Delhi District Court
Sh. Harvinder Singh vs Sh. Jagdish Prakash Bhatnagar on 31 May, 2013
IN THE COURT OF SH. PITAMBER DUTT; ADJ (CENTRAL)11,DELHI
Suit No. 226/11
Unique Case ID No. 02401C0113882005
Sh. Harvinder Singh
S/o Sh. Jagbir Singh
R/o Karan Motor Market
563, Gali Bahel Saheb,
Ram Bazar, Hamilton Road
Kashmiri Gate, Delhi
.......Plaintiff
Versus
Sh. Jagdish Prakash Bhatnagar
( Since Deceased)
Through
Smt. Ruchi Sagar
D/o Sh. M.P. Bhatnagar
W/o Sh. Aman Sagar,
R/o BW-70B, Shalimar Bagh
New Delhi- 110088
.........Defendants
Date of Institution of Suit : 17.02.2005
Date when reserved for orders : 29.05.2013
Date of Decision : 31.05.2013
JUDGMENT
1 Vide this judgment I shall decide a suit for declaration, possession, permanent injunction and mesne profits filed by the plaintiff against the defendant. The brief facts necessitated in filing the present suit are given as under: -
2 That DDA allotted flat bearing No. F9/D, Munirka, ( MIG), Residential Scheme Sh: Mr. Sohan Lal in the year 1977. The provisional letter dated 18.07.1977 regarding allotment and handing over possession with respect to the said flat was also issued in his Suit no.226/11 1/40 name. The plaintiff entered into an agreement to sell dated 18.8.97 with Sh. Sohan Lal with respect of the said flat for a total sale consideration of Rs. 2,50,000/-. Sh. Sohan Lal executed an agreement to sell, registered General Power of Attorney, Special Power of Attorney, registered Will and receipt in that regard. After purchasing the said flat, plaintiff came to know that allotment of the said flat was cancelled by the DDA due to non-payment of installment. The plaintiff applied for restoration of the allotment, as well as for conversion of the said flat from lease hold to free hold and deposited the requisite amount vide receipt No. 011540.
3 On 16.11.99, DDA issued a demand letter for a sum of Rs. 2,00,925/- on account penalty to be deposited for restoration of allotment and conversion of the said flat. The plaintiff deposited the said amount vide receipt No. 051552 on 14.12.99. The DDA after seeing the requisite documents accepted the amount and informed the plaintiff that allotment of suit flat was restored w.e.f 10.12.99. The suit flat was converted from lease hold to free hold on 20.01.2000 and conveyance deed was executed in favour of the plaintiff which was duly registered with the sub-Registrar. The plaintiff has thus become the owner of the suit property by virtue of the Conveyance Deed executed by the DDA in his favour.
4 That while entering into the transaction with Sh. Sohan Lal, he had informed the plaintiff that suit flat was in possession of defendant as licensee who was his close acquaintance. Sh. Sohan Lal assured the plaintiff that defendant had already spoken to him and agreed to vacate the suit flat as and when plaintiff would approach to him. Upon execution of necessary documents, plaintiff approached the defendant and requested to hand over peaceful and vacant Suit no.226/11 2/40 possession to him. The defendant resisted the same initially but after pursuing the documents executed by Sh. Sohan Lal, he undertaken to vacate the suit flat on or before 01.04.1998.
5 The plaintiff agreed to grant time to the defendant to vacate the flat on a condition that, if defendant failed to vacate the suit flat by 01.04.1998 he would be liable to pay a sum of Rs. 12,000/- per month as damages. The agreed to it, but despite his assurance, he has failed to vacate the suit premises till date.
6 When plaintiff insisted the defendant to vacate the suit premises his intention turned dishonest and he filed a false and frivolous suit for permanent injunction being suit no. CS 400/03. In the said suit defendant claimed himself to be the owner of the suit flat having purchased the same from Sh. Jag Mohan Singh S/o Sh. Kartar Singh. He further alleged in the suit that Sh. Jag Mohan Singh has purchased the suit flat from Sh. Sohan Lal and thus have acquired right to sell the same to the defendant. The defendant further averred that suit flat was purchased by him for a sale consideration of Rs. 11,50,000/- vide agreement to sell dated 16.02.1996. As per the plaintiff, defendant is in unauthorized and illegal possession of the suit premises and he is merely a trespasser and plaintiff has left with no other remedy except to file the present suit. On the basis of the above averments, present suit has been filed for adjudication.
7 Pursuant to the summons defendant appeared and filed written statement taking preliminary objection that suit filed by the plaintiff is frivolous, vexatious and is an abuse of process of law, that plaintiff has not approached the court with clean hands and has not disclosed the true and correct facts, the suit filed by the plaintiff is Suit no.226/11 3/40 hopelessly barred by limitation, suit does not disclose any cause of action. The suit is bad for non-joinder of necessary parties, the suit is not properly valued.
8 On merit it is averred that defendant is the absolute/actual and real owner of the suit property and is enjoying the peaceful possession of the suit property since 1996. The plaintiff threatened him to dispossess from the suit property due to which defendant filed a suit bearing No. 991/2000 for permanent injunction and the hon'ble High Court vide order dated 19.05.2000 restrained the plaintiff from dispossessing the defendant or his family members in any manner.
9 He further averred that plaintiff is under some mis- conception that he is owner of the suit property. It is denied that flat in question was converted from lease hold to free hold and a conveyance deed was executed in favour of the plaintiff. It is also denied that by virtue of the aforesaid documents and conveyance deed plaintiff has become the owner of the suit property. It is denied that defendant sought time to vacate the suit flat. It is also denied that he is liable to pay sum of Rs. 12,000/- per month as damages for unauthorized use and occupation of the suit property. It is denied that while handing over the possession of the scooter garage he offered time to vacate the suit property till 30.09.1997. it is averred that defendant is the owner in his own right and the question of vacation or handing over the possession does not arise at all. All other averments have been denied and it is prayed that suit be dismissed with cost. 10 The plaintiff has filed replication to the written statement thereby reiterated the averment made in the plaint and denied the averment made in the written statement.
Suit no.226/11 4/4011 On the basis of the pleadings of the parties, ld. Predecessor of this court vide order dated 07.10.2005 framed the following issues for adjudication:-
1. Whether the suit is barred by limitation ? OPD
2. Whether the suit is bad for non-joinder of necessary parties? OPD
3. Whether the suit filed by plaintiff property valued for the purpose of jurisdiction? OPD
4. Whether the defendant is lawful occupant of the suit premises? OPD
5. Whether the plaintiff is entitled for decree for declaration, possession & permanent injunction? OPP
6. Whether the plaintiff entitled to mesne profits as claimed? OPP
7. Relief
12 In order to substantiate his plea plaintiff has examined himself as PW-1 and reiterated the averment made in the plaint in his examination in chief. PW-1 exhibited the agreement to sell dated 18.08.1997 as Ex. PW-1/1, GPA, SPA, Will and receipt dated 18.8.97 as Ex. PW-1/2 to Ex. PW-1/5, Copy of receipt No. 011540 as Ex. PW-1/6, Copy of application as Ex. PW-17, Letter dated 14.12.99 Ex. PW-1/8, Copy of another application as Ex. PW-1/9, Conveyance Deed Ex. PW-1/10, Possession letter dated 30.08.1997 as Ex. PW-1/11.
13 During cross-examination PW-1 briefly deposed that flat in question was purchased by him from defendant through property dealer Chauhan. He alongwith original allottee of the flat Sh. Sohan Lal Sethi had personally visited the flat before it was purchased by him. At that time this flat was in possession of J.P. Bhatnagar, the defendant herein. He had also verified the ownership document of the Suit no.226/11 5/40 flat in the record of DDA and found that Sohan Lal Sethi was the original allottee. He was not aware of the cancellation of the flat in the name of Sh. Sohan Lal Sethi at the time of purchase. He came to know about the cancellation of the flat when he visited the office of the DDA alongwith his application for conversion of the flat from lease hold to free hold. Sh. Sohan Lal Sethi furnished the consent letter for restoration of the ownership in the name of Sh. Sohan Lal Sethi. He is not aware that Sh. Sohan Lal himself had sold this flat in the year 1992 to one Sh. Jag Mohan on the basis of Agreement to sell, GPA, possession letter, receipts. He was not aware that Sh. Sohan Lal had given the possession of the flat to Sh. Jagmohan. He is not aware as to if the flat was later on purchased by the defendant from Jagmohan in the name of his wife on the basis of the same documents. He is not aware if possession of the flat was handed over by Jagmohan in the year 1996 to the defendant and since then the defendant is in the possession of the same. He further deposed that there is no false averment in his title documents regarding taking of the possession to the extent that in fact the possession of the flat was handed over to him by both Mr. Sohan Lal Sethi and the defendant and that too in the hand writing and signatures of the defendant. He denied that documents placed by him on record Ex. CW-1/2 to Ex. CW-1/5 are not similar to the documents registered before the sub-Registrar. He denied that document Ex. PW-5/1 5/2, 5/3 are different from documents Ex. CW-1/2 to 1/5. He further deposed that he had purchased the suit flat for a sum of Rs. 2,50,000/-. He denied that he in collusion with the officials of the DDA and on the basis of forged documents got the suit flat restored, converted to free hold or mutated in his name. He denied that conveyance deed Ex. PW-1/10 has been executed by him in his own name. He did not initiate any other legal proceedings against defendant except filing the present suit nor did he Suit no.226/11 6/40 serve him with any legal notice. He did not initiate any action during this period on humanitarian grounds because wife of the defendant had died in a car accident and defendant himself had suffered number of injuries in the said accident. He denied that during this period he made an effort to take forcible possession and in that he succeeded in taking possession of the garage which was later on restored. He volunteered that the possession of the scooter garage was handed over to him by the defendant on 30.08.1997 in his own handwriting. He denied that the said handwriting viz a viz possession of the scooter garage was forcibly obtained by him. He denied that Sohan Lal Sethi was not the owner of the flat in the year 1997. There was no question of making any complaint by him against Sohan Lal Sethi that he committed any fraud upon him. He is not aware that the market value of the suit flat in the said area during that period was not less than Rs. 50 lacs. He denied that he has no right to claim any damages/mesne profits from the defendant. He also denied that he has mutated the flat in his name in the record of MCD on the basis of the forged documents. He volunteered that at the time even the defendant was given opportunity and both of them were heard and after detailed inquiry the application of the defendant was rejected and flat was mutated in his name. He denied that defendant is the actual owner of the flat in question and is in possession of the same in that capacity.
14 Plaintiff has also examined Sh. T.R. Gautam, UDC from DDA as PW-2. The said witness brought the record of the suit flat which was allotted to Mr. Sohan Lal Sethi vide allotment letter dated 18.07.1977 Ex. PW-2/1. The said witness deposed that demand notice dated 14.06.1985 was sent in the name of Sohan Lal Ex. PW-2/2 thereafter allotment formalities were completed and possession of the aforesaid flat was handed over to Sh. Sohan Lal.
Suit no.226/11 7/40Thereafter on the basis of GPA, agreement to sell, receipt executed by Sohan Lal in favour of plaintiff, a conveyance deed dated 19.01.2000 Ex. PW-1/10 was executed by DDA in favour of Harvinder Singh.
15 During cross-examination PW-2 deposed that he has no personal knowledge and has made statement on the basis of the record brought by him. He admitted that allotment in the name of Sohan Lal was subsequently cancelled. He also admitted that conveyance deed was executed after cancellation of allotment in the name of Sohan Lal. He volunteered that cancellation was restored. He denied that conveyance deed was executed before restoration of the allotment in the name of the Sohan Lal. He admitted that defendant had also filed documents to seek conveyance deed in respect of the same flat in his name. He denied that plaintiff in connivance with DDA officials got conveyance deed registered in his name. He cannot say as to why the conveyance deed was not registered in the name of the defendant despite production of the relevant document. The defendant never filed any objection against execution of conveyance deed in favour of plaintiff. He admitted that Mr. Sohan Lal had filed letter for cancellation of conveyance deed alongwith document such as agreement to sell, will, receipt, GPA filed by the plaintiff vide letter dated 24.4.2000. He further deposed that original allottee has sent legal notice dated 21.02.2003 to the department. The allotment of the suit flat in favour of original allottee Mr. Sohan Lal on 13.01.1986 which was subsequently restored under the orders of Commissioner Housing dated 07.02.1999 as per Amensty Scheme. He further stated that Mr. Sohan Lal filed application for restoration of the flat on 4.6.1992. He admitted that letter dated 4.6.92 is only photocopy and also does not bears stamp of the department. He denied that Sohan Lal had filed application dated Suit no.226/11 8/40 21.11.2002 for restoration of the flat in dispute. He admitted that photocopy of Agreement to Sell, GPA, Will, Affidavit, receipt dated 27.01.92 exists on the official record brought by him executed by original allottee Sohan lal in favour of one Sh. Jagmohan. He admitted that same set of documents dated 16.02.96 were executed by said Mr. Jagmohan in favour of wife of defendant. He admitted that plaintiff had submitted a letter dated 11.08.2000 alongwith the relevant documents and also the possession letter of scooter garage. He also denied that as per the record defendant is in physical possession of the suit flat.
16 The plaintiff has also examined Sh. Paramjeet Singh, Zonal Inspector, MCD, as PW-3 who brought the record of mutation in favour of the plaintiff as Ex. P1.During cross-examination PW-3 deposed that he has no personal knowledge about Ex. P1. As per record defendant had filed objection vide letter dated 28.02.2001 to the mutation claiming himself to be the owner of the suit property. The said letter is Ex. PW-3/D1. As per physical inspection carried out by the MCD, defendant was found in physical possession of the suit property. No ownership document of suit property was filed by defendant despite letter dated 5.3.2001 by MDC. He denied that no such letter was received by defendant. He also denied that despite filing of ownership documents by the defendant, the MCD in connivance with plaintiff got the property mutated in favour of the plaintiff.
17 The plaintiff has also examined Sh. Jagdish Kumar, LDC, D.C office as PW-4 who brought the original conveyance deed Ex. PW-1/10. During cross-examination said witness deposed that he has no personal knowledge about Ex. PW-1/10. He admitted that Suit no.226/11 9/40 purchaser and executant of conveyance deed is the same person. He also admitted that date of execution is. 19.01.2000 is in different ink. He volunteered that document was received as it is from DDA.
18 The plaintiff has also examined Sh. Om Parkash, UDC from Sub-Registrar, Kashmiri Gate as PW-5 who brought the record of GPA, SPA, will dated 18.8.1997 and exhibited the same as Ex. PW-5/1 to Ex. PW-5/3. During cross-examination he deposed that he has no personal knowledge of the summoned record. He has no knowledge if the parties to this case have got other documents registered in the office on 18.08.1997. He was not posted in office on 18.8.97.
19 In order to answer the claim of the plaintiff, defendant has examined himself as DW-1 and reiterated the averment made in the written statement in his examination in chief. DW-1 exhibited the agreement to sell, affidavit, receipt , GPA, will dated 16.2.96 and receipt dated 11.12.91, dated 27.01.92, agreement to sell, affidavit, Indemnity Bond, SPA, Agreement to appoint Arbitrator dated 27.1.92, receipt dated 30.12.91 and 12.01.92 as Ex. DW-1/1 to Ex. DW-1/15.
20 During cross-examination DW-1 briefly deposed that he is occupying the suit property for the last 13 years. The approximate market value of the suit property may be around 40 or 50 lacs as on date. He has no idea about the rent value of the similar property in the same locality. He does not know and, therefore, cannot say that similar property would fetch rent about Rs. 40,000/- approximately. He further deposed that DDA has allotted this flat originally to Sohan Lal Sethi and provisional letter of allotment was issued in his favour. He had deposited some charges with DDA pertaining to suit property Suit no.226/11 10/40 but he does not remember what those charges were. He further deposed that DDA has never raised any demand over him for deposit of the charges. In the records of MCD the property continuous to be in favour of Sohan Lal Sethi as he think. He denied that in the records of MCD the property is mutated in the name of the plaintiff. He further deposed that plaintiff told him once that property has been converted into free hold. He volunteered that it was by dishonest measures. He has filed objection with DDA in this regard. He did not file any objection in the office of MCD as he is paying the property tax for the last 13 years continuously. He denied that property has been converted into free hold in favour of plaintiff by DDA after scrutiny of all the documents. He denied that contents of Para 5 to 9 of his affidavit of evidence is beyond pleadings. He also denied that property has been sold by Sohan Lal Sethi to plaintiff on 18.8.97 through registered GPA, Agreement to sell, will etc. He volunteered that Sohan Lal Sethi has filed affidavit to DDA that papers furnished by plaintiff therein are not correct. He denied that after Sohan Lal Sethi had sold the property to plaintiff he had introduced the plaintiff to him and he handed over the garage of the suit property to the plaintiff. He deposed that he purchased the suit property in the year 1996 and occupying the same since then. He does not remember exactly but there was something like that Sohan Lal Sethi had applied to the DDA for restoration of the property which was restored to him. He denied that thereafter DDA converted the property into free hold in favour of plaintiff. He volunteered that the allotment was cancelled to Sohan lal Sethi because he failed to make the payment to DDA after which they had contributed and the property was restored to the Sohan Lal Sethi. He has not produced any receipt on record to show that he has contributed towards deposit made to the DDA. He volunteered that it was receipt of Rs. 90,000/-. He denied that he never contributed any Suit no.226/11 11/40 amount to the deposit made to the DDA. He denied that his status in the property is that of trespasser. He denied that he has no right to occupy the suit property. He volunteered that he had paid the market value at that time which was approximately Rs. 11 lacs to Jag Mohan Singh who handed over the property to him. He denied that he do not have valid legal documents conferring title of the suit property in his favour. He also denied that he is a illegal occupant in the suit property and or that thus he is liable to pay damages @ Rs. 12,000/- per month for unauthorized use and occupation of the suit property. He admitted that his wife expired in October, 1997. He denied that Sh. Jag Mohan Singh had never have any rights in the suit property and hence could not have executed the alleged documents in his favour. He denied that he has manipulated, manufactured, fabricated the documents relied upon by him with the sole motive to grab the suit property. He denied that plaintiff is absolute real owner of the suit property and or is entitled to decree.
21 I have heard both the ld. Counsel for the parties and perused the pleadings, evidence and documents placed on record. My issue wise findings is as under:-
22 Issue No. 1: Whether the suit is barred by limitation? OPD The defendant has pleaded in para 3 of preliminary objection that suit filed by the plaintiff is hopelessly barred by limitation. The plaintiff has controverted the said plea in the corresponding para of the replication.
23 Ld. counsel for the defendant contended that the suit filed by the plaintiff is barred by limitation because Sh. Sohan Lal Sethi, the original allottee had sold the suit flat to Sh: Jagmohan Singh vide agreement to sell,affidavit,indemnity bond,SPA and agreement to Suit no.226/11 12/40 appoint Arbitrator, receipt dt.27.01.1992 Ex. DW-1/8 to Ex. DW-1/13. He further contended that defendant has purchased the suit flat from Sh. Jagmohan vide agreement to sell, affidavit, receipt, GPA Ex. DW-1/2 to Ex. DW-1/6 dated 16.02.1996 and has received the actual physical possession of the suit flat. He further contended that defendant is in possession of the suit premises as an owner since then. He further contended that, plaintiff , if got any cause of action for filing the suit for declaration and possession,it accrued to him on 27.01.1992 when Sh. Sohan Lal Sethi sold the suit flat to Sh. Jag Mohan, and the suit could have been filed within 12 years from said date but this suit has been filed beyond the period of 12 years from that date, therefore, same is barred by limitation.
24 Per contra, ld. counsel for the plaintiff contended that suit filed by the plaintiff is well within limitation. He contended that defendant was occupying the suit premises as a licencee of Sh:
Sohan Lal as conveyed by Sh. Sohan Lal. He further contended that defendant himself sought time to vacate the suit flat on or before 01.4.1998 but despite his assurance he failed to vacate the suit premises. As per the plaintiff present suit has been filed within 12 years from the accrual of cause of action as required under the law.
He further contended that cause of action for seeking the relief of declaration has accrued to the plaintiff first time when plaintiff was served in suit being CS No. 400/03 filed by defendant claiming himself to be the owner of the suit property on the basis of certain documents. He further contended that a suit for declaration as per Article 58 of Limitation Act can be filed within three years from that date, same is thus, within the period of limitation.
25 The plaintiff has filed the present suit for declaration, Suit no.226/11 13/40 possession, recovery of Mesne profit and permanent injunction on the ground that he is the owner of the property and defendant was occupying the said premises at the time when he purchased the same from the original allottee Sh. Sohan Lal Sethi, who informed the plaintiff that defendant was his licensee. As per the plaintiff, defendant had assured him to deliver the possession of the suit premises but subsequently he failed to deliver the same, therefore, occupation of the defendant is unauthorised w.e.f. 1.4 1998 and plaintiff is entitled for recovery of the possession.
26 A suit for declaration filed by the plaintiff is governed by Article 58 of Limitation Act which reads as under:
Description of suit Period of limitation Time from which period begins to run Art. 58 To obtain any other Three years When the right to sue declaration first accrues
27 The plaintiff has also sought the relief for possession and Mesne Profit on the basis of his title and not on the ground that he was disposed by the defendant. A suit for possession based on title is governed by Article 65 of the Limitation Act 1963 which reads as under:-
Description of Suit Period of Time from
Limitation which period
begin to Run
Art. 65
For possession of Twelve When the
immovable property possession of the
or any interest therein defendant become
based on title adverse to the
plaintiff
28 A perusal of Art. 58 and 65 of the Act shows that as per
Article 58 ,a suit for declaration can be filed within three years from Suit no.226/11 14/40 the date when the right to sue first accrue and as per Art.65, a suit for possession based on title can be filed within 12 years from the date when the possession of the defendant has become adverse to the plaintiff.
29 The plaintiff has filed the present suit on the ground that Sh. Sohan Lal Sethi informed him that defendant was in possession of suit flat as licensee. Sh. Sohan Lal while selling the suit flat also assured the plaintiff that he had already spoken to defendant who had agreed to vacate the suit flat as and when plaintiff would approach him. The plaintiff further pleaded that he alongwith Sh. Sohan Lal approached the defendant with a request to hand over the vacant possession, Initially defendant resisted but after perusing the documents, he sought time to vacate the suit flat on or before 01.04.1998. The plaintiff has further taken a plea that the occupation of the defendant in the suit premises was of licensee but despite assurance he has failed to vacate the suit premises and filed a false and frivolous suit against the plaintiff claiming himself to be the owner of the suit. As per the plaintiff the defendant is in unauthorised occupation of the suit premises w.e.f 01.04.1998.
30 An examination of the pleadings and evidence led on record reveals that plaintiff has filed the suit for possession on the ground that defendant was occupying the suit premises as a licensee as disclosed by the original allottee Sh. Sohan Lal to the plaintiff while entering into agreement to sell dated 18.08.1997 Ex.PW1/1. The defendant has controverted the said plea in his written statement.
31 The plaintiff is required to prove that defendant was occupying the suit property as a licensee of Sh. Sohan Lal Sethi at the Suit no.226/11 15/40 time when he entered into an agreement to sell. He is further required to prove that defendant has assured him to hand over the possession of the suit premises on or before 1.4.1998. The plaintiff however has not led any evidence whatsoever on record which can show or suggest that Sh. Sohan Lal had conveyed him that defendant was occupying the suit premises as his licensee or that defendant had assured him that he would vacate the suit premises by 01.04.1998.
32 As per the plaintiff Sh. Sohan Lal, informed him that defendant was occupying the suit premises as his licensee while entering into the agreement to sell. The plaintiff could have proved the said plea by examining Sh. Sohan Lal as witness in this case. Sh:
Sohan Lal was the most vital witness who could have proved the above plea but plaintiff has failed to examine Sh. Sohan Lal for the reason best know to him. The plaintiff has also not placed any other material on record which can substantiate his above plea. Moreover when defendant was under cross-examination as DW1, plaintiff has not confronted DW-1 that he was occupying the suit premises as licensee of Sh. Sohan Lal or that he assured the plaintiff to vacate the suit premises on or before 01.04.1998.
33 The plaintiff has thus not placed any material on record which can show or suggest that defendant was occupying the suit premises as licensee or that he ever assured the plaintiff that he would vacate the suit premises on or before 1.4.1998. The plaintiff has also neither confronted the defendant nor carried out any cross- examination of DW-1 on these aspects. In the absence of above, the plea of the plaintiff that defendant was occupying the suit premises as licensee or that defendant assured the plaintiff that he would vacate the suit premises on or before 01.04.1998 remained un-substantiated and unproved.
Suit no.226/11 16/4034 The defendant has claimed that he is the owner of the flat in question which he purchased from Sh. Jag Mohan Singh after paying consideration amount. To substantiate his claim, defendant has examined himself as DW-1 and made relevant averment in this regard in para 5, 7, 8, 9 & 22 of his examination in chief. The DW-1 has been throughly cross-examined by the ld. counsel for the plaintiff but his testimony made in above paras has not been controverted by the plaintiff. The plaintiff has not given any suggestion to DW-1 that Sh. Sohan Lal Sethi has not sold the suit flat to Sh. Jag Mohan Singh at any point of time. He has further not been given any suggestion that Sh. Jag Mohan Singh never sold the suit property to him. The plaintiff has also not given any suggestion that documents relied upon by the defendant were not executed by Sh. Sohan Lal Sethi, the original allottee. In the absence of any cross-examination or confrontation of DW-1 on all these aspects, the plaintiff deemed to have admitted the testimony of DW-1 on these aspects.
35 The Ld. counsel for the plaintiff contended that defendant though claimed himself as owner evasively in the written statement but has failed to make any specific pleadings in that regard. He further contended that defendant has examined himself as DW-1 and filed his affidavit by way of examine in chief but the averment made in para 4 to 13 of his affidavit is beyond the pleadings and is inadmissible in law.
36 Per contra ld counsel for the defendant has contended that defendant has made necessary pleading with regard to his plea and he was not required to plead evidence in the pleading.
37 It is well settled law that any evidence which is led beyond Suit no.226/11 17/40 the pleadings is in-admissible in law and cannot be taken into consideration. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings.
38 The Hon'ble Supreme Court of India in "Syeed Dastagir Vs T.R. Gopal, AIR 1999, SC 2002 has held that " In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, some times vague but still could be gathered what he wants to convey through only by reading the whole pleading, depends on the person drafting a plea. In India most of the pleas are drafted by counsels hence aforesaid difference of pleas which inevitably differ from one to other. Thus, to gather true spirit behind a plea it should be read as a whole".
39 In view of the above, it is amply clear that in order ascertain the pleadings, the court has to see the pith and substance of the pleadings put forth by the parties and the pleading should be read as a whole. The defendant has averred in para 7 of the written statement that he is absolute, actual, real owner of the suit property and enjoying the physical possession of the suit property since 1996. In para 16 of the written statement, the defendant has averred that, "
Suit no.226/11 18/40Para 16 of the plaintiff is wrong and denied to the extent that the documents executed in favour of the defendant are unregistered documents and are inadmissible in law".
40 A perusal of para 16 of the written statement clearly shows that defendant has admitted the content of para 16 of the plaint except to the contents which relates to inadmissibility of the documents . Thus by implication the contents of para 16 of the plaint have become part and parcel of the written statement filed by the defendant .
41 The purpose of the pleadings is that the party must be aware about the plea being taken by his opposite party and should not be taken by surprise. As a matter of fact, plaintiff is well aware about the case of the defendant because he himself has pleaded the same in para 16 of the plaint which has not been disputed by the defendant in the corresponding para of the written statement. When plaintiff is aware about the plea of the defendant then he cannot be allowed to contend that the plea regarding purchase of the suit property by Sh. Jagmohan from Sh. Sohan Lal Sethi and by defendant from Jag Mohan is beyond the pleading.The said contention of Ld counsel of the plaintiff is accordingly rejected.
42 The Ld. counsel for the plaintiff further contended that document relied upon by the defendant cannot be taken into consideration as these documents have not been executed by both the parties and contain the signatures of only one of the parties. A perusal of documents Ex. DW-1/2 to Ex. DW-1/14 shows that these documents have been signed by the vendor and has not been signed by the vendee. The question is as to whether the documents signed by the vendor can be said to be executed properly or not.
Suit no.226/11 19/4043 The Hon'ble Supreme Court of India in in Aloka Bose vs Parmatma Devi & others reported as AIR 2009 SC 1527, has held that, " All agreements of sale are bilateral contract. However, such agreements need not be signed by both parties. Agreement of sell signed by vendor is valid and enforceable by purchaser. Draftsman who prepared agreement using the format intended for execution by both vendor and purchaser. However, manner in which party proceeded clearly demonstrating that it was intended to be executed by vendor alone.
Agreement thus signed by the vendor was enforceable".
44 The above judgment of the Hon'ble Supreme Court of India clearly shows that agreement to sell signed by the vendor alone is enforceable in law. Thus the contention of ld. counsel for the plaintiff that these documents cannot be taken into consideration cannot be accepted.
45 The defendant has taken a plea that he purchased the suit property from Sh. Jag Mohan Singh S/o Sh. Kartar Singh by way of agreement to sell, affidavit, receipt, GPA, will of dated 16.2.1996 Ex. DW-1/2 to Ex. DW-1/6 after paying valuable consideration and received physical possession of the same. He further pleaded that Sh. Jag Mohan Singh, his predecessor in interest, had purchased the suit flat from Sh. Sohan Lal vide agreement to sell, affidavit, Indemnity Bond, SPA dated 27.01.1992 Ex. DW-1/9 to Ex. DW-1/12. The plaintiff has not disputed the execution of these documents by Sh. Sohan Lal either in plaint or in evidence. The only objection of the plaintiff qua these documents is that these documents are unregistered and inadmissible under the law.
Suit no.226/11 20/4046 A perusal of the documents Ex. DW-1/2 to Ex. DW-1/14 shows that Sh. Sohan Lal Sethi had not only executed an agreement to sell Ex. DW-1/9 in favour of Sh. Jag Mohan Singh with respect to the suit flat but he had also executed all other relevant documents in order to transfer his interest in the suit flat after receiving sale consideration from Sh. Jag Mohan Singh. A careful Scrutiny of these documents shows that Sh. Sohan Lal had transferred all his rights available with him with respect to the suit flat in favour of Sh. Jag Mohan Singh by way these documents. On the basis of these documents, sh. Jagmohan Singh claimed himself as owner of the suit flat from the date of the execution of these documents.
47 The defendant has also placed on record, agreement to sell, affidavit, receipt, General Power of Attorney, Will dated 16.2.1996 Ex. DW-1/2 to Ex. DW-1/6 executed by Sh. Jag Mohan Singh in favour of the wife of defendant. Vide these documents Sh Jagmohan Singh has transferred all his interest in the suit flat in favour of Smt. Sneh Bhatnagarj W/o of defendant and also handed over the possession of the same. The defendant and his wife thus stepped into the shoes of Sh. Jag Mohan Singh, who purchased the suit flat from Sh. Sohan Lal vide documents dated 27.01.1992.
48 The aforesaid fact thus clearly shows that Sh. Sohan Lal Sethi, the original allottee of the flat in question, had transferred the suit flat by executing necessary documents in favour of Sh. Jag Mohan Singh, the predecessor in interest of the defendant on 27.01.1992. Sh. Jag Mohan Singh started claiming himself owner of the suit property from the date of execution of these documents. The said claim of the predecessor in interest of the defendant was open, adverse and hostile to Sh. Sohan Lal, who subsequently executed Suit no.226/11 21/40 agreement to sell dated 18.8.1997 Ex. PW-1/1 in favour of the plaintiff, on the basis of which plaintiff has got executed Conveyance Deed Ex. PW-1/10.
49 Ld. counsel for the plaintiff contended that documents relied upon by the defendant in support of his claim are un-registered documents and can not be taken in to consideration as these are inadmissible in law. No doubt that documents relied upon by the defendant are un-registered. It is also not in dispute that an immovable property of the value of Rs. 100 or more can only be transferred by a registered sale deed as per Section 54 of Transfer of Property Act. But fact remains that Sh. Sohan Lal, the original allottee had transfered the said flat by executing necessary documents prevailing at that time in favour of the predecessor in interest of the defendant on 27.01.1992. These documents of transfer may not be in accordance with the law, but on the basis of these documents Sh. Jag Mohan Singh, predecessor in interest of the defendant, started claiming himself as owner of the said flat w.e.f 27.1.92. The said claim of Sh. Jag Mohan, the predecessor in interest of defendant was open hostile and adverse to the interest of Sh. Sohan Lal. But, neither Sh. Sohan Lal nor the plaintiff has taken any steps to obtain the possession either from Sh. Jag Mohan or from the defendant since 27.01.92 till the filing of the present suit 50 The Hon'ble Supreme Court of India in Collector of Bombay Vs Municipal Corporation of City of Bomaby, reported AIR 1951, SC 469 has held that, "the position of the respondent Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity Suit no.226/11 22/40 and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant".
51 The said view again reiterated by the Hon'ble Supreme Court in State of West Vs Dalhousie Institute Society reported of 1970 Supreme Court, 1778 where it was held that the that a person in possession under an invalid grant acquired title by adverse possession.
52 The Hon'ble Supreme Court of India in "Bondar Singh Vs Nihal singh"reported as AIR 2003, SC 1905 has held, that " Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear in law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes.
53 The above legal preposition clearly shows that the documents relied upon by the defendant though unregistered but can be seen for collateral purposes. The collateral purpose in the instant case would be the nature of the possession of the predecessor in interest of the defendant. A perusal of the documents relied upon by the defendant clearly shows that defendant and his predecessor in interest have been the possession of the suit property in their own right since 27.01.1992. The possession of Sh. Jag Mohan as well as of defendant, if not of an owner, then in all probabilities, it was adverse and hostile possession against the plaintiff and his predecessor in interest ie Sh. Sohan Lal.
Suit no.226/11 23/4054 The plaintiff has filed the present suit for possession on the basis of his title. The present suit as per Article 65 of Limitation Act can be filed within 12 years from the date, when defendant started claiming interest adverse to the interest of the plaintiff. In the instant case defendant and Sh. JagMohan Singh, his predecessor in interest, started claiming themselves as owner of the suit flat w.e.f 27.01.1992, the above claim of Sh: Jagmohan as well as of defendant is open, adverse and hostile to the interest of Sh. Sohal Lal,Predecessor in interest of plaintiff, as well as of plaintiff.
55 The plaintiff or his predecessor in interest thus got cause of action for filing the suit for possession under Articel 65 of Limitation Act on 27.01.1992. The present suit could be filed within 12 years from that date i.e up to 27.01.2004. But same has been filed by the plaintiff on 16.02.2005 i.e after the expiry of 12 years from the date. The suit is thus clearly barred by limitation.
56 In view of the above facts and circumstances, I am of the considered view that defendant has proved on record that his predecessor in interest has come in possession of the suit premises on the basis of the documents Ex. DW-1/7 to 14 executed by Sh. Sohan Lal, The defendant has also proved on record that his predecessor in interest started claiming himself as owner of the flat in question from the date of execution of these documents i.e w.e.f 27.01.92. The said claim of the predecessor in interest of the defendant was adverse to the claim of ownership of Sh. Sohan Lal or the plaintiff herein who stepped into the shoes of Sh. Sohan Lal.The defendant has also proved on record that he purchased the suit flat from Sh. Jag Mohan vide document Ex. DW-1/2 to Ex. DW-1/6 and acquired actual physical possession. The defendant has thus stepped Suit no.226/11 24/40 into the shoes of Sh. Jag Mohan Singh who started claiming himself as owner of the suit flat w.e.f 27.01.92. The plaintiff or his predecessor in interest Sh. Sohan Lal has thus got cause of action for filing the suit for possession and declaration against the defendant or his predecessor in interest on 27.01.92. The suit for possession as per Article 65 of Limitation Act can be filed within 12 years from that date and a suit for declaration as per under Article 58 of Limitation Act can be filed within three years from that date, thus the suit for possession with respect to suit flat could have been filed up till 27.01.2004. whereas suit for declaration could have been filed up to 27.01.95. But present suit has been filed by the plaintiff on 26.2.2005 i.e after the expiry of 12 years from the date of accrual of cause of action for filing the suit for possession as well as declaration, same is thus barred by limitation. The defendant has thus successfully discharged the onus of issue no. 1, same is accordingly decided in favour of the defendant 57 Issue no. 2: Whether the suit is bad for non-joinder of necessary parties? OPD The defendant has taken a plea that suit is bad for non- joinder of necessary parties as plaintiff should have join DDA and Sohan Lal as necessary party in the suit. The plaintiff has controverted the said plea in the corresponding para of the replication.
58 The plaintiff has filed the present suit against the defendant on the ground that plaintiff is the owner of the premises in question and defendant is unauthorised occupant. The plaintiff has thus filed a suit based on his title. The defendant sought to raise a plea that DDA and Sh. Sohan Lal Sethi is the necessary parties in the instant suit. But, defendant has failed to state as to how and in what manner DDA and Sh. Sohan Lal Sethi are the necessary and proper Suit no.226/11 25/40 party in the instant suit. The plaintiff has not claimed any relief either against the DDA or Sh. Sohan Lal Sethi and the relief claimed in the suit can easily be granted in their absence.
59 In view of the above facts and circumstances, I am of the considered view that DDA and Sh. Sohan Lal Sethi is not necessary parties for the adjudication of the dispute involved in the suit, therefore suit is not bad for non-joining of these person. The defendant has failed to prove on record that suit is bad for non-joinder of necessary parties. The defendant has failed to discharge the onus of issue no. 2, same is accordingly decided against the defendant.
60 Issue No. 3 : Whether the suit filed by plaintiff property valued for the purpose of jurisdiction? OPD The defendant has taken a plea that plaintiff has not valued the suit properly and on this ground itself suit be dismissed. The plaintiff has controverted the said plea in the corresponding para of the replication.
61 The plaintiff has fixed the market value of the suit premises as Rs. 12 lacs for the relief of possession and paid the requisite court fees. He has also valued the suit separately for declaration, injunction and mesne profit and paid the requisite court fees. The defendant has simply taken a objection that suit has not been properly valued. But defendant has not pointed out any deficiency in the said valuation nor he has placed on record any material to suggest that the market value of the suit property is more than 12 lacs as affixed by the plaintiff.
62 In the absence of any material on record in this regard, I am of the considered view that defendant has failed to prove on record Suit no.226/11 26/40 that plaintiff has not valued the suit properly for the purpose of jurisdiction. The defendant has thus failed to discharge the onus of issue no. 3, same is accordingly decided against the defendant.
63 Issue no. 4: Whether the defendant is lawful occupant of the suit premises? OPD Issue no. 5: Whether the plaintiff is entitled for decree for declaration, possession & permanent injunction?
OPP Issue no. 4 & 5 are taken together as they are inter- connected. The plaintiff has taken a plea that he purchased the suit flat from Sh. Sohan lal Sethi, the original allottee , vide agreement to sell, registered GPA, SPA, Will and receipt dated 18.8.1997. Thereafter he applied for restoration of the lease and deposited the requisite amount with the DDA. The suit flat was converted from lease hold to free hold and a Conveyance Deed has been executed by the DDA in favour of the plaintiff which was got registered on 20.01.2000 thus plaintiff has become the owner of flat in question. As per the plaintiff, defendant is un-authorised occupant of the suit premises and he has failed to hand over the possession despite various requests and assurance.
64 The defendant has taken a plea that he is the owner of the flat in question which he purchased vide agreement to sell, GPA, Receipt, Will, affidavit dated 19.02.96 from Sh. Jag Mohan Singh who purchased the same vide similar documents dated 27.01.92 from Sh. Sohan Lal Sethi, the original allottee. As per the defendant he is in possession of the suit premises in his own right and his possession is protected as per Section 53-A of Transfer of Property Act. 65 Both the parties have led their respective evidence in support of their respective plea.
Suit no.226/11 27/4066 ld. counsel for the plaintiff contended that plaintiff is the owner of flat in question on the basis of the Conveyance Deed Ex. PW-1/10. He further contended that defendant has no right to retain the possession of the flat in question because documents relied upon by the defendant are in admissible in law. Ld. counsel for the plaintiff relied upon judgment of Hon'ble Supreme Court of India titled Suraj Lamp and Industries Pvt Ltd Vs State of Haryana and others reported as JT 2011 ( 12) SC 564.
67 Per contra, ld. counsel for the defendant contended that defendant is in possession of flat in question in his own right. He further contended that Sh. Sohan Lal had left with no right, title or interest in the flat in question after executing documents in favour of Sh. Jag Mohan Singh. He further contented that plaintiff has not acquired any right, title or interest in the suit property,therefore, he cannot recover possession from the defendant. Ld. counsel for the defendant further contended that possession of the defendant is protected under Section 53-A of Transfer of Property Act as he was given possession pursuant to the agreement to sell. Ld. counsel for the defendant has relied upon a judgment of Hon'ble Delhi High Court titled as Hardip Kaur Vs Kailash & Anr. Reported as 193 ( 2012) DLT 168.
68 This is a peculiar case in which both the parties are claiming themselves as owner of the flat in question. Both of them are claiming that they have purchased the flat in question from the original allottee by paying due consideration. Sale of immovable property has been defined in Section 54 of the Transfer of Property Act which reads as under:-
54." Sale" defined- 'Sale" is a transfer of Suit no.226/11 28/40 ownership in exchange for a price paid or 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 unwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
69 As per Section 54 of Transfer of Property Act title of an immovable property of the value of Rs 100 or more can only be transferred through a registered sale deed. A contract for sale of immovable property is a contract that a sale of such property shall take place on terms stipulates between the parties. It does not in itself crate any interest in such property. An agreement to sell is not an executed contract but an executory contact. It does not create any right in the property itself but it only confers a right to the party in whose favour it is to seek the enforcement of such agreement through the court of law.
70 The claim of the plaintiff is that he has purchased the property from the original allottee Sh. Sohan lal Sethi vide agreement to sell dated 18.8.97. He also executed a registered power of attorney Ex. PW-1/2, registered SPA Ex. PW-1/3, Will Ex. PW-1/4 and receipt Ex. PW-1/5. After the execution of these documents, plaintiff sought conversion of the suit flat from lease hold to free hold and the DDA executed a Conveyance Deed Ex. PW-1/10 with respect to the suit flat Suit no.226/11 29/40 in his name. Thus plaintiff has claimed ownership of the flat in question on the basis Conveyance Deed Ex. PW-1/10.
71 The defendant on the other hand pleaded that Sh. Sohan Lal Sethi had already transferred the flat in question in favour of Sh. Jag Mohan vide agreement to sell, affidavit, Indemnity Bond, SPA and receipt dated 27.1.92 Ex. DW-1/9 to Ex. DW-1/14 and Sh. Jag Mohan Singh who subsequently sold the said flat vide documents Ex. DW-1/2 to Ex. DW-1/6 in favour of the defendant. As per the defendant, Sh. Sohan Lal has left with no right, title or interest in the flat in question after execution of these documents which could have been transferred in favour of the plaintiff.
72 The defendant has sought to claim ownership in the flat in question on the basis of the documents like, agreement to sell, GPA, receipt etc stated to have executed by Sh. Sohan Lal Sethi in favour of Sh. Jag Mohan Singh and similarly by Sh. Jag Mohan Singh in favour of defendant. But none of the documents relied upon by the defendant are registered and all these documents are notarised.
73 Section 17 of the Registration Act enumerates various documents which are compulsory registerable. Clause[B]of Section 17 (1) says:-
(b) other non-testamentary instruments which purport or operate to crate, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upward, to or in immovable property;
74 A perusal of clause B of Section 17 (1) of the Registration Act clearly shows that an instrument which purport to operate or crate Suit no.226/11 30/40 any right, title or interest in the property of the value of hundred rupees or more is mandatory registerable instrument and if same is not registered it cannot be acted upon. Thus the transfer of an immovable property of the value of Rs. 100 or more can only be effected through registered documents.
75 The defendant has taken a plea that Sh. Jag Mohan Singh had purchased the suit flat from Sh. Sohan lal Sethi vide agreement to sell, GPA, SPA, receipts etc, for a total sale consideration of Rs. 6,50,000/- thus the value of the flat in question was more than Rs. 100 at that time, therefore, the said flat could have been transferred only through registered instrument and not otherwise. Similarly, defendant has also claimed that he purchased the flat in question from Sh. Jag Mohan Singh vide document like, agreement to sell, GPA, receipt, will etc for a total consideration of Rs. 11,50,000/- and paid the said consideration but the defendant has also got similar documents executed though the value of the property is more than Rs. 100 thus said transfer could have been effected through registered instrument only.
76 The Hon'ble Delhi High Court In Hardip Kaur Vs Kailash & Anr. ( Supra) has held that, " power of attorney coupled with interest is irrevocable and cannot be revoked/terminated even upon death of principal. Purchaser may not be classical owner as would be an owner under registered sale deed but surely he would have better rights/entitlement of possession than the person who is in actual physical possession".
77 The above judgment relied upon by the defendant is not Suit no.226/11 31/40 applicable because in that case the documents such as receipt, GPA and will were registered before the Sub- Registrar. Whereas in the instant case none of the documents relied upon by the defendants is registered.
78 A Division Bench of Hon'ble Delhi High court in G. Ram Vs DDA and another reported as AIR 2003 Delhi 120 has held that, " agreement to sell is not a document of transfer nor any reason of execution of a power of attorney the right, title or interest of a immovable property can be transferred.
Such a transfer can only be effected by executing a registered document as provided for under Section 54 of the Transfer of Property Act read with Section 17 of the Indian Registration Act."
79 Again in M.L. Aggarwal Vs Oriental Bank of Commerce & Others reported as 128, 2006, DLT, 407 ( DB) in para 7 of the judgment has held that, " in our opinion there is no merit in the petition. The petitioner had only produced an agreement to sell, will and power of attorney and a receipt for payment of money but these, in my opinion, do not constitute a right under Section 17 (1) of the Registration Act.
Sale of an immovable property can only be considered by a registered deed."
80 The Hon'ble Delhi High Court in Naresh Saini Vs DDA & Others, RFA , (Civil) 587 of 2011 decided on 20.12.2011 has held that, " The trial court has dismissed the suit by giving findings including of the documents dated 11.4.90 being the agreement to sell, Suit no.226/11 32/40 GPA, receipt etc cannot looked at as they are not registered documents. I may note that Hon'ble Supreme Court of India recently in the case of Suraj Lamp & Industries Pvt ltd. Vs State of Haryana and others reported as 183 ( 2011) DLT has also held that, the documents being agreement to sell, GPA etc being an endeavour to deframed public authorities and public revenue would be treated as void unless the documents have already been accepted by the public authorities i.e unless the document had already be implemented by the public authorities such type of documents is void and cannot be acted upon. Therefore, in the fact of present case the subject document dated 11.4.1990 are void and in that no ownership vested in the suit property is interested by virtue of such documents, in view of recent judgment of the Hon'ble Supreme Court in the case of Suraj Lamp & Industries Pvt Ltd Vs State of Haryana ( Supra)".
81 The Hon'ble Supreme Court of India has dealt with concept of GPA Sales in "Suraj Lamp & Industries Pvt Ltd Vs State of Haryana ( Supra)". The Hon'ble Supreme Court of India has dealt with the scope of power of attorney etc. The relevant portion of the judgment are para no. 15 & 16 which reads as under:
"Para 15: Therefore, a SA./GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M Jain V. Canara Bank 94 ( 2001) DLT 841), that the, "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of Suit no.226/11 33/40 transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law".
"Para 16. We therefore, reiterate that immovable property can be legally and lawfully transfered/conveyed only by a registered deed of conveyance.
Transactions of the nature of "GPA sales" or SA/GPA/WILL transfers do not convey little and do not amount to transfer, nor can they be recognized or valid mod of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor crate any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53-A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or 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 leasehold property. A lease cannot be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales".
82 The above pronouncement of the Hon'ble Supreme Court of India makes it absolutely clear that title in a immovable property of the value of Rs. 100 or more can only be transferred vide registered sale deed or Conveyance Deed and not otherwise. The plea of the defendant is that his predecessor in interest had purchased the suit flat from Sh. Sohan Lal Sethi, the original allottee vide agreement to sell, SPA etc dated 27.01.92 and the defendant has purchased the Suit no.226/11 34/40 said flat from Sh. Jag Mohan Singh vide similar documents in 1996. But none of the document relied upon by the defendant are registered. Nor the lease hold right of the flat in question were transferred in favour of the defendant or his predecessor in interest as per law 83 The ownership of the flat in question despite execution of these documents by Sh. Sohan Lal Sethi in favour of Jag Mohan Singh remained with Sh: Sohan Lal. Sh. Jag Mohan Singh has not taken any step to get his title matured with respect of the flat in question. Similarly defendant has also taken any step to get his title matured. The title of the flat thus continue to remain with Sh. Sohan Lal Sethi, the original allottee, who subsequently transferred the same in favour of the plaintiff vide documents like agreement to sell, GPA etc on the basis of which plaintiff got the flat in question converted from lease hold to free hold and got executed the Conveyance Deed Ex. PW-1/10 in his favour. The plaintiff has thus acquired right, title or interest in the suit property and defendant cannot be termed as owner of the flat in question on the basis of the documents relied upon by him.
84 The Ld. counsel for the defendant further contended that his possession is protected under Section 53-A of Transfer of Property Act as he got possession of the flat in question on the basis of the agreement to sell Ex. DW-1/3 and paid the consideration.
85 The Ld. counsel for the plaintiff on the other hand contended that the possession of the defendant cannot be protected under Section 53-A of Transfer of Property Act as defendant has not made any such averment in the entire written statement.
Suit no.226/11 35/4086 Section 53-A of Transfer of Property Act talks about doctrine of part performance, which 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 the possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract 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 manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred 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 contract.
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.
87 A perusal of Section 53-A of Transfer of Property Act thus clearly shows that for for seeking protection from the ejectment against the owner the transferee is required to show that there exists a written contract in pursuance of which the possession was handed over to him. To qualify for the protection of part performance it must Suit no.226/11 36/40 be shown that there is an agreement to transfer of immovable property for consideration and the contract is evident by writing, signed by a person to be done by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
88 The defendant has sought to protect his possession on the ground that he received possession pursuant to an agreement to sell. Admittedly, said agreement has not been entered into between Sh. Sohan Lal Sethi and the defendant. The said agreement was entered between Sh. Jag Mohan Singh and defendant herein. Sh. Jag Mohan Singh himself was not the owner of the flat in question but he also entered into an agreement to sell with original allottee Sh. Sohan Lal Sethi. The question which need to be considered is as to whether the defendant who has not entered into agreement to sell with the owner of the flat in question can seek protection under Section 53-A of Transfer of Property Act or not.
89 The Hon'ble Supreme Court of India in "Rambhau Namdev Gajre Vs Narain Babu Bhutra reported as AIR, 2004 SC 4342 the Hon'ble Supreme Court has held that, "Doctrine of part performance as stated in Section -53 A of the Act is a equitable doctrine which creates a bar of estoppel in favour of the transferee against the transferor. It disentitle the transferor from disturbing the possession of the proposed transferee who is in possession in pursuance of such an agreement. It has nothing to do with the ownership of the proposed transfer or who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee such a right to protect possession against the proposed vendor cannot be pressed in service against the Suit no.226/11 37/40 third party. It is the admitted case of the parties that plaintiff/respondent had entered into an agreement to sell with 'P' and who had taken possession of the suit land in part performance thereof. Sale deed had not been executed and registered in his favour.
'P' did not take any step for getting the agreement of sale specifically enforced and obtain a registered sale deed in respect of the suit land. Within a period of 2 ½ months he executed similar agreement of sale in favour of the appellant and put him in possession of the suit land. 'P' did not have any right to entered into an agreement to sell with the appellant as he was not the owner of the suit land. The appellant did not care to ascertain the title of 'P' to the suit land before entering into the transaction with him. There was no agreement between the respondent/owner and the appellant in connection with the suit land. The doctrine of part performance enshrined in Section 53- A of the Act could not be availed of by the appellant against the respondent with whom he has no privity of contract. The doctrine of part performance as contemplated by Section 53-A can by availed of only by the transferee or any person claiming under him.
The appellant not being the transferee within the meaning of Section 53-A of the Act could not invoke the equitable doctrine of part performance to protect his possession as against the respondent/owner."
90 The above legal preposition makes it clear that defendant cannot invoke Doctrine of part performance enshrine in Section 53-A of Transfer of Property Act because he has not entered into an agreement to sell with the plaintiff or Sh. Sohan Lal Sethi, the original allottee. The defendant had entered into an agreement to sell with Sh. Jag Mohan Sihgh who was not the owner of the flat in question. Thus Sh. Jag Mohan was not competent under the law to transfer the said Suit no.226/11 38/40 flat to the defendant by executing similar documents. The defendant who has obtained possession from Sh. Jag Mohan on the basis of agreement to sell, GPA etc cannot protect his possession against the owner of the flat in question by invoking Section 53-A of Transfer of Property Act.
91 In view of the above discussion my issuewise finding is as under:-
92 Issue no. 4 Whether the defendant is lawful occupant of the suit premises? OPD In view of the above facts and circumstances, I am of the considered view that defendant has not become the owner of the flat in question on the basis of the documents Ex. DW-1/2 to 15. The defendant is thus not in possession of the flat in question as a owner. The defendant has further failed to prove on record that he is entitle to protect his possession under Section 53-A of Transfer of Property Act as he has entered into any agreement to sell with Sh. Jag Mohan Singh who was not the owner of the flat in question, therefore, on the basis of the said agreement, defendant cannot protect his possession over the suit flat. The defendant is thus not in lawful possession of the suit premises. The defendant has thus failed to discharge the onus of issue no. 4, same is accordingly decided against the defendant.
93 Issue no. 5: Whether the plaintiff is entitled for decree for declaration, possession and permanent injunction? OPP In view of the above facts and circumstances, I am of the considered view that plaintiff has proved on record that Sh. Sohan Lal Sethi was the original allottee of the flat in question who transferred the said flat in his favour by executing documents such as agreement Suit no.226/11 39/40 to sell, registered GPA, SPA and receipt etc. On the basis of the same, plaintiff has got the said flat converted from lease hold to free hold and got executed a Conveyance Deed Ex. PW-1/10 in his favour. The plaintiff has thus proved on record that he has become the owner of the flat in question on the strength of Conveyance Deed Ex. PW-1/10. The plaintiff is thus entitled for the relief of declaration, possession and permanent injunction sought by him against the defendant. The plaintiff has successfully discharge the onus of issue no. 5, same is accordingly decided in favour of the plaintiff.
94 Issue no. 6 Whether the plaintiff entitled to mesene profits as claimed? OPP In view of my find on issue no. 4 & 5, I am of the considered view that plaintiff is entitled for mesne profit/damages against the defendant, but the relief of recovery of mesne profit has become barred by limitation in view of my finding on issue no. 1. Therefore, plaintiff cannot recover mesne profit/damages from the defendant being barred by limitation. Issue no. 6 is accordingly decided.
95 Relief In view of the above facts, above findings on issues, the suit filed by the plaintiff is dismissed being time barred by limitation. However, no order of cost. Decree Sheet be accordingly prepared. File be consigned to record room after due compliance.
Announced in the open court (PITAMBER DUTT)
On 31st May, 2013 Additional District Judge
Delhi
Suit no.226/11 40/40
Suit no.226/11 41/40