Delhi District Court
Seema Pandey vs . Seema Devi & Ors. on 30 January, 2019
Seema Pandey Vs. Seema Devi & Ors.
RCA No. 83/18
IN THE COURT OF SHRI TARUN YOGESH
ADDL. DISTRICT JUDGE03: SOUTH WEST DISTRICT:
DWARKA COURTS:NEW DELHI
Regular Civil Appeal No. 83/18
In the matter of:
Smt. Seema Pandey
W/o Shri Pappu
R/o F156, First floor,
Gali No. 36, Sadh Nagar,
Palam, New Delhi110045
.....Appellant
Versus
(1) Smt. Seema Devi
S/o Late Shri Amit Kumar
R/o F156, Gali No.36,
Sadh Nagar, Palam,
New Delhi110045.
(2) Shri Karan
S/o Late Shri Amit Kumar
R/o F156, Gali No.36,
Sadh Nagar, Palam,
New Delhi110045
... Respondents
Date of Institution of Appeal : 04.10.2018
Date on which judgment was reserved : 30.01.2019
Date on which judgment was pronounced : 30.01.2019
APPEAL AGAINST JUDGMENT AND DECREE DATED 31.08.2018 PASSED BY Ms. NIYAY BINDU, SCJCUMRC, SOUTHWEST, DWARKA COURTS, NEW DELHI IN CIVIL SUIT NO. 27568/2016 TITLED SMT. SEEMA DEVI & ANR. VS. SMT. SEEMA PANDEY IN FAVOUR OF PLAINTIFFS.
Page 1 of 9 DOD: 30.01.2019Seema Pandey Vs. Seema Devi & Ors.
RCA No. 83/18:J U D G M E N T:
1. This appeal has been preferred by defendant Smt. Seema Pandey against judgment and decree dated 31.08.2018.
2. Brief facts set out in the plaint are as under:
2.1 Plaintiffs Smt. Seema Devi and her minor son Master Karan (represented by mother/next friend) have filed suit for possession, permanent injunction, recovery of arrears of rent and damages/user and occupation charges.
2.2 It is averred in the plaint that Late Amit Kumar, husband of plaintiff No.1 Smt. Seema Devi was the owner of property No. F156, land measuring 30 sq.yds., khasra No. 487, situated in Village Nasirpur, Delhi known as Sadh Nagar, Palam Colony, Delhi on the basis of registered GPA and WILL dated 30.12.2005 executed by Smt. Kamlesh Bansal and plaintiffs being his legal heirs have become sole and absolute owner of the property after his death on 23.07.2016.
2.3 It is further averred that plaintiffs are residing on the ground floor of the property whereas first floor of property No. F156, Gali No. 36, Sadh Nagar, Palam, New Delhi is occupied by defendant Smt. Seema Pandey upon monthly rent of Rs.2,500/ excluding water and electricity charges which portion (herein referred as suit property) is shown in red colour in the site plan.
2.4 Suit property is averred to have been let out to defendant on monthly basis for a period of 11 months w.e.f. 01.05.2013 up to 31.03.2014 vide rent agreement dated 01.05.2013 executed between parties and defendant being habitual defaulter in paying monthly rents has failed to pay the rent of tenanted premises w.e.f. April 2014 despite Page 2 of 9 DOD: 30.01.2019 Seema Pandey Vs. Seema Devi & Ors.RCA No. 83/18
repeated requests and demands.
2.5 Legal notice dated 01.09.2016 terminating tenancy and directing defendant to pay arrears of rent/user/occupation charges and handover peaceful and vacant possession of suit property was served upon defendant. She, nevertheless, despite determination of tenancy by efflux of time failed to vacate the property and continued in illegal possession of suit property despite termination of tenancy. 2.6 Plaintiffs, left with no alternative, have thereafter filed suit for recovery of possession in addition to arrears of rent/user/occupation charges w.e.f. 01.04.2014 along with interest @ 18% p.a. and damages @ Rs.5,000/ per month from the date of filing of suit.
3. Plaintiff's suit was contested by defendant by filing her written statement disputing landlordtenant relationship by claiming herself as bonafide purchaser of first floor of property No. F156, khasra No. 487, Village Nasirpur, Delhi for a sum of Rs.3,75,000/ by virtue of GPA, Agreement to Sell, Affidavit/NOC, WILL Deed, Receipt and Possession Letter dated 22.01.2009 executed by Shri Amit Kumar.
3.1 Defendant, in addition, has also averred to be residing in the suit property with Shri Amit Kumar as brother and sister since 2007 and claims to have purchased the first floor of property from Shri Amit Kumar who required the money for his daily expenses and treatment of disease/illness.
3.2 It is further averred that defendant used to take care by regularly visiting Shri Amit Kumar in the hospital and bore all expenses incurred upon his treatment at DDU and Lala Ram Swarup Institute of TB & Respiratory Hospital, Mehrauli till his death and none of his blood Page 3 of 9 DOD: 30.01.2019 Seema Pandey Vs. Seema Devi & Ors.
RCA No. 83/18relations visited him to claim his dead body which was cremated by the hospital as unclaimed. Defendant, in addition, has also disputed plaintiff Smt. Seema Devi as legally wedded wife of Late Amit Kumar and has denied plaintiff's averments in corresponding paras of reply on merits
4. Plaintiffs filed their replication and following issues were settled on 02.03.2017:
(1) Whether their exists a relationship of landlord and tenant between both the parties on date of filing of the suit? ... OPP (2) Whether plaintiff is the owner of the suit property in question? ... OPP (3) Whether defendant is the owner of the suit property in question? ... OPD (4) Whether plaintiff is entitled to the relief of permanent injunction? ...OPP (5) Whether plaintiff is entitled to relief of possession with respect to the suit property? ... OPP (6) Whether plaintiff is entitled to arrears of rent and mesne profits? ...OPP (7) Whether plaintiff is entitled to damages and if so, at what rate? ...OPP (8) Whether plaintiff has filed proper court fees? ... OPP
5. Plaintiff No.1 Smt. Seema Devi and defendant Smt. Seema Pandey have examined themselves as PW1 and DW1 in support of their respective contentions.
6. Arguments were addressed by their counsels and plaintiff's Page 4 of 9 DOD: 30.01.2019 Seema Pandey Vs. Seema Devi & Ors.
RCA No. 83/18suit was partly decreed vide judgment dated 31.08.2018 by directing defendant to handover vacant and peaceful possession of suit property within 30 days and restraining her from parting with possession or creating any third party interest in the suit property.
7. Aggrieved by the judgment and decree dated 31.08.2018, defendant Smt. Seema Pandey (appellant herein) has filed present appeal assailing judgment on following grounds:
7.1 That she is the owner of suit property having purchased the same for total sale consideration of Rs.3,75,000/ by virtue of GPA, Agreement to Sell, Affidavit/NOC, WILL Deed, Receipt and Possession Letter dated 22.01.2009 executed by Shri Amit Kumar. 7.2 That she has been residing in the suit property since 2007 for looking after Shri Amit Kumar who treated her as his sister and was having a tenant on the ground floor of the property. 7.3 That Shri Amit Kumar had died in the hospital and his body was cremated unclaimed as plaintiffs did not visit him in the hospital whereas defendant used to visit him regularly and bore all expenses of his treatment at the hospital.
7.4 That plaintiff's suit is liable to be rejected as proper court fee has not been filed.
7.5 That plaintiff's suit has been filed on the basis of false documents as Late Amit Kumar had told the appellant during his lifetime that documents of the suit property had been misplaced by him. 7.6 That defendant's documents viz. GPA, Agreement to Sell, etc. dated 22.01.2009 referred as Ex.DW1/1; Copy of ration card Ex.DW1/2;
Copy of RTI sought from Lala Ram Institute Ex.DW1/4 and complaint Page 5 of 9 DOD: 30.01.2019 Seema Pandey Vs. Seema Devi & Ors.
RCA No. 83/18dated 17.03.2017 PS Palam Village Ex.DW1/5 were not considered by Ld. Trial Court.
7.7 That landlordtenant relationship between Sh. Amit Kumar and defendant could not be proved by plaintiff who has filed forged and fabricated rent agreement with intention to grab the suit property and legal notice terminating tenancy was never received by defendant who was residing with Shri Amit Kumar since 2007 and subsequently purchased the first floor on the basis of GPA, Agreement to Sell, etc. 7.8 That plaintiff's documents viz. Copy of electricity bill Ex.PW1/7; copy of aadhar card Ex.PW1/8; wedding photographs Ex.PW1/9 (colly) and birth certificate of plaintiff no.2 Master Karan were disputed by her at the stage of admission/denial of documents which documents were not proved to establish plaintiff Smt. Seema Devi as legally wedded wife and Master Karan as son of Late Amit Kumar.
8. It is pertinent to note at the outset that issue No.(1) with respect to landlordtenant relationship and issues No. (6) & (7) with respect to arrears of rent, damages and mesne profits have been decided against the plaintiff in the absence of proper evidence whereas issue No. (2) was disposed off by Ld. Trial Court by observing that plaintiffs being widow and son of Late Amit Kumar having title deed of property in their possession are not required to prove their title/ownership and defendant was trying to take benefit by disputing their relation with deceased Amit Kumar. It is significant to note that plaintiffs' documents, death certificate of Shri Amit Kumar and site plan were admitted by defendant in he statement recorded on 02.03.2017 at the time of admission/denial of documents.
9. Issue No. (3) with respect to defendant's title/ownership being Page 6 of 9 DOD: 30.01.2019 Seema Pandey Vs. Seema Devi & Ors.
RCA No. 83/18relevant has been decided against her by referring to observations and discussions upon Issue No. (2) which observations are affirmed as mere Agreement to Sell does not create any right in the property other than the right to enforce the said agreement and defendant has no right to continue in occupation of suit property as agreement purchaser as held by Hon'ble High Court of Delhi in the judgment titled Sunil Kapoor Vs. Himmar Singh & Ors. MANU/DE/0203/2010. Ld. Trial Court in addition has also observed that immovable property could not be legally and lawfully transferred through GPA, WILL Etc. as held by Hon'ble Supreme Court of India in the judgment of Suraj Lamp & Ors. Vs. State of Haryana & Anr. 2012 (1) SCC 656.
10. Advocate Shri M.K. Sharma for appellant has addressed his submissions asserting defendant's title/ownership by referring to GPA, Agreement to Sell, etc. of first floor of the building executed by Shri Amit Kumar against sale consideration of Rs.3,75,000/. It is, however, pertinent to note that none of these documents can be cited in support of defendant's title and ownership in view of categorical pronouncement of Hon'ble Supreme Court of India in para no.16 of aforesaid judgment titled Suraj Lamp (supra).
"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 immovable property. The courts Page 7 of 9 DOD: 30.01.2019 Seema Pandey Vs. Seema Devi & Ors.RCA No. 83/18
will not treat such transaction 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 T.P. Act. Such transactions cannot be relied upon or made the basis for mutation in Municipal and Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to free hold property but also to transfer of lease hold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SPA/GPA/WILL transactions known as GPA sales."
11. It is significant to note that GPA, Agreement to Sell, Affidavit/NOC, WILL, Receipt and Possession Letter date 22.01.2009 were attested by notary public which set of document does not convey any right or title to defendant. Further, it is also pertinent to note that Agreement to Sell has been prepared upon stamp paper of Rs.50/ without affixing requisite stamp duty i.e. 90% of sale consideration Rs.3,75,000/ as required under Clause 23A of Schedule I of the Indian Stamp Act, 1899 and defendant cannot therefore protect her possession on the basis of part performance after commencement of the Registration and other Related Laws (Amendment) Act, 2001 in view of amendment in Section 53A of the Transfer of Property Act, 1882 and Section 17(1A) of the Registration Act, Page 8 of 9 DOD: 30.01.2019 Seema Pandey Vs. Seema Devi & Ors.
RCA No. 83/181908.
12. Issue No. (8) with respect to valuation of suit does not require any interference as defendant has vaguely disputed plaintiff's valuation for the purpose of jurisdiction and court fee and plaintiff's valuation for relief of possession at Rs.77,500/ has been accepted by the Ld. Trial Court as proper.
13. Judgment and decree dated 31.08.2018 is therefore affirmed in the absence of any illegality or infirmity and appeal being devoid of merit is dismissed.
14. Parties to bear their own cost.
15. Decree sheet be prepared accordingly.
16. Trial Court Record be sent back to record room alongwith copy of this judgment.
17. Appeal file be consigned to Record Room after necessary compliance. Digitally signed by TARUN TARUN YOGESH YOGESH Date:
2019.02.01 16:59:32 +0530 Announced in the open Court (Tarun Yogesh) On 30.01.2019 ADJ03/South West Dwarka / New Delhi Page 9 of 9 DOD: 30.01.2019