Delhi District Court
Vidyawanti vs Ashok Indoria on 11 March, 2013
Vidyawanti Vs Ashok Indoria
IN THE COURT OF SHRI VIRENDER KUMAR BANSAL : ADDL.
DISTRICT JUDGE (CENTRAL) 08, TIS HAZARI, DELHI
RCA no. 26/11
ID No. 02401C0400362008
Smt. Vidyawanti
W/o Late Sh. Manohar Lal,
r/o B-2/139, Sector 17, Rohini,
Delhi - 110085 ... Appellant.
Versus.
Sh. Ashok Indoria
S/o Sh. Shyam Indoria
R/o B-6/304, Sector 17, Rohini,
Delhi- 110085. ...Respondent.
ORDER
1. Present appeal has been preferred against the judgment and decree dated 20.02.2008 whereby the suit filed by Sh Ashok Indoria (hereinafter referred as plaintiff/ respondent) was decreed against Smt. Vidyawanti (herein after referred as appellant /defendant).
Plaintiff/respondent filed the suit for ejectment/ possession and recovery of damages/ mesne profits alleging that he is the owner of property i.e DDA flat no. 139 (LIG ground floor) of B- Block, Pocket-2, Sector-17, Rohini, Delhi 85 (hereinafter referred as suit property). It is alleged that Sh. Ashok Kumar s/o Sh. T. S. RCA No. 26/11 1 of 12 Vidyawanti Vs Ashok Indoria Thakur was the original allottee/owner of the suit property He sold the suit property to Smt. Shanno Devi W/o Late Sh. Moti Ram by executing the document such as agreement to sell, receipt, General Power of Attorney, Will, Special Power of Attorney, Indemnity bond and Affidavit. Smt. Shanno Devi sold the suit property to defendant/appellant. Defendant/appellant sold the suit property to the Plaintiff/respondent and executed the agreement to sell, receipt, G.P.A and Affidavit etc. on 31.01.2001. At the time of execution of the aforesaid sale documents on 31.01.2001 the defendant could not arrange alternate accommodation and therefore requested to Plaintiff/respondent to allow her to stay in the flat till the arrangement of alternate residence. It was argued that the vacant physical possession will be delivered. Symbolic possession was delivered. After one week the defendant/appellant turned dis-honest and avoided to deliver the possession on one pretext or the other. It is alleged that despite receiving entire consideration the defendant failed to deliver the vacant physical possession and also to pay the damages/mesne profits for un-authorised use and occupation of Rs. 100/- per day w.e.f. 31.01.2001 but the defendant/appellant failed to comply with the notice, hence, the suit.
2. Defendant/appellant filed the written statement alleging that the defendant never sold or transferred the suit property to the Plaintiff/respondent in fact Plaintiff/respondent in connivance with son in law of the defendant/appellant namely Sh. Vimal Vohra got RCA No. 26/11 2 of 12 Vidyawanti Vs Ashok Indoria the thumb impression of the appellant/defendant on some papers on the pretext of giving loan without disclosing her the nature of papers and now on the basis of the said papers the Plaintiff/respondent is claiming to be the owner of the suit property. It is also alleged that defendant was in no way to competent to transfer the suit property to the plaintiff as she was not the owner of the suit property because she had already sold the property to Mr. Lalit Mohan. In reply on merits it is denied that Plaintiff/respondent is the owner of the suit property. It is denied that appellant/defendant asked for some time to vacate the premises or ever delivered the symbolic possession or that she has turned dis- honest or is avoiding the delivery of vacant possession. It is also denied that appellant/defendant is in un-authorised possession or that she is liable to pay any damages.
3. Replication was filed by Plaintiff/respondent denying the averments made in the plaint and re-asserted the facts mentioned in the plaint.
4. On the basis of pleadings, the following issues were made out:
1. Whether the plaintiff is entitled for the decree of possession as prayed? OPP
2. Whether the plaintiff is entitled for any damages/mesne profits. If so for what period and at what rate? OPP
3. Whether the plaintiff is entitled for any interest in the amount of RCA No. 26/11 3 of 12 Vidyawanti Vs Ashok Indoria damages so claimed? OPP
4. Whether the plaintiff has prayed for any fraud with the defendant in obtaining the thumb impression as alleged in para 2 of the preliminary objections? OPD
5. Whether the suit of the plaintiff is not maintainable in the present form? OPD
6. Relief.
5. Thereafter the case was fixed for PE. Plaintiff himself appeared in the witness box, filed his affidavit Ex. PW1/A supporting his plaint. During the cross examination, he stated that "The consideration amount for the aforesaid transaction was to the tune of Rs. 2,50,000/- I had paid a sum of Rs. 1,00,000/- to the defendant herein on the date when the transaction was got registered in the office of Sub-Registrar, Pitampura and the rest of the amount had been paid thereafter within a period of 4-6 days, by way of cheque in the name of Smt. Vidyawant".
But in the later part of the cross examination on the same day, he deposed as under:
" In 2001, the suit property might have fetch Rs. 3,50,000/-. I had paid a sum of Rs. 3,50,000/- to the defendant towards consideration amount of the aforesaid transaction though the same amount does reflect nowhere in the documents entered into between the parties."
He has also stated that he is aware about the amount mentioned in the agreement to sell in respect of the suit property and denied the suggestion that no amount was mentioned in the RCA No. 26/11 4 of 12 Vidyawanti Vs Ashok Indoria agreement to sell and he was confronted with the document Ex. PW1/21 (agreement to sell) where no consideration amount was found mentioned. Thereafter plaintiff closed his evidence.
6. Defendant filed her affidavit Ex D-1 in evidence supporting the averments made in the written statement. During cross examination, she stated that her son Vijay Kumar was present at the time of execution of document Ex. PW1/21 to Ex. PW1/28. She stated that she cannot recollect if she had visited the Bank of Baroda, C.P and had received there a sum of Rs. 1,50,000/-, however, she admitted that she visited the office of Pitampura, Sub- Registrar for execution of documents Ex PW1/21 to Ex. PW1/28. She denied the suggestion that she has sold the property to Plaintiff/respondent.
7. Sh. Vimal Vohra was examined as DW2. He stated that these documents were got executed. During the cross examination he stated that "At the time of execution of agreement to sell G.P.A etc. by the plaintiff in favour of defendant, her son Vijay Kumar, myself and Sh. Ashok Indoria (plaintiff) had gone to the office of Sub- Registrar, Pitampura".
He denied the suggestion that plaintiff had purchased the suit property from the defendant for an amount of Rs. 3.5 lacs. He denied the suggestion that only 1,00,000/- has been shown in documents as the amount shown in earlier documents is less than RCA No. 26/11 5 of 12 Vidyawanti Vs Ashok Indoria Rs. 1 lakh , however, he admitted that defendant/appellant had received some amount by way of cheques from the account of the plaintiff from Bank of Baroda, C.P. He denied the suggestion that it was not agreed that G.P.A and agreement to sell etc. will be cancelled after the payment of Rs. 1 lakh or it was not full-fledged sell. Thereafter, defendant itself closed her evidence. Case was fixed for final arguments.
8. Ld. Trial Court after hearing the arguments decreed the suit of respondent passing a decree of possession in favour the plaintiff/respondent and also directing the appellant to pay a sum of Rs. 2,000/- per month w.e.f. 02.09.2003 onwards till the date the premises is vacated. This order is under challenged in the present appeal.
9. Notice of appeal was sent to the respondents. Trial Court record was requisitioned.
10. I have heard ld. counsel for the appellant, ld. counsel for the respondent and perused the record.
11. Ld. counsel for the appellant submitted that the Trial Court has not considered the relevant law on the aspect and passed this judgment on conjuctures and surmises. The suit of the plaintiff/respondent was based on the documents such as RCA No. 26/11 6 of 12 Vidyawanti Vs Ashok Indoria agreement to sell, G.P.A., receipt etc. He stated in the suit that the actual physical possession was never delivered to him at the time or after the execution of the documents. Therefore, as per the provisions of Specific Relief Act, the suit of the plaintiff/respondent claiming possession was not maintainable in the absence of relief for Specific Performance. Ld. counsel submitted that in the present case the relief which has been claimed is of possession only without asking for Specific Performance of the agreement to sell, therefore, the same is not sustainable in the eyes of law. Ld. counsel submitted that the agreement to sell is not a document of transfer nor by reason of execution of power of attorney the right, title or interest of immovable property can be transferred. Such a transfer can only be effected by executing registered document as provided u/Sec. 54 of Transfer of Property Act R/w Section 17 of Indian Registration Act. As per the provisions of Section 54 of the Tranfer of Property Act for creating any right, title or interest over the immovable property. The Sale Deed is must for the consideration of more than Rs. 100/- and the same should be registered u/Sec. 17 of the Indian Registration Act. But in the instant case no Sale Deed is executed, therefore, the impugned judgment is not sustainable. Ld. counsel further submitted that there is no mention of the consideration and on this aspect the witness i.e. plaintiff/respondent was also confronted. He has alleged that besides Rs. 1,00,000/- which receipt is there he has also paid Rs. 2,50,000/- but there is no document or evidence to prove and establish this fact. Onus was RCA No. 26/11 7 of 12 Vidyawanti Vs Ashok Indoria upon plaintiff/respondent that he was always willing and ready to perform his part if it is presumed that there was any such agreement which he has failed to prove, even otherwise, he cannot claim possession as there was no right created in his favour in the property by these documents. Section 53A also does not come to his rescue as possession was never delivered to him. Ld. counsel submitted that keeping in view all these facts, the judgment/decree of the Trial Court is liable to set-aside and prayed that the judgment and decree be set aside.
12. Ld. counsel for the respondent submitted that it is not denied that appellant/defendant executed the document Ex. PW1/21 to Ex. PW1/28. She has also identified her photographs and also admitted that Ex. PW1/21 to 28 were signed by her in the presence of her son Vijay Kumar. DW2 has also deposed about the execution of documents he also deposed that defendant received some amount by way of cheques from the account of plaintiff from Bank of Bardoa, C.P. Ld. counsel submitted that under the circumstances when the execution of document is not disputed, the payment is not disputed then the property stands transfered in the name of plaintiff/respondent and the defendant/appellant is left with no right whatsoever in the property. Even in the document, it was mentioned that the possession has been delivered. Infact the possession was delivered as the keys were handed over to the plaintiff/respondent but on humanitarian grounds on the request of the appellant she was RCA No. 26/11 8 of 12 Vidyawanti Vs Ashok Indoria allowed to stay in the premises for some more time so that she can make alternative arrangement but later on she became dishonest and refused to handover the possession. Ld. counsel submitted that Trial Court has considered all these facts that the property already has been transfered in the name of the plaintiff/respondent as he has already paid the entire consideration amount. The execution of documents is also not denied, therefore, plaintiff/respondent is entitled to the possession that Trial Court has rightly decreed the suit. It is prayed that appeal be dismissed.
13. After hearing the arguments and going through the record, I found that respondent is claiming his right under the documents Ex. PW1/21 to Ex. PW1/28. These documents are agreement to sell un-registered, the receipt of Rs. 1,00,000/- Ex. PW1/22, GPA which is registered document Ex. PW1/23, affidavit Ex. PW1/24, indemnity bond Ex. PW1/25, SPA Ex. PW1/26, Will Ex. PW1/27, but the witness to this Will has not been examined, therefore it cannot be said to have been proved, even otherwise, the testator is alive, therefore, there is no question to rely upon this Will, the possession letter Ex. PW1/28. However, it is submitted that the possession was not delivered as in the plaint itself it is mentioned by the plaintiff that the possession was never delivered. The Supreme Court of India in case titled as Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana, (2012)1 SCC 656, it has already been held that on the basis of un-registered documents that is agreement to sell etc. RCA No. 26/11 9 of 12 Vidyawanti Vs Ashok Indoria and on the basis of Power of Attorney, the immovable property cannot be transferred and it does not confer any right, title on the purchasers. However, Section 53A protects the right of the purchaser if the possession has been delivered to him, the condition which are required to be fulfilled before the purchaser can claim protection u/Section 53A as laid down by the Supreme Court in case titled FGP Ltd. v. Saleh Hooseini Doctor, (2009) 10 SCC 223 as under:
Section 53-A of the Transfer of Property Act has certain ingredients and, in our judgment, those are :-
(1) a contract to transfer immovable property; (2) the transfer should be for consideration; (3) the contract must be in writing; (4) it should be signed by or on behalf of the transferor; (5) the terms of the contract can be ascertained with reasonable certainty from the writing; (6) the transferee takes possession of the whole or part of the property or if already in possession continues in possession;
(7) such taking of or continuance in possession should be in part performance of the contract; (8) the transferee should do some act in furtherance of the contract; and (9) he should have performed, or be willing to perform, his part of the contract.
It is well settled principle of law that Section 53A can be used only as the defence and not to institute a suit to claim right. The Supreme Court of India in case titled Shrimant Shamrao Suryavanshi and another vs Pralhad Bhairoba Suryavanshi (dead) RCA No. 26/11 10 of 12 Vidyawanti Vs Ashok Indoria by LRs, AIR 2002 Supreme Court 960 wherein it was held :
" It is open to defendant in a suit for recovery of possession brought by the transferor to take a plea in defence of part performance of the contract to protect his possession, though, he may not been able to enforce that right through a suit or action".
In the present case, according to the evidence and documents, it is not clear as to what was the consideration amount payable by the plaintiff to the defendant as Ex. PW1/21, the agreement to sell is silent about this aspect and is also silent as to how the payment is to be made. According to the receipt, Rs. 1,00,000/- was paid to plaintiff when appeared in the witness box at one place stated that he purchased a property for consideration of Rs. 2,50,000/- which he has paid by way of cheque of Rs. 1,50,000/- but on the same day at other place he stated that he paid Rs. 3,50,000/- to the defendant towards consideration, but there is no such evidence that he has paid this amount. Even otherwise, to fall within the perview of Section 53A, it was required that he takes the possession of the property which admittedly was not delivered. Therefore, protection u/S 53A of the Transfer of Property Act is not available to him for that purpose and even otherwise as held by the apex court it can be used only as a defence and cannot be used to claim right.
14. In the present case, there is an agreement to sell, the same is un-registered, no sale documents has been executed in RCA No. 26/11 11 of 12 Vidyawanti Vs Ashok Indoria favour of the plaintiff. The defendant has though alleged that the documents were not executed but DW2 proved the execution of the documents and that the nature of the documents executed is the same as agreed but it is settled law that the agreement to sell by itself does not confer any title in the property. It was for the plaintiff to file a suit for specific performance which has not been filed. According to the well settled law, he should have filed the suit for Specific Performance firstly to get the title over the property and then seek the possession. In order to succeed in a suit for possession the person must prove that he has better title than the one who is claiming possession. Admittedly, in the present case, appellant is the owner. She entered into the agreement to sell with the respondent/plaintiff and also executed the other documents i.e. Power of Attorney, Special Power of Attorney, receipt etc. but those documents does not transfer the title of immovable property in the name of the plaintiff and hence he is not having the better title than the respondent. Under the circumstances, in view of the settled law he should have filed the suit for Specific Performance and not simply the suit for possession. Even otherwise, as there is no evidence of part performance and even if for the sake of arguments that is presumed right u/Sec. 53A can be used as defence and not to claim the right. In view of the above discussion the decree passed by the Trial Court is not sustainable. Accordingly, the Trial Court order is set aside. Appeal is allowed.
RCA No. 26/11 12 of 12 Vidyawanti Vs Ashok Indoria Copy of order along with Trial Court record be sent back.
Appeal file be consigned to record room.
Announced in the open court on 11.03.2013.
VIRENDER KUMAR BANSAL
ADDL.DISTRICT JUDGE-08
CENTRAL,DELHI
RCA No. 26/11 13 of 12
Vidyawanti Vs Ashok Indoria
11.03.2013.
Present: Counsel for the parties.
Vide separate order, the present appeal is allowed.
Copy of order along with Trial Court record be sent back.
Appeal file be consigned to record room.
VIRENDER KUMAR BANSAL
ADDL.DISTRICT JUDGE-08
CENTRAL,DELHI
RCA No. 26/11 14 of 12