Delhi District Court
Smt. Kasturi Devi W/O Late Shri Mangte ... vs Shri Mussaddi Lal Son Of Not Known on 26 October, 2012
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 105/2010
IN THE MATTER OF:
Smt. Kasturi Devi W/o Late Shri Mangte Ram,
R/o H.No. 457, Village Devli, Nai Basti, New Delhi62
.....................Plaintiff
VERSUS
1. Shri Mussaddi Lal son of not known
2. Shri Talwar Singh son of Shri Mussaddi Lal
Both presently residing at Plot No. 1008,
Khasra No. 16/3/3, Sangam Vihar, New Delhi62
3. Shri Rajinder Kumar son of Shri Dal Chand
R/o village Devli, New Delhi. ....................Defendants
Date of Institution: 20081990
Date of Reserving for Judgment: 08102012
Date of Judgment : 26102012
SUIT FOR
MANDATORY INJUNCTION AND PERMANENT
INJUNCTION
JUDGMENT:
1. Vide this Judgment, I shall decide a suit for Mandatory Injunction and permanent injunction filed by the plaintiff.
2. The brief facts of the case as per the plaintiff are as follow: The plaintiff purchased, for consideration, the suit property i.e. a Suit No. 105/2010 Page No. 1 of 13 plot bearing no. 1008, khasra no. 16/3/3 (min.) Sangam Vihar, near Devli Village, N. Delhi62 measuring 77 sq. Yds. Vide an agreement to sell,and receipt dated 2/1/1987 from Sh. Bansi Lal Kanojia, who purchased the suit premises from Sh. Rajender Kumar vide agreement to sell,and receipt dated 20/3/1984. thus, the plaintiff is the owner of the suit premises. Sh. Bansi Lal Kanojia handed over the vacant possession of the suit premises to the plaintiff on 2/1/1987. The defendant no. 1 and 2 took forcible possession of the suit premises from the plaintiff on 15/7/1988 after breaking open the lock. The plaintiff approached the police and SDM etc. in this regard but nobody came to her rescue and thus she filed the present suit.
3. On the other hand the defendant no. 1's case is that he purchased, for consideration, the suit premises vide an agreement to sell and receipt dated 9/8/1984 from Sh. Mahender Sahay, who purchased the suit premises from Sh. Rajender Kumar vide agreement to sell and receipt dated 7/5/1984. he has further denied all the averments made by the plaintiff in the plaint and prayed for dismissal of the suit.
4. On the basis of the pleading of the parties following issues were framed vide order dt. 03031997 & 06011999.
i) Whether the Plaintiff is entitled for Mandatory and permanent Suit No. 105/2010 Page No. 2 of 13 injunction as asked for in the plaint? OPP
ii) Whether the plaintiff has no locus standi to file the present suit?
OPD
iii) Whether there is no cause of action in the suit? OPD
iv) Whether the property of the suit is not properly valued for the purpose of court fee and jurisdiction? ( onus is on both the parties)
iv) Relief.
5. To prove her case the plaintiff has examined Sh. Narain Singh as PW1. PW1 was examined & crossexamined on 17012001. PW1 has put reliance on the following documents:
i) Copy of the SPA is Ex. PW1/1.
ii) Site plan of the suit property is Ex.PW1/2.
iii) Agreement to sell dt. 02011987 is Ex. PW1/3
iv) Receipt dt. 02011987 is Ex. PW1/4.
v) GPA dt. 20031984 is Ex. PW1/5.
vi) Agreement to sell dt. 20031984 is Ex PW1/6.
vii) The receipt dt. 20031984 is Ex. PW1/7.
viii) The letter dt. 07111989 is Ex. PW1/8.
ix) The complaint dt. 26071988 is Ex. PW1/9.
x) The copy of complaint made to SDM is Ex. PW1/10.
6. Further the plaintiff has examined Sh. Bansi Lal Kanojia as PW2 , Sh. Nihal Singh as PW3 and Sh. O.P. Verma computer Clerk from Suit No. 105/2010 Page No. 3 of 13 SBI Rail Bhawan, Branch Delhi. The PW4 relied upon the document Ex. PW4/1 which is ledger sheet in the name of Sh. Bansi lal Kanojia. The plaintiff has also examined Sh. Rajinder Singhal as PW5. During the crossexamination the PW5 was confronted with the documents Mark PW5/D1 to PW5/D4.
The PW1 to PW4 were also crossexamined by the Ld. counsel for the defendants.
7. On the other hand the defendant has examined Sh. Mehar Chand as DW1 . DW1 has filed his evidence by way of affidavit Ex. DW1/A, who has reiterated the facts mentioned in the written statement and relied upon the documents which are as under:
i) Agreement to sell dt. 09081984 is Ex. DW1/1
ii) GPA dt. 09081984 is Ex. DW1/2
iii) Affidavit dt. 09081984 is Ex. DW1/3.
iv) Receipt dt. 09081984 is Ex. PW1/4.
v) The construction work receipt is Ex. DW1/5.
vi) Site plan of the suit property is Ex. DW1/6.
vii) Copy of Ration Card, Electricity Bill, Receipt of Gas Connection receipt, Pension Application dt. 01072002, Receipt of welfare Association BBlock , Sangam Vihar are Ex. DW1/7 to DW1/12.
The DW1 was also crossexamined by the Ld. counsel for the plaintiff.
Suit No. 105/2010 Page No. 4 of 13
8. I have heard Ld. counsel for both the parties, perused the record & gone through the relevant provision of law.
9. My issues wise findings is as follow: I shall take issue No. 2 first.
10.Issue No. 2 Whether the plaintiff has no locus standi to file the present suit? OPD The burden to prove this issue was on the defendant but the defendants have not led any evidence in this regard nor otherwise proved this issue . Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
11.Issue No. 3 Whether there is no cause of action in the suit?
OPD The burden to prove this issue was on the defendant but the defendants have not led any evidence in this regard nor otherwise proved this issue . Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
12.Issue No. 4 Whether the property of the suit is not properly valued for the purpose of court fee and jurisdiction? ( onus is on both the parties) The burden to prove this issue was on the defendant but the defendants have not led any evidence in this regard nor otherwise proved this issue. Accordingly, this issue is decided in favour of the plaintiff and against the defendants. Suit No. 105/2010 Page No. 5 of 13
13.Issue No. 1 Whether the Plaintiff is entitled for Mandatory and permanent injunction as asked for in the plaint? OPP The case of the plaintiff is that she purchased the suit property i.e. a plot bearing no. 1008, khasra no. 16/3/3 (min.) Sangam Vihar, near Devli Village, N. Delhi62 measuring 77 sq. Yds. Vide an agreement to sell,and receipt dated 2/1/1987 from Sh. Bansi Lal Kanojia, who purchased the suit premises from Sh. Rajender Kumar vide agreement to sell,and receipt dated 20/3/1984. thus, the plaintiff is the owner of the suit premises. Sh. Bansi Lal Kanojia handed over the vacant possession of the suit premises to the plaintiff on 2/1/1987. The defendant no. 1 and 2 took forcible possession of the suit premises from the plaintiff on 15/7/1988 after breaking open the lock.
14.On the other hand the defendant no. 1's case is that he purchased, for consideration, the suit premises vide an agreement to sell and receipt dated 9/8/1984 from Sh. Mahender Sahay, who purchased the suit premises from Sh. Rajender Kumar vide agreement to sell and receipt dated 7/5/1984. Thus, the defendant no. 1 is the owner of the suit premises.
15.Before delving on the rival contentions of the parties it would be worthwhile to reproduce relevant paras of decision of the Hon'ble Apex Court in Suraj Lamps & Industries Pvt. Ltd. Vs. State of Suit No. 105/2010 Page No. 6 of 13 Haryana and Anr. 183 (2011) DLT 1 (SC), which are as under:
"Scope of an Agreement of sale
11.Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam and Anr. (1977) 3 SCC 247, observed:A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR 293.
The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein." In India, the word `transfer' is defined with reference to the word `convey'. The word `conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership... ... Suit No. 105/2010 Page No. 7 of 13 that only on execution of conveyance ownership passes from one party to another....;
In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [2004 (8) SCC 614] this Court held:
Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor 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 a third party." It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred.
12.Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of Transfer of Property Act and will not confer Suit No. 105/2010 Page No. 8 of 13 any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53A of Transfer of Property Act). According to Transfer of Property Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of Transfer of Property Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.
Scope of Power of Attorney 14.13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan vs. Basant Nehata 2005 (12) SCC 77, this Court held :
"A grant of power of attorney is essentially Suit No. 105/2010 Page No. 9 of 13 governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
15.Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powersof Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee. Suit No. 105/2010 Page No. 10 of 13 An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor."
16.The claim of both, the plaintiff and the defendant no. 1 is based on the documents agreement to sell, receipt and GPA. From the aforesaid decision in Suraj lamp's case (supra), it is manifest that a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. An immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. 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 immovable property. At this juncture, it would be worthwhile to reproduce para 16 of Suraj lamp's case (supra), which is as under:
16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. 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 immovable property. The courts will not treat such transactions as completed or concluded transfers or Suit No. 105/2010 Page No. 11 of 13 as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A 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 freehold property but also to transfer of leasehold property. A lease can 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.
17.The benefit of S. 53A Transfer of Property Act operates only against the party to the agreement to sell and nobody else. Herein, the benefit of Section 53A cannot be claimed by the plaintiff against the defendant no. 1. Also, the defendant is admittedly in possession of the suit premises further the agreement to sell qua the plaintiff was executed on 2/1/1987 and against the defendant no. 1 was executed on 9/8/1984, therefore, there is a presumption that the defendant no. 1 is in lawful possession of the suit premises since 9/8/1984 so the question of dispossessing the plaintiff does not arise. The decision in Ramesh Chand vs. Suresh Chand - MANU/DE/1690/2012 do not assist the case of Suit No. 105/2010 Page No. 12 of 13 the plaintiff as therein also the Hon'blE Delhi high court applied the decision in Suraj Lamp's case (supra) and J.C. Mehra vs. Kusum Gupta 117 (2005) DLT 506, do not apply to the facts of the case as the same pertain to landlordtenant dispute.
18. From the aforesaid discussion it is manifest that the plaintiff has failed to prove her case. Therefore, she is not entitled to a decree of permanent and mandatory injunction as prayed for. Accordingly, this issue is proved in favour of the defendants and against the plaintiff.
19.Relief In view of the above discussion, the suit of the plaintiff is dismissed. There are no orders as to costs. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced & signed in the ( Snigdha Sarvaria) open court on 26102012. Civil Judge/Central05 Delhi Suit No. 105/2010 Page No. 13 of 13