Delhi District Court
S. Dalbir Singh vs Gyan Kaur on 4 November, 2024
IN THE COURT OF DISTRICT JUDGE -04,
(PRESIDED OVER BY: ANIL CHANDHEL)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLWT01-002012-2015
Civil DJ No. 610572/2016
S. Dalbir Singh
S/o Harnam Singh
R/o 5D/9, Vishnu Garden Extension,
New Delhi-110018. ...Plaintiff.
Versus
1. Gyan Kaur,
R/o 22-Block-B,
Chander Vihar,
Nilothi Extension,
New Delhi-110041.
2. Omvir Shokeen,
S/o Des Ram,
R/o Village & PO Nilothi,
New Delhi-110041. ...Defendants.
SUIT FOR POSSESSION, DAMAGES,
PERMANENT AND MANDATORY
INJUNCTION.
DATE OF INSTITUTION : 03.09.2015
JUDGMENT RESERVED ON : 25.10.2024
JUDGMENT PRONOUNCED ON : 04.11.2024
Ld. Counsel for the Plaintiff : Ms. Amita Sachdeva, Adv.
Ld. Counsel for the Defendant No.1 : Mr. Shiv Dhupia, Adv.
ANIL
Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 1 of 30 CHANDHEL
Civil DJ No. 610572/2016
Digitally signed
by ANIL
CHANDHEL
Date: 2024.11.04
16:59:07 +0530
Ld. Counsel for the Defendant No.2 : None.
JUDGMENT
1. The Plaintiff has filed the present suit for possession, damages, alongwith prayers of permanent & mandatory injunction with regard to property No. 22-A, ad-measuring 50 sq. yards (L Type) out of Khasra No. 26/18, Village & Post Office Nilohit, Delhi.
2. The facts stated in the Plaint:
The facts, as set out in the plaint, are summed up in brief in the paras hereinbelow:
i. The Plaintiff purchased the suit property, i.e., a plot bearing No. 22-A, ad-measuring 50 sq. yards (L Type) in Khasra No. 26/18, Village & Post Office Nilohit, Delhi, from the Defendant No.2 on 05.02.2010 by virtue of a GPA, an agreement to sell and purchase, an affidavit, a Will and a possession letter. The Plaintiff and his son Manraj Singh used to visit the suit property once in every month, after taking possession of the same.
ii. The Plaintiff was working as a carpenter in Dubai, and he left India in year 2004. The Plaintiff had directed his son to take care, look after and visit the ANIL CHANDHEL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 2 of 30 Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date: 2024.11.04 16:59:14 +0530 suit property in his absence. On 23.07.2015, the Plaintiff's son was informed telephonically by a property dealer, namely Trilokchand Singh, that the Defendant No. 1 along with her sons had illegally trespassed into the suit property and had starting raising construction.
iii. The Plaintiff's son immediately rushed to the spot and was shocked to find that the Defendant No.1 and her sons were present in the suit property and had raised construction by increasing the height of the wall. The property of the Defendant No.1 is adjoining to the suit property and there is a common wall between the aforesaid two properties. The Defendant No.1 had closed the previous entry gate of the suit property and has created / opened the new entry gate in the common wall of the suit property and the Defendant No.1's property.
iv. The Plaintiff's son requested the Defendant No.1 and her sons to stop the construction, who misbehaved with him and threatened him. The Defendant No.1 alleged that she had purchased the suit property from the Defendant No. 2 and the same could be enquired from the Defendant No.2.
v. The Plaintiff's son eventually made police complaints against the Defendants, however no action was taken against the Defendants,.
ANIL CHANDHEL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 3 of 30 Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date:
2024.11.04 16:59:19 +0530 Eventually the Plaintiff has filed the present suit for recovery of possession of the suit property alongwith other consequential prayers.
3. The facts stated in the Written Statement:
3.1. The Defendants were duly served with the summons of the present suit and have entered appearance. The Defendants have filed their separate written statements.
3.2. The Defendant No.1 has substantively refuted the contentions of the plaint in her written statement. The Defendant No.1 has claimed to be owner of the suit property.
3.2.1. It is stated by the Defendant No.1 in para 2 of the preliminary objections that she is the absolute owner and in possession of property bearing no. 22A, area measuring 125 sq. yds., out of total land 200 Sq. Yds. out of Khasra No.26/18, situated in the area of Village Nilothi, abadi known as Chander Vihar, Block-B, Delhi, since 1990, in terms of valid and legal documents executed by the erstwhile owner. It is stated that the Defendant No. 1 has sold an area of 25 square yards, out of aforementioned 125 square yards on 23.07.2015. It is also stated by her in para 1 of the reply on merits in the written statement that the husband of the Defendant No.1 was owner of the suit property in terms of registered documents.
ANIL CHANDHEL Digitally signed Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 4 of 30 by ANIL CHANDHEL Civil DJ No. 610572/2016 Date: 2024.11.04 16:59:25 +0530 3.2.2. The Defendant No.1 has stated in the written statement that the Plaintiff has no right, title or interest in the suit property and the present suit has been filed by the Plaintiff and Defendant No. 2 in collusion with each other. It is stated that the Plaintiff has not disclosed as to how the Defendant No. 2 became the owner of the suit property and the documents, relied upon by the Plaintiff, are forged and fabricated. It is stated that the Defendant No.1 has not trespassed into the suit property. The Defendant No.1 has denied the remaining averments of the plaint.
3.3. The Defendant No.2 has also filed his written statement and has substantively supported the case of the Plaintiff. He had admitted that the suit property was sold by him to the Plaintiff. It is stated by the Defendant No.2 that there was no common boundary wall between the suit property and the property of the Defendant No.1. The Defendant No.2 has stated that he had not sold the suit property to the Defendant No.1. He further stated that he had not trespassed or acted in collusion with the Defendant No.1. The Defendant No.2 denied that the original documents of the suit property are with him and it is stated that the original document of 100 square yards plot were lost by his brother-in-law, who was his predecessor-in-interest and he had lodged complaint about the same.
4. The facts stated in the Replication:
4.1 The Plaintiff has filed separate replications to the written ANIL CHANDHEL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 5 of 30 Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date:
2024.11.04 16:59:30 +0530 statements of the Defendant No. 1 & 2, wherein the Plaintiff has denied the averments of same. The Plaintiff has also denied the averments of the written statement of the Defendant No.2 in a routine manner, even of the parts, which support the Plaintiff's case.
5. Issues:
5.1 On the basis of the pleadings of the parties, the following issues were framed on 27.04.2017: -
i. Whether the Defendant no.1 has been in possession of the suit property since 1990 on the basis of valid and legal title documents, if so, its effect? OPD ii. Whether the Plaintiff is the owner of the suit property? OPP iii. If issue no. 2 is decided in the affirmative, whether the Plaintiff is entitled to the possession of the suit property from the Defendant no.1, as prayed for vide prayer clause (i)? OPP.
iv. Whether the plaintiff is entitled to decree of Mandatory Injunction against the defendants with respect to the suit property, as prayed for vide prayer clause (iii)? OPP v. Whether the plaintiff is entitled to decree of Permanent Injunction against the defendants with respect to the suit property, as prayed for vide ANIL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 6 of 30 CHANDHEL Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date: 2024.11.04 16:59:34 +0530 prayer clause (iv)? OPP vi. Whether the Plaintiff is entitled to decree of future damages /mesne profits @ Rs.10,000/ per month against the Defendants from the date of institution of the suit till the possession of the suit property is handed over to the plaintiff, as prayed vide prayer clause (ii)? OPD vii. Relief.
6. The Plaintiff's Evidence:
6.1 The Plaintiff has led his evidence and has examined five witnesses in support of his case. The Plaintiff has examined his son as PW-1. The PW-1 has reiterated the contentions of the plaint in his examination-in-chief. He has exhibited and relied upon the following documents in his examination-in-
chief:
i. Mark-A : Copy of complaint dated 21.08.2015. ii. Mark-B : Copy of complaint dated 21.08.2018. iii. Mark-C : Copy of postal receipts.
The PW-1 was cross-examined by Ld. Counsel for the Defendant No.1 and was discharged upon conclusion of his cross-examination.
6.2 The Plaintiff has examined himself as PW-2. The Plaintiff/PW-1 has reiterated the contentions of the plaint in his examination-in-chief. The PW-2 has exhibited and relied ANIL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 7 of 30 CHANDHEL Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date: 2024.11.04 16:59:39 +0530 upon the following documents in his examination-in-chief:
i. Ex. PW-2/1: Site Plan of the suit property. ii. Ex. PW-2/2(colly 12 pages): Copy of General Power of Attorney, Receipt, Agreement to Sell and purchase, Affidavit, Registered Will and Possession Letter, all dated 05.02.2010, executed by the Defendant No.2 in fabvour of Plaintiff.
The PW-2 was cross-examined by Ld. Counsel for the Defendant No.1 and was discharged upon conclusion of his cross-examination.
6.3. The PW-3 is ASI Rishi Raj, PS Nihal Vihar, New Delhi. He has produced the summoned record, i.e., the records of complaint made by PW-1, dated 21.08.2018, DD No. 35A at Serial No. 1772 in the complaint register. The complaint report has been exhibited as Exhibit PW-3/A. The witness has stated that he was unable to say whether any action was taken on the aforesaid complaint. The PW-3 has not been cross-examined and was accordingly discharged.
6.4. The Plaintiff has examined the official witness from the office of Sub-Registrar, Punjabi Bagh IIA as the PW-4. The PW-4 has produced the original registered Will dated 07.10.2009. The PW-4 has compared the same with the copy on record, which is Exhibit PW-4/A(OSR). The PW-4 was cross-examined by Ld. Counsel for the Defendant No.1 and was discharged upon conclusion of his cross-examination.
ANIL CHANDHEL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 8 of 30 Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date: 2024.11.04 16:59:45 +0530 6.5. The Plaintiff has examined the official witness from the office of Sub-Registrar, Rohini VI-C as the PW-5. The PW-5 has produced the original registered Will dated 11.02.2010. The PW-4 has compared the same with the copy on record, which is Exhibit PW-5/A(OSR). The PW-5 was cross- examined by Ld. Counsel for the Defendant No.1 and was discharged upon conclusion of his cross-examination.
7. The Defendant's Evidence:
7.1. The Defendant No.1 has led her evidence and has examined one witness in support of her case. The Defendant No.1 has herself appeared as DW-1 and has reiterated the contentions of the written statement in her examination in chief. The DW-1 has relied upon the following documents in her examination-in-chief:
i. Exhibit DW-1/1 (OSR): GPA dated 10.04.1990. ii. Exhibit DW-1/2 (OSR): Original Agreement to sell dated 10.04.1990.
iii. Exhibit DW-1/3 (OSR): GPA dated 03.06.1987. iv. Exhibit DW-1/4(OSR): Aadhar Card. v. Exhibit DW-1/5 (OSR): Electricity Bill dated 05.01.2024.
vi. Exhibit DW-1/6 (OSR): Original Death Certificate of husband of the Defendant No.1. vii. Exhibit DW-1/7(OSR): Money Receipt dated 10.04.1990.
ANIL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 9 of 30 CHANDHEL Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date: 2024.11.04 16:59:50 +0530 viii. Mark-A: Photocopy of affidavit of Sh. Prithi S/o Sh. Jia Ram, in favour of Ms. Pushpa Dhawan.
The DW-1 was cross-examined by Ld. Counsel for the Plaintiff and was discharged upon conclusion of her cross- examination.
7.2. The Defendant No.2 has appeared in the matter only on two occasions, i.e., on 02.02.2016 and on 26.04.2016. Subsequently, the Defendant No.2 did not appear or participate in the matter. The Defendant No.2 neither cross- examined the Plaintiff's witnesses nor led any evidence in affirmative.
8. Submissions of the Parties.
8.1. After conclusion of the evidence, Ld. Counsels for the Plaintiff and for the Defendant No.1 have addressed their arguments. Ld. Counsel for the Plaintiff has submitted that the Defendant No.1 has failed to prove the ownership and possession of the suit property since 1990, as alleged by her. It is submitted that that the Plaintiff has proved his ownership in terms of GPA, agreement to sell, Will and affidavit executed by the Defendant No.2. It is submitted that the Wills relied upon by the Plaintiffs are registered and the Plaintiff has proved the factum of registration of the same, through PW-4 and PW-5. Ld. Counsel for the Plaintiff has relied upon the judgment passed in 'Ramesh Chand Vs. Suresh Chand' by the Hon'ble High Court of Delhi. She has ANIL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 10 of 30 CHANDHEL Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date: 2024.11.04 16:59:55 +0530 further submitted that judgment passed by the Hon'ble Supreme Court in 'Suraj Lamp & Industries Vs. State of Haryana' is prospective and transaction, being subject-matter of present case is prior to the aforesaid date, in point of time. She has submitted that reliance cannot be placed upon the judgment passed by the Hon'ble Supreme Court in the case of 'Shakeel Ahmed Vs. Syed Akhlaq Hussain' as the same has been passed by the Hon'ble Division Bench, whereas the judgment in Suraj Lamp has been passed by Hon'ble Full Bench.
8.2. Ld. Counsel for the Defendant No.1 has submitted that the Plaintiff has failed to prove that he is owner of the suit property and therefore is not entitled to any of the prayers. Ld. Counsel for the Defendant No.1 has relied upon the judgment passed by the Hon'ble Supreme Court in 'Shakeel Ahmed Vs. Syed Akhlaq Hussain (01.11.2023): 2023 INSC 1016'.
9. Conclusions on Issues and reasons for such conclusions:
9.1. Issue No. 1: Whether the Defendant No.1 has been in possession of the suit property since 1990 on the basis of valid and legal title documents, if so, its effect? OPD 9.1.1. The onus to prove the Issue No.1 is upon the Defendant No.1. The Defendant No.1 has stated in para 2 of the preliminary objections to the written statement that she is the absolute owner of the suit property since 1990, in terms of ANIL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 11 of 30 CHANDHEL Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date:
2024.11.04 17:00:00 +0530 the documents executed by the erstwhile owner. It is also stated by her in para 1 of reply on merits that her husband was the owner of the suit property in terms of registered documents. In order to prove her contentions of ownership and possession, the Defendant No.1 has relied upon the following documents in her examination in chief:
i. Exhibit DW-1/1 (OSR): GPA dated 10.04.1990; ii. Exhibit DW-1/2 (OSR): Original Agreement to sell dated 10.04.1990;
iii. Exhibit DW-1/3 (OSR): GPA dated 03.06.1987.
9.1.2. The Exhibit DW-1/1 and Exhibit DW-1/2 are unregistered GPA and unregistered Agreement to Sell, whereby an area ad-measuring 125 square yards in plot no. 22A was sold by Ms. Pushpa Dhawan to Mr. Ranjeet Singh, i.e., the Defendant No.1's husband. The Exhibit DW-1/3 is the unregistered GPA dated 03.06.1987, whereby Mr. Prithi had sold an area ad-measuring 200 square yards in plot No.22 to Ms. Pushpa Dhawan.
9.1.3. Besides the aforementioned documents, the Defendant No.1 has also relied upon the following documents to show her possession:
i. Exhibit DW-1/5: The electricity Bill dated 05.01.2024;
ii. Exhibit DW-1/6: The death certificate dated ANIL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 12 of 30 CHANDHEL Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date: 2024.11.04 17:00:06 +0530 22.01.2003.
The electricity bill Exhibit DW-1/5 pertains to the year 2024 and therefore, does not show the possession of the Defendant No.1 for the previous period. The Exhibit DW-1/6 is the death certificate of the Defendant No.1's husband and the same is dated 22.01.2003. The address of the Defendant No.1's husband is mentioned in Exhibit DW-1/6 as CS-300, Plot No. 22A, Chander Vihar, Nilothi, Delhi. CS-300 is mentioned as the old Number of the suit property in the electricity Bill, i.e., Exhibit DW-1/5, however the aforesaid old number is not referable to any other reliable documents. The previous documents relied upon by the Defendant No.1 relates to plot No.22 and not to any plot No. CS-300. Therefore, there is no credible evidence on record to conclude that CS-300 is the old number of the suit property. Secondly, a death certificate is only conclusive of the factum of death of a person and may not be so conclusive about other unrelated aspects. The information furnished in a death certificate is upon the unilateral information/representation of the parties and the same cannot be relied upon as a conclusive proof of residence/possession.
9.1.4. One important aspect to be noticed here is that physical identity of the suit property is not established clearly by either of the parties. The Defendant No.1 has stated that an area of 125 square yards in the plot No.22A was sold to the husband of Defendant No.1 in the year 1990. The transaction ANIL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 13 of 30 CHANDHEL Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date: 2024.11.04 17:00:11 +0530 between the Defendant No.1's husband and Ms. Pushpa Dhawan, in terms of agreement to sell & GPA dated 10.04.1990, i.e., Exhibit DW-1/1 & Exhibit DW-1/2, pertains to plot No. 22A, ad-measuring 125 square yards. The transaction between Ms. Pushpa Dhawan and Mr. Prithi, in terms of GPA dated 03.06.1987, i.e., Exhibit DW-1/3, pertains to plot No.22, ad-measuring 200 square yards. Interestingly, the address of the Defendant No.1 is mentioned as plot No.22 in the written statement as well as in the affidavit of evidence and not as plot No.22A.
9.1.5. The Defendant No.1 was required to clearly describe the physical boundaries of the area claimed to be in her possession, by tracing the historical reference as to how did the same came to be. In view of the confusion on record, it can-not be concluded with any amount of certainty as to which part of area in Defendant No.1's possession could be said to be the suit property. It is difficult to conclude, whether the suit property, in terms of the evidence led by the Defendant No.1, is plot No.22, the plot No.22A or the plot No.CS-200. The only documents to show the possession of the Defendant No.1 since 1990 are Exhibit DW-1/1, Exhibit DW-1/2 and Exhibit DW-1/3, which have been disowned by the Defendant No.1 in her cross-examination.
9.1.6. The Defendant No.1 has stated in the cross-examination that her husband passed away 10 to 12 years ago. The aforesaid statement was made on 01.03.2024 and the death certificate ANIL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 14 of 30 CHANDHEL Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date: 2024.11.04 17:00:16 +0530 show the date of death as 22.01.2003, i.e., about 20 years ago. She has further stated that her husband had left behind two sons and one daughter. She further did not remember exactly as to when was the suit property purchased. She claims that her husband was owner in terms of registered documents, however the documents produced by her are all unregistered. In the examination in chief, the Defendant No.1 has relied upon the Exhibit DW-1/1, DW-1/2 and DW- 1/3, however in cross-examination she feigns ignorance about the same. She further states that the documents Exhibit DW-1/1, DW-1/2, DW-1/3 and DW-1/7 were not executed in her presence and she is not aware of the aforementioned documents relied upon by her. She did not even remember as to when was the electricity connection in the suit property installed. She has also stated that her husband had not left behind any Will and if that be so, the Defendant No.1 is not the only legal heir of her late husband and other legal heirs would also have the right in the same, if there was any. Thus, the contentions of being the sole and absolute owner remains to be explained.
9.1.7. Though the Defendant No.1 has stated in the cross-
examination that she has been residing in the suit property since 10.04.1990 and the aforesaid contention has not been challenged by any negative suggestion, however the aforesaid oral statement alone cannot be made basis of her possession since 1990, when she has failed to prove and establish the same in terms of Exhibit DW-1/1, DW1/2 and ANIL CHANDHEL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 15 of 30 Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date: 2024.11.04 17:00:21 +0530 Exhibit DW1/3. If the cross-examination of DW-1, alongwith the contentions and the documents relied upon by her, are read in totality, the Defendant No.1 has failed to effectively establish that she was in possession of the suit property since 1990 or from any other date previous to the date, as asserted by the Plaintiff. Accordingly, this Issue is decided against the Defendant No.1 and in favour of the Plaintiff.
9.2 Issue No. 2: Whether the Plaintiff is the owner of the suit property? OPP Issue No. 3: If Issue No. 2 is decided in the affirmative, whether the Plaintiff is entitled to the possession of the suit property from the Defendant no.1, as prayed for vide prayer clause (i)? OPP.
9.2.1. The Issue No.2 and 3 are inter connected and therefore both these Issues are being taken up for discussion together. The onus to prove the Issue No.2 and 3 is upon the Plaintiff. The Plaintiff has claimed to be the owner of the suit property. The Plaintiff has stated that he had purchased the suit property from the Defendant No.2 in terms of the following documents:
i. General Power of Attorney dated 05.02.2010, executed by the Defendant No.2 in favour of the ANIL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 16 of 30 CHANDHEL Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date: 2024.11.04 17:00:27 +0530 Plaintiff.
ii. Receipt dated 05.02.2010, executed by the Defendant No.2 in favour of the Plaintiff.
iii. Agreement to sell and purchase dated 05.02.2010, executed by the Defendant No.2 in favour of the Plaintiff.
iv. Affidavit dated 05.02.2010, executed by the Defendant No.2 in favour of the Plaintiff. v. Possession letter dated 05.02.2010, executed by the Defendant No.2 in favour of the Plaintiff.
All the aforementioned documents have been relied upon by the PW-2 as Exhibit- PW-2/2(colly) in his examination in chief. All the aforementioned documents, i.e., Exhibit PW2/2(colly), are unregistered.
9.2.2. The Plaintiff has also relied upon the registered Will dated 11.02.2010 i.e., Exhibit PW-5/A (OSR), stated to be executed by the Defendant No.2. A will comes into effect only after the death of the testator and during the lifetime of the testator does not convey/transfer any right, title or interest in the subject matter of bequest. The Defendant No.2 is still alive and therefore, the Plaintiff cannot claim any right in the suit property in terms of Will dated 11.02.2010. Therefore, the rights of the Plaintiff are only to be understood and assessed in terms of the remaining documents such as unregistered GPA, unregistered Agreement to Sell, unregistered Affidavit, unregistered ANIL CHANDHEL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 17 of 30 Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date:
2024.11.04 17:00:32 +0530 Possession Letter, i.e., Exhibit PW-2/2 (colly).
9.2.3. It is apparent from the perusal of the aforesaid documents, i.e., Exhibit PW-2/2 (colly), that the value of the immovable property sought to be transferred in terms of the documents is more than Rs.100/-. Therefore, as per Section 54 of the Transfer of Property Act, 1882, such a transfer is required to be compulsorily registered, in order to convey/confer the right, interest and title in the same.
9.2.4. The Hon'ble Supreme Court has held in, "Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana (11.10.2011) :
2011 INSC 739", that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance and the transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property.
9.2.5. Ld. Counsel for the Plaintiff has stated that the Plaintiff does not have to prove the absolute ownership in the suit property and has only to prove a better right than the Defendant No.1.
It is stated that the Defendant No.1 has failed to prove the documents relied upon by her and therefore, the better right of the Plaintiff, in terms of Exhibit PW-2/2(colly) is sufficient for seeking possession from the Defendant No.1.
9.2.6. The proposition laid down in Suraj Lamp (supra) has been ANIL CHANDHEL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 18 of 30 Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date:
2024.11.04 17:00:37 +0530 carried forward by the Hon'ble Supreme Court in "Shakeel Ahmed Vs. Syed Akhlaq Hussain (01.11.2023): 2023 INSC 1016", and the facts of the aforementioned case are also relevant to discussion at hand. In the aforesaid case, the Plaintiff has filed a suit for possession on the basis of unregistered documents. The Hon'ble High Court has decreed the suit on the ground that the Defendant has failed to prove his defence, the Plaintiff had a better title and further the Plaintiff could be construed as an attorney of previous owner. The relevant observations of the Hon'ble High Court of Delhi in "Shakeel Ahmed Vs. Syed Akhlaq Hussain:2018:DHC:5311", are being reproduced hereinbelow:
"6. Trial court has disbelieved the case of the appellant/defendant that the suit property was gifted to the appellant/defendant by his brother Laiq Ahmed. I completely agree with the reasoning and conclusions of the trial court because trial court has referred to the fact that the stand of the suit property being gifted to the appellant/defendant was taken up for the first time only in the written statement and no such case was taken up by the appellant/defendant when he gave a Reply dated 24.4.2008 (Ex. PW1/O) to the Legal Notice dated 16.4.2008 (Ex. PW1/N) sent by the respondent/plaintiff. I also agree with the trial court that the issue of Gift Deed could not be believed because in the written statement filed by the appellant/defendant there were no names which were given as to who were the relatives and the other persons present when the alleged oral gift had taken place by Laiq Ahmed to his brother/appellant/defendant. Even in his affidavit by way of evidence filed by the appellant/defendant there was complete silence as regards the persons/their names who ANIL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 19 of 30 CHANDHEL Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date: 2024.11.04 17:00:43 +0530 were present at the time of the alleged oral gift of the suit property made by Laiq Ahmed to his brother/appellant/defendant. I therefore agree with the conclusion of the trial court that appellant/defendant has failed to prove that the suit property was gifted to him by his brother.
7. Though not argued on behalf of the appellant/defendant one other issue which requires consideration is as to whether respondent/plaintiff can rely upon the unregistered documents dated 20.2.2008 being the Agreement to Sell (Ex. PW1/F), General Power of Attorney (Ex. PW1/G), Affidavit (Ex. PW1/H), Will (Ex. PW1/I), Receipt (PW1/J) in view of the Act 48 of 2001 becoming effective from 24.1.2001 and by which Act, documents such as agreement to sell cannot be looked into for conveying the title of part performance under Section 53A of the Transfer of Property Act, 1882 of the property unless the same are duly stamped and registered. Trial court in this regard has held that the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana and Anr.: 183 (2011) DLT 1 (SC) being only prospective in nature and therefore will not affect the validity of the subject documents executed in 2008, however in my opinion this reasoning is questionable, but the subject suit for possession still had to be decreed because respondent/plaintiff can definitely be said to be suing as an attorney for and on behalf of the owner Laiq Ahmed, and Laiq Ahmed is not in any manner objecting to the respondent/plaintiff taking possession of the suit property. Respondent/plaintiff therefore clearly is held to have an entitlement to take possession of the suit property, not only on behalf of the Laiq Ahmed but also because he had a better title to possession of the suit property than the appellant/defendant. This additional reasoning I am giving under Order XLI Rule 24 CPC. Trial court therefore, in my opinion, was justified in decreeing the suit for possession and mesne profits."
ANIL CHANDHEL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 20 of 30 Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date: 2024.11.04 17:00:48 +0530 However in the appeal against the judgment of Hon'ble High Court, the Hon'ble Supreme Court has disagreed with the afore-mentioned reasoning, as highlighted above. The relevant observations of the Hon'ble Supreme Court are being reproduced hereinbelow:
"9. It was also submitted that there was a prohibition of registration of documents of transfer/conveyance with respect to the area where the property in question is situate and, therefore, the transfers affected under the customary documents was sufficient to confer title on the Respondent. It was also submitted that the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. v. State of Haryana and Anr. MANU/SC/1222/2011 : 183 (2011) DLT 1 (SC), which was of the year 2011, had prospective application and would not have any bearing on the title of the Respondents which came to him under the customary documents executed in the year 2008 much prior to the judgment in the case of Suraj Lamps & Industries (supra).
10. Having considered the submissions at the outset, it is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries(supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the Respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to Sections 17 and 49 ANIL CHANDHEL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 21 of 30 Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date: 2024.11.04 17:00:53 +0530 of the Registration Act and Section 54 of the Transfer of Property Act, 1882.
11. Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Even the judgment of this Court in the case of Suraj Lamps & Industries (supra) lays down the same proposition. Reference may also be made to the following judgments of this Court:
(i) Ameer Minhaj v. Deirdre Elizabeth (Wright) Issar and Ors. : 2018:INSC:578.
(ii) Balram Singh v. Kelo Devi : 2022:INSC:10111.
(iii) M/S Paul Rubber Industries Private Limited v.
Amit Chand Mitra: 2023:INSC:8542.
12. The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered documents with respect to immovable property. Once this is the settled position, the Respondent could not have maintained the suit for possession and mesne profits against the Appellant, who was admittedly in possession of the property in question whether as an owner or a licensee.
13. The argument advanced on behalf of the Respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on non-registration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view.
14. In case the Respondent wanted to evict the Appellant treating him to be a licensee, he could have maintained a suit on behalf of the true owner or the landlord under specific instructions of Power of Attorney as landlord claiming to have been receiving rent from the Appellant or as Attorney of the true owner to institute ANIL CHANDHEL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 22 of 30 Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date:
2024.11.04 17:00:58 +0530 the suit on his behalf for eviction and possession. That being not the contents of the plaint, we are unable to agree with the reasoning given by the High Court in the impugned order.
15. For all the reasons recorded above, the impugned judgment deserves to be set aside and the suit deserves to be dismissed. Accordingly, the appeal is allowed. The impugned judgment is set aside and the suit is dismissed."
(highlighting and underlining added) Therefore, in terms of the law laid down by the Hon'ble Supreme Court of India in Suraj Lamps (supra) and in Shakeel Ahmed (Supra), the Plaintiff cannot be construed to be an owner in terms of unregistered documents relied upon by him.
9.2.7. The judgment in the Shakeel Ahmed (supra) has further been followed by the Hon'ble Division Bench of the Hon'ble Delhi High Court in "O.P. Sharma Vs. Punjab National Bank and Ors.(22.05.2024): 2024:DHC:4309-DB" to hold that customary documents in terms GPA etc. do not confer any title on a party and cannot be made basis to maintain any claim against a third party. The relevant observation of the Hon'ble Court are being reproduced hereinbelow:
"13. The customary documents on which the Petitioner herein relies upon to claim ownership over the flat no. 301 are colloquially referred to as the Power-of- Attorney sales. However, the Supreme Court has after taking note of this practice for Power-of Attorney sales categorically held that such transactions are not a ANIL CHANDHEL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 23 of 30 Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date:
2024.11.04 17:01:04 +0530 legal mode of transfer of title in an immovable property. The Supreme Court after examining the mandatory provisions of the Registration Act, TP Act and the Indian Stamp Act, 1899 held that these documents do not create any right, title or interest in favour of the intending purchaser. The law on this issue was recently reiterated by the Supreme Court in Shakeel Ahmed v. Syed Akhlaq Hussain MANU/SC/1257/2023 : 2023:INSC:1016, wherein the Court after referring to its earlier judgment held that the person relying upon the customary documents cannot claim to be the owner of the immovable property and consequently not maintain any claims against a third-party."
9.2.8. The aforesaid view of Shakeel Ahmed (supra) has further been followed by the Hon'ble High Court of Delhi in "Dheeraj Jain and Ors. Vs. Savitri Devi and Ors. (02.02.2024): 2024:DHC:744", to stress upon the fact that the law with regard to section 17 of the Registration Act, 1908 remained consistent all along and no cut-off date or a prospective date could have been read into such a provision. The relevant observation of the Hon'ble Court are being reproduced hereinbelow:
"75. ................................................It is manifest from the above, that any document of sale in respect of a property which is worth more than Rs. 100 is, mandatorily registrable. This issue has been reiterated and confirmed by the Supreme Court in the recent judgement in R. Hemalatha vs. Kashthuri, reported as MANU/SC/0344/2023 : 2023:INSC:336 : (2023) 10 SCC 725. The Supreme Court has also considered Suraj Lamps & Industries (P) Ltd. vs. State of Haryana, reported as MANU/SC/1021/2009 : (2009) 7 SCC 363 in Shakeel Ahmed vs. Syed Akhlaq Hussain reported as ANIL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 24 of 30 CHANDHEL Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date:
2024.11.04 17:01:09 +0530 MANU/SC/1257/2023, and clearly held that no right, title or interest in immovable property can be conferred without the registered documents in respect thereto. It also clearly held that traditional documents like agreement to Sell, Will, Power of attorney etc., used by the parties for conveying interest in a property, in the absence of proper registered Sale Deed would be non- est in law and would not convey any title whatsoever, except to be used for specific performance. The Supreme Court held that the law in regard to section 17 of the Registration Act, 1908 remained consistent all along and no cut-off date or a prospective date could have been read into such a provision. It is undisputed in the present case that the Compromise Deed/ Relinquishment Deed is not registered under Section 17 of the Registration Act, 1908."
In terms of the above-mentioned discussion, it is clear that no cut off date or a prospective date could be read into the bar of Section 17 of the Registration Act, 1908. Therefore, this Court is in disagreement with the arguments of Ld. Counsel for the Plaintiff. Thus, the documents relied upon by the Plaintiff are unregistered and do no confer any legal title in favour of the Plaintiff.
9.2.9. There is another reason, which dis-entitles the Plaintiff to claim a right better than the Defendant No.1, in terms of the unregistered documents. The title of the predecessor in interest of the Plaintiff has not been established on record. The Plaintiff has claimed to have purchased the suit property from the Defendant No.2. The only document produced in favour of the Defendant No.2 is a registered Will dated 07.10.2009, i.e., Exhibit PW-4/A (OSR). The aforesaid Will ANIL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 25 of 30 CHANDHEL Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date: 2024.11.04 17:01:15 +0530 has been executed by one Mr. Kirpal Singh with regard to 100 square yards in plot No.22A, in favour of the Defendant No.1. Nothing has been disclosed, as to how Mr. Kirpal Singh beame the owner of 100 square yards in plot No.22A. The document, i.e., Exhibit PW-4/A(OSR) is also silent about the same. The Defendant No.2 has stated in his written statement that he did not have the title chain as the same was lost by Mr. Kirpal Singh and he has also lodged a complaint about the same. It has neither been disclosed by the Plaintiff or by the Defendant No.2 as to how Mr. Kirpal Singh became the owner of the 100 square yards in plot No.22A or of the suit property. No record has been produced to show that the previous title chain exists or was lost. Therefore, the suspicions loom large upon the antecedents title of the predecessors in interest of the Plaintiff, which have not been explained.
9.2.10. Further a Will is a document, which comes into effect only upon the death of the testator. It has not been established on record that Mr. Kirpal Singh has passed away and the Will dated 07.10.2009 has come into effect. A will is also required to be proved by examination of the attesting witness to prove that the same has been executed in accordance with the Section 63 of Indian Succession Act, 1925. Mere proof of registration of the Will does not amount to proof of its execution and valid attestation, in terms of Section 68 of the Indian Evidence Act, 1872. Thus neither the Will dated 07.10.2009 has been duly proved by the Plaintiff on record ANIL CHANDHEL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 26 of 30 Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date: 2024.11.04 17:01:35 +0530 nor the factum of death of the testator, i.e., Mr. Kirpal Singh, has been established on record nor it has been explained as to how did the Mr. Kirpal Singh was the owner of the property, being subject-matter of bequest.
9.2.11. The Plaintiff has also not clearly established the identity of the suit property. Though the Plaintiff has filed the site plan, but the same does not effectively identify the property. The Plaintiff has stated that the suit property is plot No.22A, ad- measuring 50 square yards, which was acquired in terms of Exhibit PW-2/2 (colly) from the Defendant No.1. It has further been stated that the Defendant No.1 was owner of an area ad-measuring 100 square yards, in terms of the Will dated 07.10.2009 in the plot No.22A. It is not clear as to which part of plot No. 22A is the suit property. If the physical description of the plot, in Exhibit PW-2/2(colly) and other documents, is seen, the same does not show any remaining 50 square yards in plot No.22A. Further the Defendant No.1 claims to have sold an area ad-measuring 25 square yards from the area of 125 square yards in her possession in the plot No.22A, and it is not clear whether the Plaintiff's claimed 50 square yards falls in this sold area or unsold area.
9.2.12. The parties were required to clearly describe the physical boundaries, by tracing the historical reference as to how did the same came to be. The aforesaid physical identification becomes important in absence of any government approved ANIL CHANDHEL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 27 of 30 Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date: 2024.11.04 17:01:40 +0530 or registered documents, for ascertaining the factum of possession. The Plaintiff claims that the Defendant No.1 was in occupation of the property adjacent to the suit property and there was a common wall in both the properties. The Defendant No.2 has denied the existence of any common wall. It has not been stated by the Plaintiff whether the aforesaid wall was constructed previously or subsequent to the purchase of the suit property. Besides oral averments, there is nothing on record to even conclude that the Plaintiff was ever in possession of the suit property. The Plaintiff was required to clearly delineate the physical description of the suit property in relation to the Defendant's property. No such clear physical description is ascertainable from either the documents or from the site plan, filed by the Plaintiff. In view of the confusion on record, it can-not be concluded with any amount of certainty as to which part of area in Defendant's possession could be said to be the suit property.
9.2.13. Accordingly, the Plaintiff is neither the owner of the suit property nor is entitled to possession of the same, in view of the discussion hereinabove. Therefore, the Issue No.2 and 3 are decided against the Plaintiff.
9.4 Issue No.4: Whether the Plaintiff is entitled to decree of Mandatory Injunction against the Defendants with respect to the suit property, as prayed for vide prayer clause (iii)? OPP ANIL CHANDHEL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 28 of 30 Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date: 2024.11.04 17:01:46 +0530 The onus to prove the Issue No. 4 is upon the Plaintiff. The Plaintiff has sought mandatory injunction thereby seeking directions to the Defendant No.1 to remove the walls/construction in the suit property. The Issue No.4 is consequential to the Issue No.2 and 3, which have been decided against the Plaintiff. Therefore, the Plaintiff is not entitled to any such mandatory injunction, as prayed by him and accordingly, the Issue No.4 is decided against the Plaintiff.
9.5 Issue No. 5: Whether the Plaintiff is entitled to decree of Permanent Injunction against the defendants with respect to the suit property, as prayed for, vide prayer clause (iv) ? OPP The onus to prove the Issue No. 5 is upon the Plaintiff. Since the Plaintiff is not entitled to possession of the suit property, therefore, the Plaintiff is also not entitled to any permanent injunction with regard to the suit property. The Issue No.5 is accordingly decided against the Plaintiff.
9.6 Issue No. 6: Whether the Plaintiff is entitled to decree of future damages /mesne profits @ Rs.10,000/ per month against the Defendants from the date of institution of the suit till the possession of the suit ANIL Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 29 of 30 CHANDHEL Civil DJ No. 610572/2016 Digitally signed by ANIL CHANDHEL Date: 2024.11.04 17:01:51 +0530 property is handed over to the plaintiff, as prayed vide prayer clause (ii) ? OPD Since the Plaintiff has failed to prove his entitlement to the prayer of possession, therefore, the Plaintiff is also not entitled to any damages/mesne profits, as prayed by him. The Issue No.6 is accordingly decided against the Plaintiff.
10. Relief:
The suit of the Plaintiff is dismissed for the prayers of possession, mandatory and permanent injunction as well as for the prayer of damages/mesne profits. The decree sheet be drawn up accordingly. The files be consigned to record room after due compliance.
Digitally signed by ANIL CHANDHEL ANIL Date:
CHANDHEL 2024.11.04 17:01:57 +0530 Announced in the open Court (ANIL CHANDHEL) today on 4th of November, 2024 District Judge-04 (West District) THC/DELHI/04.11.2024 Dalbir Singh Vs. Smt. Gyan Kaur & Ors Page No. 30 of 30 Civil DJ No. 610572/2016