 10,000/- PM and seeking decree of permanent injunction.
PLAINTIFF'S VERSION
2. The present suit is being filed by the plaintiff for the decree and judgment in favour of the plaintiff and against the defendant thereby directing the defendant to handover the peaceful and vacant possession of the property bearing No. H. No. 170, Gali No. 8, Khasra No. 36/4, Area 28 sq. yards, Ramesh Tyagi Colony, Village Jharoda Mazra, Burari, Delhi- 110084 (hereinafter suit property) and also the arrears of rent w.e.f. July, 2015 @ of Rs. 7500/- p.m. It is further submitted that the plaintiff is the legal and absolute owner of the suit property more specifically shown in red colour in the site plan.
2.1 It is further submitted that on 09.12.2014, the plaintiff had purchased the aforesaid property from the defendant through a chain of documents, which are attested and registered by the Notary Public and at the time of purchase, the defendant had also handed over the previous original titled documents/chain of aforesaid property to the plaintiff. It is further submitted that at the time of sale of the aforesaid property, the defendant requested the plaintiff for the grant of six months period for vacating the suit property as the defendant was in search of a new property CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 2 of 23 in the same area. Considering the genuine demand of the defendant, the plaintiff had allowed the defendant to use the suit property for six months as a tenant on the payment of Rs.7500/- as a monthly rent. It is further submitted that at the same time, the defendant agreed and promised the plaintiff to pay the amount of Rs.7500/- per month as monthly rent for residing in the suit property for a period of six months excluding electricity and water charges.
2.2 It is further submitted that for gaining the confidence of the plaintiff, the defendant had paid rent @ 7500/- p.m. to the plaintiff for the six months, though the said payments were made irregularly, but after the expiry of six months, the defendant has totally stopped paying the rent to the plaintiff and feeling aggrieved by the conduct of the defendant, the plaintiff restored a legal recourse and got issued a legal notice dated 26.12.2015 to the defendant thereby calling the defendant to pay the arrears of rent @ 7500/- p.m. and handing over the peaceful possession of the suit property till 15.01.2016. It is further submitted that after receiving the aforesaid legal notice, the defendant immediately approached the plaintiff and assured him that he will vacate the premises on or before July, 2016 and pay the arrears of rent and again on the request of the defendant, the plaintiff had extended the time for vacating the suit property and for payment of arrears of rent.
2.3 It is further submitted that finally the plaintiff again sent a legal notice to the defendant through his counsel on 29.03.2017 thereby calling the defendant to pay the arrears of rent @ 7500/- p.m. and handing CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 3 of 23 over the peaceful possession of the suit property till 15.04.2017. It is submitted that considering the aforesaid facts and circumstances, the staying and using the suit property by the defendant is illegal and unauthorized, which deserves to be removed with immediate effect along with payment of arrears of rent of Rs. 2,25,000/- for the period from 30 months @ 7500/- p.m. and also the payment of Rs. 10,000/- p.m. as mesne profit till its vacation.
2.4 It is further submitted that the defendant deliberately avoided the service of the legal notices despite the fact that he has been residing there only with his family. That in the second week of December, 2017, the plaintiff came to know from the local property dealers that the defendant is planning to dispose of the suit property with the help of photocopies of the title documents of the suit property.
2.5 With these averments, the plaintiff has filed the present suit against the defendant with the following prayers: -
a) Pass a decree of possession in favour of the plaintiff and against the defendant and its agents, associates, assignee, attorney, legal heirs etc. thereby directing them to handover the vacant and peaceful possession of the Suit Property i.e. H. No. 170, Gali No. 8, Khasra No. 36/4, Area 28 sq. yards, Ramesh Tyagi Colony, Village Jharoda Mazra, Burari, Delhi-110084, which is more specifically shown in the site plan.
b) Pass a decree of permanent injunction in favour of the plaintiff CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 4 of 23 and against the defendant and its agents, associates, assignee, attorney, legal heirs etc. thereby restraining the defendant and his associates etc. not to sell, alienate, transfer, mortgage, sub-let, or dispose of the Suit Property i.e. H. No. 170, Gali No. 8, Khasra No. 36/4, Area 28 sq. yards, Ramesh Tyagi Colony, Village Jharoda Mazra, Burari, Delhi-110084, which is more specifically shown red in the site plan.
c) Pass a money decree for an amount of Rs. 2,50,000/- as monthly rent of Rs. 7500/- w.e.f. July, 2015 to December, 2017 in respect of the Suit Property i.e. H. No. 170, Gali No. 8, Khasra No. 36/4, Area 28 sq. yards, Ramesh Tyagi Colony, Village Jharoda Mazra, Burari, Delhi-
110084, which is more specifically shown red in the site plan.
d) To direct the defendant to pay mesne profit of Rs. 10,000/- to the plaintiff for using the suit property with immediate effect till the vacation of the Suit Property.
DEFENDANT'S VERSION
3. Summons of the suit for settlement of issues were issued and served upon the defendant, in pursuance of which, the defendant filed the written statement by taking preliminary objections that the plaintiff has no locus standi to file and institute the present suit as the plaintiff is neither the owner nor the landlord of the suit property. That the plaintiff has got no right, title or interest over the suit property in any manner and as such the suit filed by the plaintiff deserves to be dismissed. It is submitted that value CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 5 of 23 of the suit property is more than Rs. 20 lakhs and suit has not been valued correctly for the purposes of court fees and jurisdiction.
3.1 It is further submitted that there exists no relationship of landlord and tenant between the parties, therefore, the suit being not maintainable in law and facts, is liable to be dismissed. That the suit of the plaintiff is without any cause of action and is barred U/o 7 Rule 11 CPC. Rest of the contentions are denied by the defendant. It is further submitted that defendant is the owner of the suit property and is in the use, occupation and possession of the suit property being its lawful owner and the fact of ownership of defendant has been admitted by the plaintiff in the plaint.
3.2 It is submitted that defendant was in the need of Rs. 60,000/- in December 2014, so he approached one Mr. Ramnath who is a local moneylender and who had assured to arrange loan for the defendant with interest @ 4 percent on the security of the property documents. Thereafter, Ram Nath collected the original property documents of the defendant along with the photographs and ID proof for the creation of loan documents and on 09-12-2014, instructed the defendant and his daughter to accompany him to the house of plaintiff, where signatures of defendant and his daughter was taken on loan documents. Thereafter, he was handed over Rs. 56,400/- after deduction of interest for the month of December 2014 and commission of 2 percent. Further a notice dated 26-02-2015 was received by the defendant which was based on concocted story and hence defendant lodged a police complaint dated 28-03-2016 regarding the same. It is CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 6 of 23 further submitted that defendant has paid a sum of Rs. 64,800/- till March 2017. Therefore, it is the case of defendant that he has neither sold the property to the plaintiff nor the defendant is residing in the suit property as tenant and he is residing continuously in the suit property being its owner. Prayer is made accordingly, to dismiss the suit of the plaintiff with exemplary costs.
4. In the replication, the plaintiff has denied all the averments made in the written statement and reiterated those made in the plaint.
5. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 04.07.2019: -
i) Whether the plaintiff is entitled for a decree of possession of the suit property, as prayed for? OPP.
ii) Whether the plaintiff is entitled for a decree of permanent injunction in his favour and against the defendant in respect of the suit property, as prayed for? OPP.
iii) Whether the plaintiff is entitled for a decree of Rs. 2,50,000/-
as arrears of rent w.e.f. July, 2015 to December, 2017 in respect of the suit property, as prayed for? OPP.
iv) Whether the plaintiff is entitled to recover mesne profit from the defendant? If yes, at what rate and for which period? OPP.
CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 7 of 23v) Relief. PLAINTIFF'S EVIDENCE
6. In support of his case, the plaintiff got examined himself as PW-1 by tendering his evidence by way of affidavit Ex.PW1/A. He relied upon the following documents: -
i) Ex. PW1/1 is the site plan of the suit property.
ii) Ex.PW1/2 (Colly. 13 pages) is the copy of the title
documents of the suit property executed by the defendant in favour of the plaintiff.
iii) Ex.PW1/3 (Colly.) is the copy of the Legal Notice dated 29.03.2017 along with the receipt of the Speed Post dated 30.03.2017.
iv) Mark 'A' is the photocopy of the Legal Notice dated 26.12.2015.
PW-1 was cross-examined at length by Ld. Counsel for the defendant.
7. PW-2 is Sh. Ram Nath, who tendered his evidence by way of affidavit Ex.PW2/A. PW-2 was cross-examined at length by Ld. Counsel for the defendant.
Thereafter, vide order dated 23.01.2023, P.E. was closed.
CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 8 of 23DEFENDANT'S EVIDENCE
8. On the other hand, the defendant examined himself as DW-1 by tendering his affidavit of evidence Ex.DW1/A. He relied upon the following documents: -
i) Ex.DW1/1 is the copy of the application dated 11.09.2013 filed before the Electricity Department, which is now de-exhibited and marked as Mark 'A'.
ii) Ex.DW1/2 is the copy of the application dated 12.09.2013 filed before the Electricity Department, which is now de-exhibited and marked as Mark 'B'.
iii) Ex.DW1/3 is the copy of the complaint dated 25.11.2014 filed before the Electricity Department, which is now de-exhibited and marked as Mark 'C'.
iv) Ex.DW1/4 is the copy of the Meter Installation Service Order Form, vide Service Order No. 212013360, which is now de-exhibited and marked as Mark 'D'.
v) Ex.DW1/5 is the copy of the Meter Installation Service Order Form, vide Service Order No. 212020474, which is now de-exhibited and marked as Mark 'E'.
vi) Ex.DW1/6 is the copy of the complaint made to SHO P.S. Burari, Delhi, which is now de-exhibited and marked as Mark 'F'.
vii) Ex.DW1/7 is the copy of the case title "Lal Babu Shah Vs. Smt. Deepmala, which is now de-exhibited and marked as Mark 'G'.CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 9 of 23
viii) Ex.DW1/8 is the copy of the case title "Lal Babu Shah Vs. Smt. Deepmala, which is not on record.
ix) Ex.DW1/9 is the copy of the case title "Lal Babu Shah Vs. Sh. Rahul Kumar", which is now de-exhibited and marked as Mark 'H'.
x) Ex.DW1/10 is the copy of the case title "Lal Babu Shah Vs. Smt. Sanno Devi, which is now de-exhibited and marked as Mark 'I'.
DW-1 was cross-examined at length by Ld. Counsel for the plaintiff.
9. DW-2 is Ms. Renu Gusain, JA/Ahlmad in the court of Sh. Umang Joshi, Ld. Civil Judge-04, Central, THC, Delhi, who deposed that she is a summoned witness and brought the summoned record i.e. the case file of the case titled as "Lal Babu Shah Vs. Sanno Devi" bearing CS SCJ No. 1425/2017, date of decision 27.10.2018. The copy of the first page of the plaint is already on record and is marked as Mark I on 29.04.2023 and the same was exhibited as Ex.DW2/1 (OSR). (Objected to by Ld. Counsel for the plaintiff that the relevant document is not the part of the pleadings).
No opportunity was given for the cross-examination of the witness in view of Section 139 of Indian Evidence Act.
10. DW-3 is Sh. Dinesh Kumar JJA, Record Room (Civil), THC, Delhi (Emp. Code: 51348091), who deposed that he is a summoned witness and brought the summoned record i.e. the case file of the case titled as "Lal Babu Shah Vs. Rahul Kumar" bearing CS SCJ No. 1576/2017, date of decision 24.05.2018. The copy of the plaint is already on record and is CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 10 of 23 marked as Mark 'H' on 29.04.2023 and the same was exhibited as Ex.DW3/1 (Colly.7 pages) (OSR). (Objected to by Ld. Counsel for the plaintiff that the relevant document is not the part of the pleadings).
No opportunity was given for the cross-examination of the witness in view of Section 139 of Indian Evidence Act.
11. DW-4 is Sh. Anil Kumar Verma, JA/Ahlmad in the court of Ms. Payal Singhal, Ld. Civil Judge-08, Central, THC, Delhi, who deposed that he is a summoned witness and brought the summoned record i.e. the case file of the case titled as "Lal Babu Shah Vs. Deep Mala" bearing CS SCJ No. 603016/2016 which is still pending trial. The copy of the plaint along with interim application filed by the plaintiff U/o 39 Rule 1 & 2 r/w Sec. 151 CPC and the affidavit were exhibited as Ex.DW4/1 (Colly. 10 pages) (OSR). (Objected to by Ld. Counsel for the plaintiff that the relevant document is not the part of the pleadings).
No opportunity was given for the cross-examination of the witness in view of Section 139 of Indian Evidence Act.
12. DW-5 is Mrs. Deepmala, W/o Sh. Dilip Gupta, aged about 34 years R/o H. No. 34, Gali No. 29, A-1 Block, Bangali Colony, Sant Nagar, Burari, Delhi-110084, who tendered her evidence by way of affidavit Ex. DW5/A. DW-5 was cross-examined at length by Ld. Counsel for the plaintiff.
Thereafter, Ld. LAC for the defendant closed D.E. on 05.08.2024.
CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 11 of 23FINDINGS
13. I have heard the arguments advanced by Ld. Counsel for the parties and carefully perused the record. My issue-wise findings are as under: -
Issue Nos. 1, 2, 3 and 4 shall be taken together and decided at the same time as they are inter-connected and same appreciation of evidence is required to decide these issues:
i) Whether the plaintiff is entitled for a decree of possession of the suit property, as prayed for? OPP.
ii) Whether the plaintiff is entitled for a decree of permanent injunction in his favour and against the defendant in respect of the suit property, as prayed for? OPP.
iii) Whether the plaintiff is entitled for a decree of Rs. 2,50,000/-
as arrears of rent w.e.f. July, 2015 to December, 2017 in respect of the suit property, as prayed for? OPP.
iv) Whether the plaintiff is entitled to recover mesne profit from the defendant? If yes, at what rate and for which period? OPP.
14. The burden of proving these issues is on the plaintiff. The present suit is filed by the plaintiff seeking recovery of possession of suit property, along with recovery of arrears of rent and damages/mesne profit CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 12 of 23 and relief of permanent injunction against defendant submitting that the plaintiff had purchased the suit property from the defendant through GPA, Agreement to Sell, Affidavit, Possession Letter, Will, and Receipt all dated 09.12.2014 which are attested and notarized and unregistered, but defendant requested the plaintiff for the grant of time for vacating the suit property as he was in search of a new property in the same area. Thereafter, the plaintiff had allowed the defendant to use the suit property for six months as a tenant on the payment of Rs.7500/- as a monthly rent and defendant had paid rent @ 7500/- p.m. to the plaintiff for the six months, and after some time defendant stopped paying the rent to the plaintiff, so plaintiff issued a legal notice dated 26.12.2015 and 29.03.2017 thereby calling the defendant to pay the arrears of rent @ 7500/- p.m. and handing over the peaceful possession of the suit property.
Per Contra, it is the case of defendant that the plaintiff is neither the owner nor the landlord of the suit property and there is no relationship of landlord and tenant between the parties and defendant is the owner of the suit property and is in the use, occupation and possession of the suit property being its lawful owner. It is the case of defendant that he was in the need of Rs. 60,000/- in December 2014, so he approached one Mr. Ramnath who is a local moneylender and who had assured to arrange loan for the defendant with interest @ 4 percent, on the security of the property documents, thereafter, Ram Nath collected the original property documents of the defendant along with the photographs and ID proof for the creation of loan documents and on 09-12-2014, signatures of defendant and his daughter was taken on loan documents. Thereafter, defendant was CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 13 of 23 handed over Rs. 56,400/- after deduction of interest for the month of December 2014 and commission of 2 percent which he has also returned back with interest till March 2017. Defendant had also lodged a police complaint dated 28-03-2016 regarding the same.
15. Since, in this case defendant is not admitting landlord-tenant relationship between parties and plaintiff is claiming his title from defendant only, therefore, in the present case, the plaintiff is seeking decree of possession on the basis of title of the suit property and the consequential relief of injunction, arrears of rent, relief of damages/mesne profit are also based on the relief of possession. The plaintiff is claiming that he has become the owner of the suit property on the basis of documents, i.e., GPA, Agreement to Sell etc. dated 09-12-2014. Now, it is to be seen that whether the title in the suit property has passed from the defendant to plaintiff and it is to be seen whether the sale/transfer by way of agreement to sell, etc., dated 09-12-2014 is valid or not.
It is not res-integra that the title in the property cannot be transferred by way of Agreement to Sell. As per Sec. 54 of Transfer of Property Act (TPA), a contract of sale i.e. an agreement to Sell does not of itself, create any interest in or charge on such property and a transfer of immovable property by way of sale can only be by a Deed of Conveyance (Sale Deed). In the absence of a Sale Deed, duly stamped and registered as required by law, no right, title or interest in an immovable property can be transferred. Hon'ble Apex Court in Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana (2012) 1 SCC 656, in considering the scope of an CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 14 of 23 agreement to sell has observed that:
"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.
19. 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 T.P. 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 T.P. Act). According to the T.P. Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the T.P. 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."
Hon'ble Supreme Court of India has reiterated the above said law in G.T. Girish v. Y. Subba Raju, (2022) 12 SCC 321 , and Ghanshyam Sarda v. J.K. Jute Mills Co. Ltd. (2017) 1 SCC 599, and recently restated in Munishamappa v M.Rama Reddy & Ors, 2023 SCC OnLine SC 640.
Hence, as per Suraj Lamps Judgment (Supra), only in the case of law of part performance as provided in Section 53-A of TP Act, the party claiming rights and protection of possession on the basis of agreement to CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 15 of 23 sell can be considered subject to conditions mentioned therein. Hence, by the combined reading of the provisions, it is clear that as per Sec. 53-A of TPA, i.e., the doctrine of part performance that the possession of a party (defendants herein) is protected in case any person contracts to transfer for consideration, any immovable property by writing signed by him and the transferee has in part performance of the contract has taken possession of the property, then despite the fact that the sale deed has not been executed, the possession of transferee has to be protected.
But the only condition which is required to be fulfilled in this case is that the Agreement to Sell should be registered. By the amendment of 2001 in TPA, the words "the Contract though required to be registered, has not been registered or" have been omitted from the provision. The effect of the amendment is that now if any person takes possession in pursuance to a contract which is required to be registered but has not been registered, the transferee has no right to remain in possession of the property. In the present case, since the suit has been filed by the plaintiff on the basis of agreement to sell etc., dated 09-12-2014, but as per plaintiff physical possession has not been transferred to plaintiff, also agreement to sell is not registered, therefore plaintiff cannot take benefit of Section 53-A of the TPA. Also, doctrine of part performance cannot be invoked to file suit, only possession can be protected on the basis of part performance. Therefore, title cannot be said to be validly passed to plaintiff from defendant through the unregistered agreement to sell.
In the present case, the plaintiff is claiming that by virtue of a special law, The National Capital Territory of Delhi (Recognition of CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 16 of 23 Property Rights of Residents in Unauthorized Colonies) Act, 2019, he has become owner of the suit property as the Act lays down special provisions for the NCT of Delhi, for recognizing the property rights of residents in unauthorized colonies by securing the right of ownership or transfer or mortgage in favour of residents of such colonies, who are possessing properties on the basis of Power of Attorney, Agreement to Sale, Will, Possession letter etc. It is argued at the stage of final arguments that the area in which suit property is situated, falls in the list of unauthorized colonies of Delhi.
Section 2 & 3 of The National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorized Colonies) Act, 2019, are as follows:
Section 2: Definitions:
In this Act, unless the context otherwise requires, --
(a) "resident" means a person having physical possession of property on the basis of a registered sale deed or latest Power of Attorney, Agreement to Sale, Will, possession letter and other documents including documents evidencing payment of consideration in respect of a property in unauthorized colonies and includes their legal heirs but does not include tenant, licensee or permissive user;
(b) "unauthorized colony" means a colony or development comprising of a contiguous area, where no permission has been obtained for approval of layout plan or building plans and has been identified for regularization of such colony in pursuance to the notification number S.O. 683(E), dated the 24th March, 2008 of the Delhi Development Authority, published in the Gazette of CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 17 of 23 India, Extraordinary, Part II, Section 3, Sub-section (ii), dated the 24th March, 2008.
Section 3: Recognition of property rights:
(1) Notwithstanding anything contained in the Indian Stamp Act, 1899 (2 of 1899) and the Registration Act, 1908 (16 of 1908) as applicable to the National Capital Territory of Delhi or any rules or regulations or bye-laws made there under and the judgment of the Supreme Court in the case of Suraj Lamp & Industries (P) Ltd. Vs. State of Haryana & others, dated the 11th October, 2011, the Central Government may, by notification in the Official Gazette, regularise the transactions of immovable properties based on the latest Power of Attorney, Agreement to Sale, Will, possession letter and other documents including documents evidencing payment of consideration for conferring or recognising right of ownership or transfer or mortgage in regard to an immovable property in favour of a resident of an unauthorised colony.
(2) The Central Government may, by notification published in the Official Gazette, fix charges on payment of which transactions of immovable properties based on the latest Power of Attorney, Agreement to Sale, Will, possession letter and other documents including documents evidencing payment of consideration for conferring or recognising right of ownership or transfer or mortgage in regard to an immovable property in favour of a resident of an unauthorised colony through a conveyance deed or authorisation slip, as the case may be.
(3) Notwithstanding anything contained in section 27 of the Indian Stamp Act, 1899 (2 of 1899), the stamp duty and registration charges shall be payable on the amount mentioned in the conveyance deed or authorisation slip, as the case may be.CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 18 of 23
(4) Any resident of an unauthorised colony having registered or un-registered or notarised Power of Attorney, Agreement to Sale, Will, possession letter and other documents including documents evidencing payment of consideration shall be eligible for right of ownership or transfer or mortgage through a conveyance deed or authorisation slip, as the case may be, on payment of charges referred to in sub-section (2).
(5) No stamp duty and registration charges shall be payable on any previous sale transactions made prior to any transaction referred to in sub-section (4).
(6) The tenants, licensees or permissive users shall not be considered for conferring or recognising any property rights under this Act.
Perusal of Section 2 & 3 of the Act shows that the although said Act does recognize the ownership rights in favour of a resident of an unauthorized colony, but nowhere the Act has provided that title automatically vests in the resident of unauthorized colony, in case immovable property is transferred through agreement of sell, GPA etc. Section 3 of the said Act is very clear that Central government may regularize the transactions of immovable properties based on agreement of sell, GPA etc., for conferring or recognizing the right of ownership, through a conveyance deed or authorization slip, on payment of fixed charges. Section 3(4) makes it further clear that resident having registered or unregistered agreement of sell, GPA etc., shall be eligible for right of ownership or transfer etc., through a conveyance deed or authorization slip on payment of charges. Therefore, in the present case, it is not the case of CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 19 of 23 the plaintiff that he has made the payment of charges and his transfer of immovable property has been regularized by the central government. Act of 2019 simply lays down the provisions that residents may apply for the recognizing the right of ownership through conveyance deed or authorization slip. The said Act only operates in the field where the GPA, Agreement to sell etc., is not challenged or disputed, but in the present case, there is controversy regarding the said transaction of suit property.
Further as per Section 2 (a), of the Act, "resident" means a person having physical possession of property on the basis of a registered sale deed or latest Power of Attorney, Agreement to Sale, Will, possession letter and other documents etc., on whom the said applies, but in the present case, the plaintiff is not in the physical possession of the suit property, so the said provisions are inapplicable to the plaintiff. Therefore, it can be said that The National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorized Colonies) Act, 2019 does not provide ownership rights automatically on the basis of GPA, Agreement to sell, etc., but simply it gives right to the parties to get the transaction regularized as per conditions mentioned therein. Therefore, the aforesaid Act of 2019 does not help the case of the plaintiff and it can be safely said that no title has passed to the plaintiff through the Agreement to Sell, GPA etc. 09.12.2014.
16. There are other contradictions and weakness in the version and case of the plaintiff. Also, it is the case of the plaintiff that after execution of Agreement to Sell and GPA etc., the defendant has requested the plaintiff to allow him to remain in possession in the suit property as a tenant for CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 20 of 23 some time and the plaintiff has inducted the defendant as tenant @ Rs.7500/- per month. But there is nothing on record to substantiate the same that a tenancy has been created between the parties as there is no Rent Agreement or any Rent receipt etc. on the record. PW-1 in his cross- examination has admitted that no Rent Agreement was executed between the plaintiff and defendant as it was oral tenancy. It is also the case of the plaintiff that the defendant has paid Rs.7500/- per month as rent for six months but there is no document on record to substantiate the payment of rent also. Plaintiff could have filed any proof of payment of rent by defendant or rent receipt if any, but the absence of said documents creates doubt on the story plaintiff and makes it improbable.
Plaintiff has examined himself as PW-1 and also has examined Sh. Ram Nath as PW-2, who has deposed that he is one of the attesting witnesses of the property documents dated 09.12.2014 executed between the plaintiff and the defendant. PW-2 in his cross-examination has stated that he is working in the office of the plaintiff on a salary of Rs.10,000/- per month and the plaintiff has purchased 5 to 7 properties after he joined the office of the plaintiff and all the properties were purchased in his presence. It shows that PW-2 is not an independent witness and he might be an interested witness and cannot be relied upon; even otherwise since the property documents i.e. Agreement to Sell and GPA etc. cannot give ownership right to the plaintiff, therefore, testimony of PW-2 is of no use to the plaintiff.
Since, plaintiff has failed to prove his case as onus to prove these issues was on plaintiff, there is no requirement to discuss the case of CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 21 of 23 defendant, but even if the evidence of defendant is examined, defendant has not filed original documents and all the documents are de-exhibited and marked. Coming to cross examination of DW-1 and DW-5, it is the consistent case of defendant that although signature on the agreement to sell, GPA etc., belongs to defendant and her daughter, DW-5, but the said documents were blank. Although, according to the testimony of DW-1 that there is no document on record to substantiate the contention that he has gone to plaintiff to get the loan of Rs. 60,000 as there is no loan document or receipt filed by the defendant. Also, there is no police complaint or communication to the plaintiff regarding the same. DW-2, DW-3 and DW-4 are the summoned witness who has brought similar suit filed by plaintiff against daughter of defendant and other persons to prove that plaintiff is in habit of filing the suit on similar grounds. But the said records are not relevant in the present suit.
Hence, in view of fact that defendant has taken the consistent stand that he has never sold the property to plaintiff, counsel of plaintiff has failed to elicit anything beneficial to plaintiff, from the cross examination of the DW-1 and DW-5. Also, it is settled principle of law that in respect of relief claimed by a plaintiff, he has to stand on his own legs by proving his case independently, and cannot be allowed to take advantage of weakness in case of adversary. Therefore, plaintiff can't take the benefit of weakness in case of defendant.
In view of the aforesaid discussion, the plaintiff has failed to discharge the onus that he has become owner or titled has vested in him through the property documents in this case and he is entitled to possession CS No. 216/18 Lal Babu Shah Vs. Shiv Shankar Soni Page 22 of 23 of the suit property. Since other reliefs like injunction, arrears of rent and damages are based on relief of possession and are consequential reliefs of possession, therefore, these reliefs also cannot be granted to the plaintiff.
In view of the above-mentioned discussion, therefore, issue Nos. 1, 2, 3 & 4 are decided against the plaintiff and in favour of the defendant.
RELIEF
17. In view of the discussions above, the present suit of the plaintiff is hereby dismissed.
No order as to cost.
Decree-sheet be prepared accordingly.
File be consigned to record room after due compliance.
Digitally signed by AJEET NARAYAN AJEET Date:
Announced in the open
NARAYAN 2024.09.23
( Ajeet Narayan )
17:18:12
Court today on 21.09.2024. Civil Judge -02 (Central), +0530 Tis Hazari Courts, Delhi.
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