Delhi District Court
S. Tarjit Singh vs M/S. Jainsons Westend Pvt. Ltd on 25 May, 2022
IN THE COURT OF HEM RAJ
ADJ08 : Central : Room No. 152 : THC : Delhi.
RCA No. 14/2017 (Arising from Suit No. 161/2005)
Unique ID No. : DLCT010003352017
In the matter of:
S. Tarjit Singh,
S/o Late S. Sharam Singh,
R/o R-846, New Rajinder Nagar,
New Delhi-110060. ...............Appellant/Plaintiff
Versus
1. M/s. Jainsons Westend Pvt. Ltd.,
5/7, W.E.A. Karol Bagh,
New Delhi.
2. Shri Rakesh Jain,
S/o Shri T.C. Jain,
3. Shri Atulya Kumar Jain,
S/o Shri Rakesh Jain,
Both R/o D-422, Defence Colony,
New Delhi.
4. Dr. Jagjit Singh Gambhir (Since Deceased),
Through his legal representative (s),
(a) Smt. Amrit Gambhir,
W/o Late Dr. Jagjit Singh Gambhir,
(b) Ms. Sheetal Gambhir,
D/o Late Dr. Jagjit Singh Gambhir,
(c) Ms. Simaran Gambhir,
D/o Late Dr. Jagjit Singh Gambhir,
All R/o R-846, New Rajinder Nagar,
RCA No. 11, 12, 13, 14 & 16/2017 Page no. 1 of 32
New Delhi-110060.
5. Smt. Shanti Devi (Since Deceased)
Through Her LRs
(i) Mrs. Rajinder Sethi,
(ii) Mrs. Devinder Pal Kaur,
(iii) S. Tarjit Singh (Plaintiff No. 1),
(iv) Dr. Jagjit Singh Gambhir (Plaintiff No. 2),
(v) Mrs. Tajinder Kaur (Pre-deceased)
(a) S. Mohanbir Singh,
(b) S. Harmeet Singh,
All C/o. S. Tarjeet Singh,
5/8, WEA, Karol Bagh,
New Delhi. ........Respondents/Defendants
AND
RCA No. 16/2017 (Arising from Suit No. 162/2005)
Unique ID No. : DLCT010003342017
S. Tarjit Singh, ...............Appellant/Plaintiff
Versus
M/s. Popular Sales
Pvt. Ltd. & Others ........Respondents/Defendants
AND
RCA No. 13/2017 (Arising from Suit No. 163/2005)
Unique ID No. : DLCT010003332017
S. Tarjit Singh, ...............Appellant/Plaintiff
RCA No. 11, 12, 13, 14 & 16/2017 Page no. 2 of 32
Versus
M/s. Jainsons Collections
Pvt. Ltd. & Others ..........Respondents/Defendants
AND
RCA No. 11/2017 (Arising from Suit No. 164/2005)
Unique ID No. : DLCT010003322017
S. Tarjit Singh, ................Appellant/plaintiff
Versus
M/s. Jainsons Finance Pvt. Ltd. & Others,
5/7, W.E.A. Karol Bagh,
New Delhi. ........Respondents/Defendants
AND
RCA No. 12/2017 (Arising from Suit No. 165/2005)
Unique ID No. : DLCT010003312017
S. Tarjit Singh ...............Appellant/Plaintiff
Versus
M/s. Saville Row Collections
Pvt. Ltd. & Others .........Respondents/Defendants
Date of institution : 07.01.2017.
Date of reserving the judgment : 23.03.2022.
Date of pronouncement : 25.05.2022.
RCA No. 11, 12, 13, 14 & 16/2017 Page no. 3 of 32
of Judgment
For Appellant : Sh. Ashutosh Lohia, Advocate.
For Respondents : Sh. Arun Batta and Ms. Indira
Marla, Advocates.
JUDGMENT
1. Vide this common judgment I shall disposeof five appeals of the appellant whereby the appellant has challenged the five impugned judgments and decree dated 30.11.2016 passed by Ld. Civil Judge10, Central District (Ld Trial Court), Tis Hazari Courts, Delhi in their five suits bearing No.161/2005, 162/2005, 163/2005, 164/2005 and 165/2005. Vide the aforesaid judgments the Ld. Trial Court dismissed the suits of the plaintiff seeking the relief of declaration and cancellation of sale deed dated 10.06.2002 as null and void. The appellant and the respondents herein shall be referred as the plaintiff and the defendants in this judgment, as per their original ranks as before the Ld Trial Court. The defendant No. 1 is the company in whose favour the defendant No. 2 executed a sale deed dated 10.06.2002. The defendant No. 3 is the director of the defendant No. 1 company. The other defendants are the other legal heirs of the predecessorininterest of the plaintiff who are arraigned as proforma defendants in these appeals.
RCA No. 11, 12, 13, 14 & 16/2017 Page no. 4 of 32 The case of the plaintiff before Ld Trial Court
2. The defendants no. 1, 2 and 3 are main contesting defendants. Other defendants are proforma defendants who are LRs of the precedessorininterest along with the plaintiff. The predecessor ininterest of the plaintiff, namely, Smt. Shanti Devi and Sardar Sharam Singh rented out the suit premises bearing No. 5/8, WEA, Karol Bagh, New Delhi110005 to the defendants. Certain disputes, thereafter, had arisen between the parties. They filed a suit bearing No. 831/1989 against defendants for recovery of rent and possession. During the pendency of the said suit the parties had buried their differences. An agreement to sell Ex PW1/2 dated 16.01.1995 was entered into between the parties, whereby the plaintiffs had agreed to sell the 1/5 undivided share of the premises forming part of property no. 5/8 (Mpl. No. 10517) W.E.A. Karol Bagh, New Delhi. Simultaneously, one power of attorney Ex DW1/1A was also executed by the plaintiff in favour of the defendant no. 2 and Smt. Neena Jain. In view of the said development, the aforesaid suit bearing No. 831/1989 came to be disposed of as compromised on 21.04.1995 vide compromise decree Ex.DW1/4.
3. Thereafter, disputes again arose between the parties. The defendants filed a suit for specific performance of the agreement to RCA No. 11, 12, 13, 14 & 16/2017 Page no. 5 of 32 sell against the plaintiff in the Hon'ble High Court of Delhi. The plaint in the said suit is Ex.PW1/3. The plaintiff filed a written statement therein Ex.PW1/4 along with a cheque returning back the entire consideration of Rs.1,75,000/ to the defendant. The plaintiff thus claimed the recession of the agreement to sell. In the mean while, the said suit was transferred to the District Courts after change in pecuniary jurisdiction.
4. During the pendency of the said suit the defendants did not lead any evidence in their suit. Rather they withdrew their suit for specific performance. The plaintiff sent a notice to the defendant for recovery of the rent. A suit was also filed thereto. The said suit bearing No. 455/2003 was decreed. In the said suit, the defendant No. 2 claimed that the sale deed had already been executed in favour of defendant No. 1. In another petition under Section 14(i)(a) of Delhi Rent Control Act, 1958 pending before the Court of Shri Inderjeet Singh, the ARC, the defendant No. 2 also informed about the execution of sale deed. The plaintiff then inspected the record from MCD and obtained certified copies of the sale deeds. The plaintiff, hence, filed this suit seeking declaration and cancellation of sale deed dated 10.06.2002.
The case of the defendants no. 1, 2 and 3 before Ld Trial Court.
RCA No. 11, 12, 13, 14 & 16/2017 Page no. 6 of 32
5. On the other hand, the case of the defendant's was that after the execution of agreement to sell and GPA as well as the compromise decree in the earlier suit the plaintiff had been divested of his rights and title. They further submitted that the defendants came into possession of the suit property in pursuance of the agreement to sell and thus protection of Section 53A of the Transfer of Property Act (T.P. Act) is available to them. They also challenged the suit on the ground of limitation. They further averred that the plaintiff did not perform his obligations under the agreement to sell. They further averred that the plaintiff has no right to challenge the agreement to sell as a compromise decree had been passed which never challenged or objected. The defendant further averred that certain portions of the ground and first floor had been surrendered to the plaintiff in accordance with the agreement to sell and, therefore, the plaintiff has been guilty of unjust enrichment.
6. After completion of pleadings the following issues were framed on 08.12.2005 by the Ld Trial Court:
(i) Whether the plaintiff has no locusstandi as he was not left any right, title or interest as alleged in PO No. 1 of WS? OPD
(ii) Whether the suit is barred by limitation in view of PO no.
2 of the WS? OPD
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(iii) Whether the plaintiff is entitled for the decree of declaration, as prayed in prayer para of the plaint? OPP
(iv) Relief.
7. The plaintiff examined himself as the only witness in support of his case as PW1.
8. On the other hand, the defendants have examined one of its directors and examined defendant no. 2 namely, Rakesh Jain as the only witness.
Findings of the Ld Trial Court
9. On issue no. 1 and 3, Ld. Trial Court held that they were entitled to protection under Section 53 of the Transfer of Property Act (TPA). It further held that defendant No. 2 Rakesh Jain had sufficient authority to execute the sale deed in pursuance to the power of attorney Ex DW1/A executed by the plaintiff. It further held that there is no law that a power of attorney is necessarily required to be registered. It further observed that withdrawal of their suit for specific performance by the defendants did not make a ground to allow the suit of the plaintiff. It further held that even if there was an alteration or amalgamation in the property, it was only an issue between the superior lessee i.e. DDA and the defendants and the plaintiff cannot RCA No. 11, 12, 13, 14 & 16/2017 Page no. 8 of 32 seek any relief qua the defendants. The Ld Trial Court further held that the suit of the plaintiff seeking relief of declaration simplicitor without seeking the relief of possession is not maintainable.
10. On the issue no. 2 of limitation Ld. Trial Court held that the suit of the plaintiff is within limitation as even if the limitation is computed from the date of execution of the sale deed i.e. 10.06.2002 then the suit having been filed on 30.05.2005, is within limitation.
Submissions of the plaintiff
11. Ld. Counsel for the plaintiff urged that the defendant No. 2 could not have executed the sale deed in favour of the defendant No.1 as the defendant No. 2 had no right or title to execute the same. He further contended that it is well settled principle of law that the person who has no better title cannot transfer the same to other person. He further argued that the agreement to sell mandated that certain obligations had to be performed as per agreement to sell first and, thereafter, the power of attorney would confer rights and then only the sale deed could have been executed. He further canvassed that without converting the suit property from lease hold to freehold the property could not have been transferred by way of the alleged saledeed. He further urged that without compliance of due formalities by the defendants, the sale deed is a void document and has no force in the RCA No. 11, 12, 13, 14 & 16/2017 Page no. 9 of 32 eyes of law. He further contended that the trial Court has wrongly interpreted the provisions of Section 53A of the Transfer of Property Act and apply the same to facts of the present case. He vehemently contended that the power under the power of attorney was a joint power, therefore, the said power could not have been exercised by the defendant No. 2 solely. He also argued that agreement to sell and power of attorney were executed contemporaneously and, accordingly both the documents have to be read together to ascertain the real intention of the parties, and either of the document cannot be seen dehors the other. He further argued that the defendants themselves had admitted that they did not become the owner of the suit property by virtue of agreement to sell and power of attorney and under that assumption only they had filed the suit for specific performance against the plaintiff. He further argued that defendants are now estopped from claiming ownership once they withdrew their suit.
Submissions of the defendants no. 1, 2 & 3
12. On the other hand, Ld. Counsel for defendants argued that mere filing of the written statement by the plaintiff in the suit for specific performance of the defendants along with the cheque of consideration under the agreement to sell could not have rescinded the contract between the parties. He further argued that defendants cannot be faulted by the withdrawal of their suit as the same was rightly RCA No. 11, 12, 13, 14 & 16/2017 Page no. 10 of 32 withdrawn as the sale deed had already been executed. He further argued that the defendant No. 2 has every right under the power of attorney to execute the sale deed and the power of attorney was a valid document conferring the power to execute the sale deed in favour of defendant No. 1. He further argued that the defence of the plaintiff in the suit for specific performance that some walls were removed from the premises and the same were amalgamated with the other premises is a false plea as the same had already been removed way back in the year 1974. Ld. Counsel supported the observation of the Trial Court that the suit of the plaintiff for declaration without seeking the relief of possession was not maintainable. He further urged that the suit is also bad as the plaintiff has not sought any declaration about the compromise decree, agreement to sell and power of attorney as null and void. He further argued that the plaintiff has executed sale deeds in the similar situation to the other persons, therefore, the arguments of the plaintiff that the sale deed could not have been executed is a fallacious argument. He supported the judgment of Ld. trial Court and contended that the appeal be dismissed.
13. Ld. Counsel for the plaintiff has relied upon the following judgments in support of his contentions:
(i) State of Uttar Pradesh & Others Vs. United Bank of India & Others, (2016) 2 SCC 757.
RCA No. 11, 12, 13, 14 & 16/2017 Page no. 11 of 32
(ii) Amrit Bazar Patrika Pvt. Ltd. Vs. State of U.P. & Others,
2020 (3) ADJ 49.
(iii) DDA Vs. Anant Raj Agencies Pvt. Ltd., AIR 2016 SC 1806.
(iv) D.S. Parvathamma Vs. A. Srinivasan, AIR 2003 SC 3542.
14. Ld. Counsel for defendants no. 1, 2 & 3 has relied upon the following judgments:
(i) Suresh Chand Jain & HUF Vs. Phalphor Builders Pvt.
Ltd. & Others, RFA (0S) No. 72/2011, decided on 21.02.2012 by the Hon'ble Delhi High Court.
(ii) Hardip Kaur Vs. Kailash & Another, RFA No. 648/2006, decided on 18.05.2012 by the Hon'ble Delhi High Court.
(iii) Prem Raj Vs. Babu Ram, 1991 RLR 458.
(iv) Shikha Properties Pvt. Ltd. Vs. S. Bhagwant Singh & Others, 74 (1998) DLT 113.
(v) Ajay Goel Vs. K.K. Bhandari & Others, 76 (1998) DLT
147.
15. I have heard the arguments advanced by Ld. Counsel for plaintiff and defendants and also gone through the documents and written submissions placed on record.
Findings and Analysis
RCA No. 11, 12, 13, 14 & 16/2017 Page no. 12 of 32
Issue No. 2.
(ii) Whether the suit is barred by limitation in view of PO no.
2 of the WS? OPD
16. The onus to prove this issue was on the defendant. The Ld. Trial Court held that even if the limitation is computed from the date of execution of the sale deed i.e. 10.06.2002 the suit having been filed on 30.05.2005 is well within the period of limitation. This finding has been given against the defendant. During the course of arguments Ld. Counsel for defendant has given away this finding and conceded the same. Even otherwise, no crossobjections have been filed by the defendant to challenge the aforesaid finding of the trial Court. Accordingly, I do not find any infirmity or error in the finding of Ld. trial Court. Accordingly, I hold that the Ld. Trial Court has rightly decided the issue no. 2 in favour of appellant and against the respondents.
ISSUES No. 1 & 3.
(i) Whether the plaintiff has no locusstandi as he was not left any right, title or interest as alleged in PO No. 1 of WS? OPD &
(iii) Whether the plaintiff is entitled for the decree of declaration, as prayed in prayer para of the plaint? OPP RCA No. 11, 12, 13, 14 & 16/2017 Page no. 13 of 32
17. Before proceeding further it would be better to reproduce the relevant clauses of the Agreement to Sell.
"3.The plot admeasuring 254.16 sq. yds. was acquired from Delhi Development Authority vide lease deed dated 03.09.1965 as lease hold property which is agreed to be converted into free hold property by the parties hereto. The entire expenditure of conversion from lease hold to free hold including legal expenses would be shared 1/2 by the sellers and 1/2 by the purchasers."
****************************************************** "7...............................................................................
(i)...............................................................................
(ii) It is further agreed between the parties that the following rights shall be comprised in the said sale of premises to the vendees:-
(a) An undivided proportionate share and interest in the land on the basis that the area of the said portion bears to the total area of the building. However, the said transfer of undivided share of land shall be applicable after the said property stands converted from lease hold to free hold.
****************************************************** "12. The vendors further undertake to immediately execute a sale deed in favour of vendee with the portion sold after the above said premises are converted from lease hold to free hold."
"13. If the vendors fail to execute a proper sale deed in respect of the said premises in favour of vendees immediately after the RCA No. 11, 12, 13, 14 & 16/2017 Page no. 14 of 32 conversion, then notwithstanding to anything contrary hereinabove the vendees shall deem to have been the owners for all practical purposes."
18. The relevant clause of power of attorney which gives the power for the execution of the sale deed is clause (1) which is reproduced hereasunder:-
"(1) In the event of the said vendors failing to execute the sale deed in respect of one/fifth undivided share of the said premises together the rights mentioned and as provided in the said Agreement to Sell, in the company's name and on their behalf independently to execute the Sale Deed of their respective shares, right/title and interest in the said premises in favour of the vendee or the vendees or nominees and to get the Sale Deed duly registered with the concerned Sub-Registrar of Assurances and complete all formality in connection therewith under the Indian Registration Act, at the cost and expenses of the vendees."
19. The Ld Trial Court disposed of both the aforementioned issues by common discussion. The trial Court held that in view of Section 53A of the Transfer of Property Act the suit of the plaintiff was not maintainable as the defendants were entitled to protect their possession.
20. To understand the rival submissions of the parties on this RCA No. 11, 12, 13, 14 & 16/2017 Page no. 15 of 32 aspect let us go through the provisions of Section 53A of the Transfer of Property Act. Section 53 A of TPA reads as under: "53-A. Part-performance.--Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part-performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part-performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that, where there is an instrument of transfer, that the transfer has not been completed in the man- ner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be de- barred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the con- tract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part-performance thereof."
21. A careful reading of Section 53A of the Transfer of Property Act reveals that the following are the essential ingredients of Section 53A :
(i) There must be a contract to transfer for consideration any immovable property.
(ii) The contract must be in writing signed by the transferor, or by someone on his behalf.
(iii) The writing must be in such words from which the terms necessary to construe the transfer can be ascertained.
(iv) The transferee must in part-performance of the contract take possession of the property, or of any part thereof.
RCA No. 11, 12, 13, 14 & 16/2017 Page no. 16 of 32
(v) The transferee must have done some act in furtherance of the contract.
(vi) The transferee must have performed or be willing to per- form his part of the contract.
22. It is settled law that if a section or provision of the law has provided different ingredients then all the essential ingredients of the section should be satisfied so that the benefit may be extended to the person claiming it. The defendant not only has to plead that he is entitled to his protection under Section 53A but also has to prove that he had performed or is willing to perform his part of the contract. The defendants in their suit for specific performance filed before the Hon'ble Delhi High Court pleaded that the defendants were always been ready and willing to perform their part of the contract. The plaintiff was requested several times to execute the sale deed, however, the plaintiff did not pay any heed to the requests of the defendants. The defendants, pursued their suit for specific performance, for about eight years. However, they withdrew their suit before they could lead their evidence and informed the Court that sale deed had already been executed.
23. In my considered opinion, the defendants themselves admitted that they did not become the owner of the suit premises after the agreement to sale and the power of attorney. For that reason only , they filed a suit for specific performance against the plaintiff for execution of saledeed. The act of withdrawal of their suit for specific RCA No. 11, 12, 13, 14 & 16/2017 Page no. 17 of 32 performance shows that they were never ready and willing to perform their part of the contract. In my considered opinion the readiness and willingness has to be shown not only from the day of contract but even during the pendency of the suit as till the final disposal of the suit. Therefore, the withdrawal of the suit by the defendants show that they were not willing to perform their part of the contract. Accordingly, in my opinion, the defendants have failed to comply with the essential ingredients of Section 53A of the Transfer of Property Act. The defendants have failed to meet the criteria in Section 53A of TP Act. Hence, the defendants are not entitled to protection under Section 53 A of the Transfer of Property Act.
24. Ld. trial Court further held that withdrawal of their suit for specific performance by the defendants will not make any difference to their rights. Whether the withdrawal of the suit by the defendants can be said to have any adverse effect upon the defendants or in other words whether it can be said that the defendants were not willing and ready for performance of the contract.
25. In the judgment of Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639 a question came up for the consideration of the Apex Court whether in view of the dismissal of the suit of the specific performance the defendant cannot avail the protection under Sec. 53A of TP Act. The Apex Court held that in such scenario the benefit is not RCA No. 11, 12, 13, 14 & 16/2017 Page no. 18 of 32 available. The relevant observations are reproduced as under:
"5. The question then is whether he is entitled to retain posses- sion under Section 53-A. It is an admitted fact that suit for spe- cific performance had been dismissed and became final. Then the question is whether he is entitled to retain possession under the agreement. Once he lost his right under the agreement by dismissal of the suit, it would be inconsistent and incompatible with his right to remain in possession under the agreement. Even otherwise, a transferee can avail of Section 53-A only as a shield but not as a sword. It contemplates that where any per- son contracts to transfer for consideration any immovable property by writing, signed by him or on his behalf, from which the terms necessary to constitute the transfer can be as- certained with reasonable certainty and the transferee has per- formed or is willing to perform his part of the contract, he would be entitled to retain possession and to continue in pos- session which he has already received from the transferor so long as he is willing to perform his part of the contract. Agree- ment does not create title or interest in the property. Since the agreement had met with dismissal of the suit his willingness to perform his part of the contract does not arise."
26. In view of the aforesaid observation of the Hon'ble Supreme Court it is clear that once the suit for specific performance of the defendants stands dismissed the defendant looses the right under Section 53A of the Transfer of Property Act. On the same yardstick once the defendant had withdrawn their suit it amounts to the fact that they had no further readiness or willingness to perform their part of the contract. The withdrawal of the suit amounts to the closure of the RCA No. 11, 12, 13, 14 & 16/2017 Page no. 19 of 32 cause of action they had. Hence, the defendants have lost the protection under Section 53A of TP Act.
27. Moreover, in their suit for specific performance the defendant pleaded that the sale deed had not been executed despite their requests made to the plaintiff and they were always ready and willing to perform their part of the contract but the plaintiff did not perform the same. In the said suit the defendants also pleaded that as per the conditions in the agreement to sell the suit property was to be converted from leasehold to freehold. The aforesaid averments in their suit for specific performance show that even after execution of the agreement to sell and accompanying power of attorney the defendants did not assume themselves to be the owner of the suit property and admitted that they had no perfect title with regard to the suit property. It is well settled principle of law that no person can be allowed to approbate and reprobate at the same time. The defendants at one point of time having pleaded and asked for completion of the title now cannot be allowed to say that their title was always perfect in pursuance to the agreement to sell and power of attorney. Therefore, finding of the trial Court that the fact of defendants withdrawing their earlier suit for specific performance did not make any difference, in my considered opinion is erroneous. The withdrawal of the suit by the defendants would show that they were not ready and willing to perform their part of contract, all the time, which needs to be shown RCA No. 11, 12, 13, 14 & 16/2017 Page no. 20 of 32 from the date of contract but has to continue till the final disposal.
28. The next question which arises is whether the defendants by virtue of agreement to sell became the owner of the suit property or not. It is settled principle of law that unless and until a sale deed is not registered in accordance with the provisions of Section 54 of the TP Act, no right or title in any immovable property of value of more than Rs.100/ can be created. In the judgment of Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra, (2004) 8 SCC 614, it was held by the Hon'ble Supreme Court that Section 53A of the TP Act only disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession of the property in pursuance of such agreement. However, the protection under Section 53A of TP Act does not create any ownership regarding the property under the contract and the transferor always remains the full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee.
29. Admittedly, in this case, no sale deed has been executed in favour of the defendants at any point of time. In view of the provisions under Section 54 of TP Act and the observations of the Hon'ble Apex Court in the aforesaid case of Rambhau (supra) it is crystal clear that the defendants did not become the owner of the suit RCA No. 11, 12, 13, 14 & 16/2017 Page no. 21 of 32 property as they had no sale deed with regard to the suit property in their favour from the plaintiff.
30. The Ld. Trial Court further held that the suit of the plaintiff seeking declaration without seeking the ancillary relief of possession is not maintainable. The plaintiff has filed the present case suit seeking cancellation and declaration of sale deed dated 10.06.2022 as null and void. The same was executed by defendant No. 2 in favour of defendant No. 1. Admittedly, the plaintiff is not the executant or signatory of the aforesaid sale deed.
31. In the judgment of Suhrid Singh Vs. Randhir Singh & Ors; (2010) 12 SCC 112 it was held that if the person is executant of the document then he has to seek the cancellation of the instrument but if the person is not the executant of the instrument then he has to seek a declaration thereof. Admittedly, the plaintiff is not the signatory or executant of the said sale deed. Therefore, the plaintiff should not have sought the relief of cancellation and his purpose would have been served by seeking the declaration only. However, the fact that the plaintiff has sought the relief of cancellation also does make any difference. Admittedly, the plaintiff has not executed any sale deed in this case. The next question which arises for consideration is whether the suit of the plaintiff seeking declaration is maintainable without seeking the relief of possession of the suit property.
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32. It is an admitted position between the parties that before the execution of agreement to sell and the power of attorney a compromise had taken place between the parties in the suit filed by predecessorininterest of the plaintiff. Vide legal notice Ex.PW1/8A dated 01.09.2003 of the plaintiff, the plaintiff had asked the rent @ Rs.2,800/ per month. The said notice was given under the provisions of Section 6A read with Section 8 of DRC Act. The said notice was given after the defendants had withdrawn their suit for specific performance. The plaintiff had claimed the landlordtenant relationship after the withdrawal of the suit by the defendants. The rate of rent claimed was below Rs.3,500/ per month. As per the provisions of DRC Act when the rate of rent is less than Rs.3,500/ per month then the tenant has the statutory protection and can only be evicted on the grounds mentioned therein. In such case, the Civil Court has no jurisdiction. Accordingly, the plaintiff could not have sought the relief of possession in this suit. The said fact was ignored by the Ld. Trial Court which resulted into grave injustice.
33. The plaintiff had filed a petition under Section 14 (1) (a) of the DRC Act. Vide order dated 31.08.2005 the Ld. ARC had refused to stay the proceedings. Against the said order, the defendants approached the Hon'ble High Court. Vide order dated 25.07.2006 the Hon'ble High Court had stayed the said petition till the time there is a RCA No. 11, 12, 13, 14 & 16/2017 Page no. 23 of 32 final decision of the respective claims of the parties in the present suit. The plaintiff claimed that the landlordtenant relationship existed after the withdrawal of their suit by defendants and therefore, he had filed a petition under Section 14 (i) (a) of DRC Act. Accordingly, the suit of the plaintiff seeking declaration simplicitor is maintainable as the relief of possession is hit by Delhi Rent Control Act, 1958. The plaintiff has sought the relief of declaration of sale deed dated 10.06.2002 to be null and void which affected his rights and title with regard to the suit property. Hence, in my considered opinion the trial Court did not appreciate the said fact correctly and came to an erroneous conclusion.
34. Now let me take the power of attorney Ex. DW1/A for discussion. Ld. Counsel for the defendants argued at a great length on the point that the power of attorney executed contemporaneously along with the agreement to sell gave the ample power to the defendant No. 2 to execute the sale deed in favour of defendant no. 1. On the other hand, the plaintiff argued that the power conferred under the power of attorney could only have been exercised after the property was converted to free hold from the lease hold and that too in case of failure the plaintiff to execute the sale deed in favour of the defendants.
35. It is not in dispute that the agreement to sell and power of RCA No. 11, 12, 13, 14 & 16/2017 Page no. 24 of 32 attorney were executed contemporaneously. The transaction between the parties were contained in those two documents. It is well settled principle of law that when a transaction is contained in two or more documents then all the documents shall be read together to know the real meaning and purport of the transaction contained therein. In the judgment of S. Chattanatha Karayalar Vs. Central Bank of India Limited, AIR 1965 SC 1856, the Hon'ble Apex Court held that if the transaction is contained in more than one document between the same parties they must be read and interpreted together and they have the same legal effect for all purposes as if they are one document. It is also settled principle of law that the real intention of the parties in the transaction can be ascertained by a meaningful reading of the documents and not by a mere formal reading. The conduct of the parties attached to the transaction must also be given due consideration.
36. A careful and meaningful reading of the relevant clauses of the agreement to sell show that it was the intention of the parties that first the property shall be converted from lease hold to free hold and thereafter, the sale deed would be executed by the plaintiff in favour of the defendants. The clause 3 of the agreement to sell mention that property is agreed to be converted from lease hold to free hold. Clause 7 (ii) (a) provided that the transfer of undivided share of RCA No. 11, 12, 13, 14 & 16/2017 Page no. 25 of 32 land shall be applicable after the said property stands converted from lease hold to free hold. Clause 12 further provided that vendor shall execute the sale deed in favour of the vendees after the said premises are converted from lease hold to free hold. Clause 13 provided that if the vendor did not execute the sale deed in favour of the vendees immediately after the conversion then the vendees shall be deemed to have been the owner for all practical purposes. Although, there is no denial to the fact that the power of attorney gave the power in case of failure of the vendor to execute the sale deed.
37. A cumulative reading of the relevant clauses of the agreement to sell leave no doubt that the power under the power of attorney was meant to be exercised after the property was converted from lease hold to free hold. The power of attorney was made with an intention to counter a situation where even after conversion of the property from lease hold to free hold the plaintiff refused or failed to execute the sale deed in favour of the defendant and not prior to that.
38. Even the conduct of the parties would show that the parties had intended that first the property was to be converted to free hold then only the sale deed would be executed by the plaintiff. The vendees had claimed that they had paid their part of the conversion charges to the vendor i.e. plaintiff. They filed a suit for specific performance which they continued for almost eight years. For those RCA No. 11, 12, 13, 14 & 16/2017 Page no. 26 of 32 eight years they did not assume any ownership on themselves and were seeking a decree against the plaintiff for the execution of the sale deed. In their suit, the defendants claimed that they had performed their part of contract but plaintiff despite request did not execute the saledeed. The aforesaid circumstances show that it was the real intention of the parties that the property first would be converted to free hold then only the sale deed would be executed. To over come any unpleasant situation the power of attorney was executed. Therefore, I am of the considered opinion that these two documents cannot be read in isolation and have to be read together. A combined reading of the documents would show that parties had always intended to execute the sale deed first and in case of failure of the plaintiff only, the power under the attorney would come into effect.
39. Moreover, the perusal of the power of attorney Ex.DW1/A shows that the power was not conferred solely on Shri Rakesh Jain but upon other person as well. The power had been conferred jointly and not severally or individually. It was a joint power of attorney. The power under the attorney was not given to any individual to be exercised alone. The power was to be exercised jointly by all the persons. In the judgment of Mrs. Umadevi Nambiar Vs. Thamarasseri Roman Catholic Diocese, 2022 LiveLaw (SC) 338, it was held by the Hon'ble Supreme Court that power of RCA No. 11, 12, 13, 14 & 16/2017 Page no. 27 of 32 attorney is to be construed strictly by the Court. The Court cannot amplify or magnify the clauses contained in the deed of power of attorney. The power of attorney Ex.DW1/1A was given to the aforesaid persons which could have been exercised jointly and not individually. Hence, it does not lie in the mouth of the defendants that defendant no. 2 could also exercise the said power individually. Therefore, the sale deed by the defendant No. 2 in favour of defendant No. 1 exceeded the authority given by the plaintiff under the attorney. Furthermore, it is also well settled principle of law that no body can transfer the better title than he has (Nemo dat quod non habet). In the absence of the individual power in favour of defendant No. 2 he could not have exercised the said power to execute the sale deed in favour of the defendant No. 1. Therefore, the sale deed dated 10.06.2002 by defendant no. 2 in favour of defendant No. 1 was without any authority.
40. Now let me discuss the judgments relied upon by the defendants. Ld. Counsel for the defendants has relied upon the judgment of Suresh Chand Jain (supra) and Hardeep Kaur (supra) to contend that vide agreement to sell and the power of attorney the defendants became the owner of the suit property. In the judgment of Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana, 183 (2011) DLT 1 (SC), it was held that an immovable property can be RCA No. 11, 12, 13, 14 & 16/2017 Page no. 28 of 32 legally and lawfully transferred/conveyed only by a registered deed of conveyance and transaction of the nature of GPA sales do not convey title and do not amount to transfer nor can they be recognized or valid mode of transfer of property, no right or title can be said to be transferred by such documents. Although, it was held that these documents can be relied upon for the limited purpose of Section 53A of TP Act. The judgments relied upon by the defendants were delivered before the judgment of Suraj Lamp (supra). Hence, the said judgments are not helpful to the defendants in view of the judgment of Suraj Lamp (supra). I have already held that in view of the withdrawal of the suit, the defendants are not entitled to the protection of Section 53A TP Act. Hence, the agreement to sell and attorney cannot be said to be valid documents for conferring the power/title on the defendant No. 2 so that he could execute the sale deed in favour of defendant No. 1.
41. The next question which arises is whether the sale deed Ex.PW1/15 is a void document or not. The expression 'void' and 'voidable' have been discussed by the Hon'ble Apex Court in the judgment of Dhurandhar Prasad Singh v. Jai Prakash University, (2001) 6 SCC 534.
"22. Thus the expressions "void and voidable" have been the subject-matter of consideration on innumerable occasions by courts. The expression "void" has several facets. One type of RCA No. 11, 12, 13, 14 & 16/2017 Page no. 29 of 32 void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or oth- erwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to ap- propriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who al- leges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that ef- fect is given, a transaction becomes void from the very begin- ning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable."
42. In the judgment of Dhurandhar (supra), it has been observed that a declaration is necessary pertaining to a document if it is alleged to be a forged and fabricated document. Similarly, a declaration has to be obtained in a case where a document has been executed without any authority, title and right thereof. I have already held that the defendant No. 2 did not have any power under the power of attorney to execute the sale deed in favour of defendant No. 1. Any document executed without any authority does not transfer any right in favour of a third person. The sale deed Ex PW1/15 has been executed by the defendant no 2 in favour of Defendant no 1 through its director defendant no 3 without any right or authority thereof.
RCA No. 11, 12, 13, 14 & 16/2017 Page no. 30 of 32 Hence, the said sale deed is a void document which has no value in the eyes of law.
43. In view of the aforesaid discussions, in my considered opinion, the sale deed Ex.PW1/15 dated 10.06.2002 by defendant No. 2 in favour of defendant No. 1 is without any authority or title thereof. The defendant No. 2 had absolutely no authority under the power of attorney Ex.DW1/1A to execute a saledeed. Accordingly, the sale deed Ex.PW1/15 is held to be a void document. The law does not take any cognizance of the same. The sale deed Ex PW1/15 is accordingly declared as null and void.
RELIEF
44. These appeals are accordingly allowed. Consequently, the the judgments and decree dated 30.11.2016 of the Ld. Civil Judge10, Central, Tis Hazari Courts, Delhi, in the file of suit No. 161/2005, 162/2005, 163/2005, 164/2005 & 165/2005 are hereby setaside. In the result the aforesaid suits of the plaintiff are decreed in favour of the plaintiff and against the defendants. Accordingly, the sale deed dated 10.06.2002 executed by defendant No. 2 Shri Rakesh Jain, attorney in favour of defendant No. 1 through its director defendant No. 3, registered with the SubRegistrar, New Delhi at serial No. 2591 in Additional Book No. I, Volume No. 10472 in respect to 1/5th RCA No. 11, 12, 13, 14 & 16/2017 Page no. 31 of 32 undivided share of the portion of property bearing No. 5/8, W.E.A. Karol Bagh, New Delhi is declared as null and void.
45. The plaintiff shall also be entitled to costs of the suit.
46. The signed copy of this judgment be placed in the file of RCA No. 14/2017 (arising out of suit no.161/2005) and an attested copy be placed in the files of other connected appeals.
47. An attested copy of this judgment be also placed in the file of Ld. Trial Court. The trial Court record be sent back forthwith.
48. Decree sheet be prepared accordingly.
49. Appeal file be consigned to Record Room after necessary Digitally signed by compliance. HEM HEM RAJ Date:
RAJ 2022.05.25
16:40:40
+0530
Pronounced in the open court (Hem Raj)
on 25th May, 2022. Additional District Judge8 Central:Tis Hazari Courts: Delhi.
RCA No. 11, 12, 13, 14 & 16/2017 Page no. 32 of 32