Delhi District Court
Sh. Naresh Kumar vs Sh. C. Prakash on 21 May, 2010
IN THE COURT OF SH. BHUPESH KUMAR : ADDL. DISTRICT
JUDGE : 06 : WEST DISTRICT : DELHI.
RCA no. 4/08
Sh. Naresh Kumar
S/o sh. Bishambar Singh,
R/o CB-87, Naraina Ring Road,
New Delhi-110028
.......... Appellant/Defendant
versus
Sh. C. Prakash
S/o Sh. Ram Swarup Gupta,
R/o P-170, Sanjay Nagar,
Ghaziabad, U.P.
......... Respondent/plaintiff
Date of Institution : 05.08.2008
Date of Arguments : 20.05.2010
Date of pronouncement : 21.05.2010
JUDGMENT
1. The appellant has preferred the present appeal to set aside the impugned judgment and decree dt. 7.7.08 passed by Sh. Sidharth Mathur, Ld. Civil Judge vide which the suit filed by respondent/plaintiff seeking possession of the property in question was decreed.
2. The notice of the appeal was issued to the respondent. TCR was called.
3. Before proceeding ahead here it is necessary to reproduce the brief facts of the matter as emerged from the pleadings of the parties. The respondent has filed the suit for possession against the appellant/defendant before trial court on the ground that vide GPA, agreement to sell and affidavit etc. he has purchased the property measuring 150 sq. yards bearing plot no. 90 in Block B, out of Khasra No. 16/25 in revenue estate of Village Asalatpur Khadar from the joint owners namely Dalip Singh, Dalpat Singh, Hari Singh, Kure Mal, Mauji Ram, Sukhbir Singh, Virender Singh and Mir Singh for a sum of Rs. 12,000/0 in the month of March 1981. Since the respondent/plaintiff was employee with Steel Authority of India Ltd. and was posted outside Delhi, the respondent/plaintiff could not visit property for long period. In the month of October, 95 when he was transferred to Delhi and visited the suit property purchased by him he found that appellant/defendant taking the advantage of the absence of respondent/plaintiff has occupied the plot and built boundray wall and one room without permanent roof. On query the appellant/defendant stated that he has purchased the property, but no document of ownership was shown by the appellant/defendant. The respondent/plaintiff approached the local police and on the basis of complaint of respondent/plaintiff the FIR no. 546/2000 U/s 447, 467, 468, 471 and 34 of IPC was registered at PS Uttam Nagar against appellant. The appellant has claimed that he has purchased the property no. B-89, Block B Chankya Place, Pankha Road out of Khasra No. 18 in revenue estate of Village Bindapur, New Delhi. Inter alia, on the basis of these submissions prayer was made to decree the suit and to direct the appellant/defendant to hand over the possession of property in question.
4. The appellant/defendant contested the suit taking preliminary ! " # $ % & ' ( ) *,+,! - . / objection that suit is time barred and that the suit is also bad for misjoinder of parties. It was further submitted that plot no. 90-B, Block B Chankya Place is already in existence which is in possession of Smt. Usha at ground floor but she has not been made party to the present suit. On merits, it was denied that the plaintiff has purchased the plot measuring 150 sq. yards in March, 1981 bearing plot no. 90 in block out of khasra no. 16/25 in revenue estate of village Asalatpur Khadar. It was further submitted that property in question was purchased by appellant/defendant and the same property bear no. B- 89, Block B Chankya Place, Pankha Road out of Khasra No. 18 in revenue estate of Village Bindapur, New Delhi. Inter alia, on the basis of these submissions prayer was made to dismiss the suit.
5. On the basis of pleadings of parties, following issues were framed before Ld. trial court on 4.3.02 :
1. Whether the suit property is situated in Khasra No. 16/25 in the Revenue Estate of village Asalatpur, Khadar? OPP
2. Whether the suit property is situated in Khasra no. 18 of village, Bindapur? OPD
3. Whether the plaintiff is the owner of the suit property? OPP
4. Whether the defendant is the owner of the suit property? OPD
5. Whether the suit is barred by time? OPD
6. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD
7. Whether the plaintiff is entitled to the relief of possession? OPP
8. Relief.
6. The respondent/plaintiff has examined himself as PW1, Sh. 0 1 2 3 4 5 6 7 8 9 : ; < =?>@4 A B C Surender Kumar, Halka Patwari of village Asalatpur Khadar as PW2, ASI Ravinder Singh, Investigating Officer of FIR no. 546/2000 as PW3 and Sh. Virender Saini as PW4.
The appellant/defendant examined himself as DW1 and independent witnesses Sh. Jaipal Singh as DW2 and Sh. Ram Niwas as DW3. plaintiff has examined eight witnesses in support of its case.
7. After concluding the trial the suit was decreed and aggrieved by judgment and decree dt. 7.7.08, the appellant/defendant has preferred the present appeal.
8. I have heard the arguments of ld. counsel for parties besides going through the material on record.
9. The Ld. trial court has decided issue no. 1 to 4 altogether.
However, considering the facts and circumstances here issue no. 1 and 2 are taken up together.
ISSUE NO. 1 : Whether the suit property is situated in Khasra No. 16/25 in the Revenue Estate of village Asalatpur, Khadar? OPP ISSUE NO. 2 : Whether the suit property is situated in Khasra no. 18 of village, Bindapur? OPD The main dispute between the parties is that whether the property is situated in village Asalatpur as claimed by the respondent/plaintiff or in revenue estate of village Bindapur as claimed by the appellant/defendant.
In order to substantiate its contention the respondent/plaintiff @ ?
has examined Sh. Surender Kumar, Halka Patwari. This witness has submitted to the effect that with the directions of Tehsildar, he visited the spot and conducted the demarkation of property vide inspection report Ex. PW2/1. He further submitted to the effect that on inspection he found that the property in question is situated in khasra no. 16/25, village Asalatpur Khadar. This witness was cross examined at length. During cross examination, on calling explanation this witness submitted that he has not placed on record any map of the property alongwith his report. It was suggested to the witness that he has not filed the map of the revenue record on the file as the property does not fall in Khasra no. 16/25 but this suggestion was denied. This witness being Halka Patwari, Revenue official of the concerned area carries maximum importance. The cross examination of this witness has been scrutinized carefully and it is found that ld. counsel for appellant has failed to extract anything favorable to the appellant during his cross examination. This witness has in unmistakable terms submitted that he visited the spot at asking of the concerned Tehsildar and prepared the report Ex. PW2/1 which is counter signed by Kanoongo and concerned Tehsildar. There is nothing on record which suggest that this witness being Government Official was interested in any mannre to depose in favor of the respondent/plaintiff or even the Kanoongo and Tehsildar were interested to file report in favor of the respondent/plaintiff as the report Ex. PW2/1 has been countersigned by Tehsildar and Kanoongo.
As pointed out by ld. counsel for respondent/plaintiff, one fact remained in the said report Ex. PW2/1 that the sites of the property as mentioned in the said report are in correspondence to the sites as mentioned in GPA Ex. PW1/1 which is in favor of the D E respondent. The evidence of PW3 also corroborates the plea of respondent/plaintiff to the effect that property is situated in the revenue estate of village Asalatpur Khadar.
From the evidence came on record, the preponderance of probabilities lies in favor of the respondent and against appellant. On the other hand, the evidence of the independent witnesses of appellant/defendant also scrutinized. DW2 and DW3 claimed themselves to be neighborer of the appellant, but during their cross examination they failed to answer any of the query called. Both these witnesses except stating that 'they cannot say' or 'they do not know' has not stated anything else favorable to appellant. The manner in which both these witnesses deposed during their cross examination it is absolutely not safe to relied upon their testimony.
Considering the entire evidence and material available on record, the preponderance of probabilities lies in favor of the respondent/plaintiff that the property in situated in khasra no. 16/25 revenue estate of village Asalatpur and not in revenue estate of village Bindapur. Both these issues have been rightly decided by the Ld. Trial Court. There is no justified ground to interfere in both these issues as decided by ld. Trial Court that the exact no. of the property is 90 in Block B, out of Khasra No. 16/25 in revenue estate of Village Asalatpur Khadar.
10. ISSUE NO. 3 : Whether the plaintiff is the owner of the suit property? OPP The onus to prove this issue was upon the plaintiff. The plaintiff claimed himself to be owner of the property on the basis of unregistered GPA Ex. PW1/1, agreement to sell Ex. PW1/2, affidavit F G H I J K L M N O P Q R S,T,J U V W Ex. PW1/3 and registered receipt Ex. PW1/4. Now the question arises whether on the basis of these unregistered document the respondent/plaintiff can claim the ownership over the property in question.
Before proceeding ahead here it is necessary to reproduce the relevant provisions :-
Section 54 of Transfer of Property Act 'Sale' defined.- 'Sale' is a transfer of ownership in exhange for a price paid on promised or part-paid and part-promised.
Sale how made.- Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
Section 17 of Registration Act.
Documents of which registration is
compulsory.
(1) The following documents shall be
registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871 or the Indian Registration Act, 1877 or this Act came or comes into force, namely
(a) ..............
X Y Z [ \ ] ^ _ ` a b c d e?f@\ g h i
(b) other non testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether inpresent or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creatio, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) ...........
(e) ...........
Section 49 of Registration Act Effect of non-registration of documents required to be registered. No document required by Section 17 [or by any provision of the Transfer of Property Act, 1882) to be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence or any transaction affecting such property or conferring such power, unless it has been registered.
[Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered j k l m n o p q r s t u v w,s,n x y z may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered instrument.]
11. In view of Section 54 of TP Act, the immovable property worth more than Rs. 100/- can be transferred only with the registered document/instrument. Section 54 of Transfer of Property Act in correspondence to Section 17 of Registration Act gives the list of documents for which the registration is required. Section 49 of Registration Act is of utmost importance and inter alia, as per Section 49 of Registration Act, the document which has not been registered required to be registered under section 17 of Registration Act shall not be read in evidence. It apparently shows that the unregistered document on which the respondent/ plaintiff is claiming ownership over the property in question has not been executed in view of the provisions of Transfer of Property Act or Registration Act.
In case Suraj Lamp & Industries (P) Ltd.
through DIR vs. State of Haryana & anr., 2009(7) S.C.C. 363, Hon'bleSupreme Court has, inter alia, hold that the Registration Act, 1908, was enacted with the intention of providing orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgerty of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non registration. Section 17 of the { | } ~ ,, Registration Act clearly provides that any document (other than terstamentary instruments) which purports or operates to create, declare, assign, limit or extinguish whether in present or in future 'any right, title or interest'whether vested or contingent of the value of Rs. 100 and upwards to or in immovable property. Section 49 of the said Act provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with the property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has ben subjected to title and interest in the property. It gives solemnity of form and perpetuate document which are of legal importance or relevance by recording them, where people may j k l m n o p q r s tu v w yr,n x y z see the record and enquire and ascertain what the particulars are and a far as land is concerned what obligatins exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) s a full and complete account of all transactions by which the title to the property may be affected and secure extract/copies duly certified.
Resource to 'SA/GPA/WILL' transactions is taken in regard to freehold properties, even when there is no bar or prohibition regarding transfer or conveyance of such property, by the following categories of persons :-
(a) Vendors with imperfect title who cannot or do not want to execute registered deeds of conveyance.
(b) Purchasers who want to invest undisclosed wealth/income in immovable properties without any public record of the transaction. The process enables them to hold any number of properties without disclosing them s assets held.
(c) Purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to these methods to avoid multiple stamp duties/registration fees so as to increase their profit margin.
j k l m n o p q r s tu v w y y n x y z Whatever be the intention, the consequences are disturbing and far reaching, adversely affecting the economy, civil society and law and order. Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the government and public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, theeby encouraging circulation of black money and corruption. This kind of transactions has disastrous collateral effect also. For example, when the market value increases, may vendors (who effected power of attorney sales without registration) are tempted to resell the property taking advantage of the fact that there is no registered instrument or record in any public office thereby cheating the purchaser. When the purchaser under such 'powerof attorney sales' comes to know about the vendors action, he invariable tries to take the help of musclemen to 'sort out'the issue and protect his rights. On the other han, real estate mafia many a time purchase properties which are already subject to power of attorney sale and then threaten the previous 'Power of attorney Sale' purchaser from asserting their rights. Either way, such power of attorney sales indirectly lead to growth of real estate mafia and criminalization of real estate transactions.
,
12. In view of provision of Section 54 of Transfer of Property Act read with Sections 17 and 49 of Registration Act and in the light of above judgment, the unregistered documents compulsorily required to be registered U/s 17 of Registration Act can not be read in evidence and the respondent/plaintiff cannot claim the ownership over property in question on the basis of unregistered documents. The findings of ld. trial court on this ground are liable to be set aside and issue is decided accordingly that the respondent/plaintiff cannot claim the ownership on the basis of unregistered documents.
13. ISSUE NO. 4 : Whether the defendant is the owner of the suit property? OPD The appellant/defendant claimed ownership over the property in question on the basis of unregistered documents. In the light of discussions held in issue no. 3, it is observed that the defendant also can not be declared owner of the property in question on the basis of unregistered document. Without any further discussion this issue is also liable to be set aside and issue is decided accordingly that the appellant/defendant cannot claim the ownership on the basis of unregistered documents.
14. ISSUE NO. 5 : Whether the suit is barred by time? OPD The onus to prove this issue was upon the appellant/defendant. As per claim of the appellant/defendant if the respondent/plaintiff has come to know in the month of March October, 95 that appellant/defendant was in possession of property then why he has not taken action immediately. On this score, ld. trial court has ¡ ¢ £ ¤ ¥ ¦ § ¨ © ª «¬ ® ¯±°@¥ ² ¯ ³ reached at the conclusion that suit was within time. The suit for possession can be filed on the basis of title within 12 years. But when the respondent has no title over the property, hence, there is no question of limitation. Hence, the issue stands decided accordingly.
15. ISSUE NO. 6 : Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD The onus to prove this issue was upon the appellant/defendant. But due to lack of evidence the issue was decided in favor of the respondent/plaintiff and there is no reason to disturb the issue as decided by ld. trial court in this regard.
16. ISSUE NO. 7 : Whether the plaintiff is entitled to the relief of possession? OPP There is no separate findings of Ld. Trial court on this issue. However, the relief has been granted to the respondent/ plaintiff under the heading 'Relief'. On this score it is found that the possession of property can be claimed on the basis of the title only. In the instant case as hold earlier that the respondent/plaintiff failed to prove title of property on the basis of unregistered documents. When the respondent/plaintiff failed to prove title of property then on what capacity the plaintiff can claim the possession. There is no answer to this question on record. Hence, it is found that this relief has been wrongly granted by Ld. Trial Court to the respondent/plaintiff.
Ld. Trial court has wrongly held the respondent/plaintiff the owner of the property on the basis of unregistered documents. Hence, the judgment and decred dt. 7.7.08 is liable to be set aside. The same stands set aside and the appeal stands allowed accordingly. TCR j k l m n o p q r s tu v w y´p?n x y z alongwith copy of this order be sent back. File be consigned to record room.
(Bhupesh Kumar) Addl. District Judge-06/ West District/Delhi 21.5.2010 (Announced in open court) j k l m n o p q r s tu v w y zEn x y z RCA no. 4/08 21.5.10 Pr : None for appellant Ld. counsel for respondent Vide separate judgment, the appeal stands allowed. Accordingly, the judgment and decred dt. 7.7.08 stands set aside. TCR alongwith copy of this order be sent back. File be consigned to record room.
(Bhupesh Kumar) Addl. District Judge-06/ West District/Delhi 21.5.2010 µ ¶ · ¸ ¹ º » ¼ ½ ¾ ¿À Á Â ÃÄ,¹ Å Ã Æ