Delhi District Court
Suit No. 651/95 vs Sh. Shri Ram on 15 April, 2010
IN THE COURT OF SH. SAMAR VISHAL, CJ02 (North), DELHI SUIT NO. 651/95 MEMO OF PARTIES. Sh. Ram Dhan S/o Late Sh. Sohan Lal R/o A59, Shiv Ram Park, Najafgarh Road, Nilothi Crossing, Delhi41. ............Plaintiff Versus 1.
Sh. Shri Ram S/o Shri Babu Lal
2. Shri Mukesh S/o Sh. Babu Lal
3. Shri Babu Lal S/o Sh. Bhure Lal All R/o House No. 390/5, Chander Ka Quarter, Rampura, Delhi35. ...........
Defendant SUIT FOR DECLARATION,PERMANENT INJUNCTION AND POSSESSION AND FOR INJUNCTION Date of institution of Suit: 30.11.1995 Date on which judgment was reserved: 13.04.2010 Date of announcement of judgment: 15.04.2010 AND SUIT NO. 214/98 MEMO OF PARTIES.
Sh. Babu Lal S/o Bohrey Lal Ro R1068, Mangolpuri, J.J. Colony, Delhi. ............Plaintiff Versus
1. Sh. Ramdhan 1 S/o Sh. Sohan Lal, R/o 59A, Shiv Ram Park, Nangloi, Delhi41.
2. Inspector Vigilance R.D. Singh, Office of Vigilance, Second Floor, Police Station Ashok Vihar, Delhi52. ...........Defendants SUIT FOR PERMANENT INJUNCTION Date of institution of Suit: 04.02.1998 Date on which judgment was reserved: 13.04.2010 Date of announcement of judgment: 15.04.2010 Judgment This common judgment will dispose off two suits which were consolidated by the Court vide the order of consolidation dated 27.11.1998. The present suit is filed by the plaintiff Sh. Ram Dhan against three defendant one being Babu Lal and other defendants being his sons, for declaration as well as recovery of possession.
The other suit was filed by the Shri babu Lal against Ram Dhan for injunction in respect of same property. since the disputed property and cause of action (i.e. Fraudulent execution of documents) is common in both the suits, both the suits are disposed by way of a common judgment.
Brief facts relevant for the disposal of the suit for possession as alleged by the plaintiff are as follows;
The plaintiffs father Sh. Sohan Lal was allottee of 25 sq. yds. plot by DDA in Mangolpuri, Delhi. The plot bears no.1068, BlockR, Mangolpuri, Delhi. It was alloted against possession slip No.7568 dated 23.5.1976 under DemolitionSlip No. P1/2385 bearing plot No.1068 in 2 BlockR, Mangolpuri, Delhi. In the year 1976, when the said plot was alloted to the father of the plaintiff, the plaintiff was residing alongwith his father and both of them started the construction on the said plot. This plot is hereinafter referred to as a suit property. Plaintiff's father expired on 15.7.1992 and his mother was also expired in the year 1993. Plaintiff alongwith his wife and two children was residing in the suit property till he was assaulted, threatened and an attempt was made to murder him by defendant no.1 & 2 and their associates on the same date. It is alleged by him that defendant no.1 is working in Delhi Transport Corporation as Conductor. He was also running a Stationery shop at Plot No. R 1021, Mangolpuri, Delhi which is adjacent with the plot of the plaintiff. Defendant's were the persons of previous acquaintance with the plaintiff and due to the faith on the defendants, the plaintiff has communicated to them his desire to get mutated the suit property in his name. The plaintiff is an illiterate person. He is a mason by profession. The defendants took the advantage of the illiteracy of plaintiff and assured him that they will get all the necessary documents executed in his favour to effect the mutation of the suit property in his name which earlier stood in the name of his father. They also assured that the electricity meter and water connection in the name of his father will be converted in his name and with the intention of playing fraud upon him which at that time was not in the knowledge of the plaintiff, the defendants got executed certain papers from the plaintiff on the pretext that the said papers were required for submission in the concerned department for the transfer of the name in the allotment of house, electricity meter and water meter.
Later plaintiff came to know that he has been cheated and the defendants have fraudulently got executed/signed the papers which shows that the plaintiff's house has been purchased by the defendants and those papers were GPA/agreement to sell etc. Later on the defendants on the same day forcibly evicted from his house ie. the suit property. The 3 defendants alongwith their associates also tried to murder the plaintiff but he some how escaped the spot and later on reported the matter to the police but the police has although prepared the MLC of the defendant has not taken any further action in that matter. The defendant then went to Rajasthan alongwith his family to save his life leaving all his property and other movable property.
After around one and a half years later, the plaintiff came back to Delhi in the month of July 1995, and made representations to various authorities. During his absence from Delhi, defendant demolished all the structure over the plot of the plaintiff and constructed unauthorized shops over there. Therefore, the whole case of the plaintiff is that he has been cheated in the execution of the document, which he has executed in good faith believing that these documents are for the purpose of the mutation of the suit property in his name. No consideration is passed in this transaction and the defendants cannot be considered as the owner of the suit property. With these allegations the plaintiff has prayed for a declaration that he is the real and legal owner of the suit property. The other relief claimed by him is that of possession of suit property and injunction restraining the defendants to dispose off the suit property.
On the other hand, the defendants have filed their written statement taking the preliminary objection that the suit is bad for misjoinder of parties as defendant no.1 & 2 have no concern or connection with the suit property. It is also alleged that plaintiff's other two brother i.e. Sh. Ram Lal and Sh. R.D. Singh are also the necessary parties in this suit and the suit is bad for non joinder of necessary parties.
However, on merits it has been averred by the defendants that the plaintiff has on 14.6.1994 sold the suit property to defendant no.3. Defendant no.3 is the father of defendant no.1 and defendant no.2. It is also averred in the written statement that the other brother of 4 plaintiff ie.. Sh. Ram Lal has also sold the 1/3 rd share of the suit property to the defendants on 10.10.1994 and the 2/3 rd share of the suit property was sold by the plaintiff on 14.6.1994 vide GPA, agreement to sell, receipt affidavits and registered Wills. It is averred in the written statement that the suit property was sold by plaintiff without any coercion, without any undue influence and it was sold by him out of his free will and consent without any fraud or misrepresentation by the defendants. Plaintiff has sold his 1/3 share and the 1/3 share of the other brother who has been missing for the last 1012 years. In this way the plaintiff has sold 2/3 rd share in the suit property to the defendant no.3. Defendants has averred that the plaintiff has himself expressed his desire to sell the suit property to the defendants and in pursuance of that desire the defendant no.3 has purchased the suit property. There is no question of any fraud in the execution of documents and on this ground the defendants have alleged that the suit may be dismissed.
In replication there is a denial of material allegations made in the written statement and repetition of plaint averments.
The connected suit which is also disposed off by this judgment is filed by defendant no.3 Sh. Babu Lal against the plaintiff Sh. Ram Dhan and his brother Sh. R.D. Singh who was inspector vigilance. The relief sought in the suit was of permanent injunction alleging that the plaintiff Sh. Ram Dhan has sold the suit property to the plaintiff and after the sale of the property the defendant no.1 i.e. Sh. Ram Dhan has become dishonest and colluded with his brother who is defendant no.2 with the sole motive to extract more money as sale consideration from the plaintiff and his sons namely Sh. Shri Ram and Sh. Mahesh Kumar. It is alleged in the plaint of injunction suit that the defendants conspired with each other and hedged a conspiracy to extort more money from the plaintiff after the completion of the transaction. It is alleged by him that the defendant no.1 Sh. Ram Dhan sold 2/3 share of the 5 whole property through GPA, agreement to sell, receipt etc dated 13.4.1994 mentioning therein clearly that he sold 1/3 share of his own and 1/3 share of his second brother Sh. Nanak to whom he alleged to be missing for the last 12 years.
The defendants have filed the written statement to the suit of injunction filed by Sh. Babu Lal alleging that the plaintiff has played fraud with the defendant no.1 and fraudulently got signed papers which are alleged to be GPA, agreement to sell etc through which the plaintiff is claiming to be the owner of the suit property and is praying for injunction in that suit and with these averments, the defendants have requested that this suit be dismissed. In the replication of this suit, there is denial of material allegations of the plaint allegations and repetition of plaint averments. In a suit for declaration and possession following issues are framed:
1.Whether the present suit is without any cause of action. OPD.
2.Whether the suit is bad for mis joinder/non joinder of necessary parties. OPD.
3.Whether the plaintiff is entitled to the declaration as prayed for? OPP.
4.Whether the plaintiff is entitled to the permanent injunction as prayed for? OPP.
5.Relief.
Subsequently, when the amendment application of the plaintiff was allowed, an additional issue was framed that is issue no.3A 3A Whether the plaintiff is entitled for the relief of possession as prayed for in the suit? OPP.
In the suit for injunction which was filed by the defendant no.3 i.e. Sh. Babu Lal the following issues are framed;
1.Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP.
2.Whether the plaintiff alongwith his two sons Sh. Shri Ram and Mukesh have 6 played fraud with defendant no.1 by fraudulently getting signed certain papers alleged to be GPA and agreement to sell? OPD.
3.Relief.
Since the suits were consolidated, the evidence was led only in the suit for possession filed by Sh. Ram Dhan against the defendants.
In order to prove his case, plaintiff Sh. Ram Dhan has examined himself as plaintiff witness no.1. Sh. I.C. Vashistha from the Din Dayal Upadhyaya Hospital to prove the MLC as PW2 and Sh. Jai Karan as PW3.
On the other hand the defendant no.3 has examined himself as the defence witness in this case.
My issuewise findings are;
Issue no.1 Whether the present suit is without any cause of action? OPD. The burden to prove this issue is on the defendants. The defendants have in their written statement alleged that the suit filed by the plaintiff is without any cause of action probably on the ground that the plaintiff has sold the suit property to the defendants and he is not left with any kind of right title or interest in the suit property and for this reason the defendants have stated that the plaintiff has no cause of action to file the present suit. On the other hand, the case of the plaintiff is that the documents through which the defendants are claiming themselves to be the owner of the suit property got executed by him by the defendants through fraud and deceit. He was never aware of the fact that he was signing the document, which have the potential of transferring the suit property to the defendants. It is the case of the plaintiff that the documents were executed through him by fraud and to get a declaration that he is still is a real owner of the suit property, the present suit has been filed. The cause of action has to be seen by the averments of the plaint. If the averments of the 7 plaint proposes any cause of action then it cannot be said that this suit is filed without any cause of action.
In Bloom Dekor Ltd. v. Subhash Himatlal Desai and Ors. (1994(6) SCC 322) it was observed that By "cause of action" it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit.
In Sadanandan Bhadran v. Madhavan Sunil Kumar, 1998(4) RCR(Crl.) 90 ; (1998 (6) SCC 514) it is observed that in a generic and wide sense (as in Section 20 of the Civil Procedure Code, 1908) "cause of action" means every fact, which it is necessary to establish to support a right to obtain a judgment. (See Sadanandan Bhadran v. Madhavan Sunil Kumar) It is settled law that "cause of action" consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action"
means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of 8 evidence, which is necessary to prove each fact, comprises in "cause of action. In Halsbury Laws of England (Fourth Edition) it has been stated as follows :
"Cause of action has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. Cause of action' has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action".
To see the cause of action, the defence statement or the written statement has not to be looked into and on a prima facie view of the plaint it appears that if the contents of the plaint are considered as true the plaintiff has a cause of action in filing the present suit. This issue is therefore decided in favour of the plaintiff and against the defendant. Issue no.2 whether the suit is bad for the mis joinder/non joinder of necessary parties In para 2 of the written statement, defendants have alleged that the suit is bad for the mis joinder of parties, as the defendant no.1 & 2 have no concern or connection whatsoever with the suit property and only the defendant no.3 is the owner of the same who purchased the suit property from the plaintiff. Further the suit is also bad for non joinder of necessary parties as the plaintiff has not impleaded his brother namely Sh. Ram Lal and the Inspector Vigilance Sh. R.D. Singh as necessary parties to the suit and the defendants have stated that on these grounds the suit of the plaintiff should be dismissed. Considering the overall facts of the case, I am of the view that the plaintiff has filed this suit for the relief of declaration as well as injunction. The declaration which he is seeking is regarding the ownership of suit property and in that respect, defendant no.3 only is a 9 necessary party but regarding the relief of injunction is concerned, ''that the defendants be restrained from creating any third party interest in the suit property by way of sale mortgage or gift or in any manner'' is concerned, again I am of the view that this right is available to defendant no.3 only and even if the contentions of the defendant or the defence statement is considered as true then only defendant no.3 is having the documents in his favour and therefore has the capacity to transfer the suit property or create any third party interest by way of sale, mortgage etc. Therefore, defendant no.1 & 2, it appears that, has been made unnecessary parties in the present suit.
As far as the brothers of plaintiff is concerned whom the defendants have alleged to be a necessary party, I am of the view that both the brothers of plaintiff namely Sh. Ram Lal and Sh. R.D. Singh are not necessary parties to the present suit because the declaration which the plaintiff is seeking is regarding his ownership in respect of his portion of the suit property which the defendants alleged that they have purchased it from the plaintiff. How the brothers of plaintiff i.e. Sh. Ram Lal and Sh. R.D. Singh is the necessary party in this suit is beyond comprehension because in overall consideration of the pleadings it is not clear how the brothers of this plaintiff is related to the suit property. The burden to prove this issue that the brother of plaintiffs are necessary parties was upon the defendants but I am of the view that no independent evidence has been lead or no cogent evidence has been led by the defendants to show that the brothers of plaintiff are the necessary parties in this suit. Holding the defendant no.1 & 2 as unnecessary party and also the brothers of plaintiff as unnecessary party, the suit cannot be defeated by reason of framing defendant no.1 & 2 as the unnecessary party in the suit and in this regard rule 9 of Civil Procedure Code is relevant which reads as under:
Mis joinder and non joinder No suit shall be defeated by reason of the mis joinder or 10 non joinder of the parties and the Court may in every suit deal with the material controversy so far as regards the rights and interest of the party actually before it. Provided that nothing in this rule shall apply to non joinder of a necessary party. Therefore, in view of this provision even if the defendant no.1 & 2 are unnecessarily being made a party, this shall not be sufficient to dismiss the present suit. The issue is partially decided in favour of plaintiff and partially in favour of the defendant and it is decided that defendant no.1 & 2 are unnecessary party in this suit as well as the brother of plaintiff Sh. Ram Lal and Sh. R.D. Singh are also not the necessary party in this suit. Issue no.3 whether the plaintiff is entitled for the declaration as prayed for? OPP The plaintiff has sought the declaration by this Court declaring him as the owner of the suit property. The case of plaintiff is that he is the owner of the suit property which he has inherited from his father. The case of defendant is that the suit property was sold by the plaintiff to the defendants vide GPA, agreement to sell, affidavit, receipt and a registered Will. To prove himself as the owner of the suit property, the plaintiff has to prove his ownership and the ownership can be proved only by relevant documents in this respect. The plaintiff has not filed any documents relating to his ownership in the suit property and therefore, I am of the view that the plaintiff is not entitled for any kind of declaration in the suit property. The fact that the defendant no.3 who has purchased the suit property from the plaintiff has admitted the plaintiff to be the previous owner of the suit property would not entitle the plaintiff to get himself declared from this Court as owner of the suit property because ownership being an independent right and declaration being a discretionary remedy under Specific Relief Act can be granted to the plaintiff only on the incontrovertible proof of the same. All the documents on which the plaintiff has relied i.e ,PW1/B to PW1/F ,PW1/2, pW1/G to PW1/I etc are in the name of Shri Sohan Lal i.e. the father of the plaintiff. Plaintiff 11 do not have any single document of ownership in his name .There is no mutation of property documents in the name of plaintiff. The only fact of admission by the defendants will in no way entitle the plaintiff to succeed in getting a discretionary relief of declaration in respect of suit property and therefore, I decide this issue against the plaintiff simply because he is unable to prove his ownership over the suit property.
Issue no.3A Whether the plaintiff is entitled for the relief of possession as prayed for in the suit.
The whole controversy revolves around the execution of the documents through which the defendants have alleged to have purchased the suit property by the free Will and consent of the plaintiff or not. The execution of documents is a question of facts. The law is well settled that the person holding the documents pertaining to the ownership of the property is presumed to be its owner. Plaintiff has examined himself as well as two other witnesses to prove his allegations. On the other hand, defendant has examined himself as defence witness to prove his defence.
The first witness which the plaintiff has examined is the plaintiff himself who has supported his plaint version in his examination in chief. However, in his cross examination he has stated that ``that the GPA bears his signatures at point A & B. He did not appear before the Subregistrar. Shri Ram went inside and told him to sit and came after two hour. It is deposed by him that he have not spent any money at subregistrar office. However, the money was spent by defendant. He has not offered to pay the price of execution of documents.
The story of fraud put forward by the plaintiff appears to be highly improbable in view of the fact that if the plaintiff was of the view that the whole exercise was done by the plaintiff and defendant in order to get the documents mutated in favour of the plaintiff, then at that 12 point of time, the plaintiff should have spent the money in the execution of those documents. In natural course of conduct an ordinary person would inquire that why the other person who has no concern and no interest in the property is spending money or taking so much interest in the execution of documents and it was sufficient to raise a suspicion that something wrong was being done at that point of time.
He further deposed that he went to police station after 15 minutes of the incident i.e. incident of dispossession and an attempt to murder him. He has deposed that he alone went to PS. Police took him to the Police station. After coming from the hospital, defendant connived with the police and police gave beating on him and police officials told him in abusive language that he shall run from the spot otherwise the defendant will kill him. He has deposed that he has not made any complaint about the behaviour of police officer to any higher authority. He has deposed that he has moved an application to the police officers and he has filed this case and returned to Delhi after one and a half years. It is also deposed by him in his document that he has signed the documents by his own free will. This conduct of the plaintiff is also highly unnatural that instead of doing something for the recovery of possession he has left Delhi and returned after one and half years. This conduct of plaintiff shows that he has sold the property to the defendant no. 3 and left Delhi. A person who is duped and forcefully dispossessed from the house in which he is living for the last 20 or 25 years will react and protest immediately and not after such along time. One of the brother of plaintiff was in police department and it is difficult to believe that police has not took any action against him. In case of inaction of the police , he has other options available in law , but there was no need to run away. It is not the case of the plaintiff that the defendants are persons of criminal nature or antecedents which prompted him to leave the city.13
The execution of documents by the plaintiff is not denied, only the contents of the documents are disputed in this case. Whether the plaintiff was aware of the contents of the documents or not can be ascertained only by surrounding circumstances. His testimony regarding the money spent by the defendant, all the work done by defendants in the execution of documents. That he has left the Delhi either after his dispossession from the suit property, he went away from Delhi and after one and a half year he returned to Delhi. This conduct shows that if he was dispossessed from the suit property forcefully and he came to know about the alleged fraud on the same day, he should have made a complaint and he should have come to the Court immediately. His acquiescence for the period of one and a half year is sufficient evidence to prove the fact that the documents were executed by the plaintiff not only by his own free will but also in the knowledge of the transaction. One another important evidence in this respect is of the plaintiff himself. Plaintiff has deposed in his examination in chief by way of affidavit that Sh. Jai Karan who was the Government Servant has backed out from the conspiracy of the defendant after four days of the alleged transaction and after four days the defendants have executed certain papers from him on 13.6.1994 in favour of defendant no.3. This witness who is brought by the plaintiff himself has deposed in his cross examination that no such talk regarding the transfer of property was done in his presence but he has made an important disclosure that Ram Dhan told him that he is willing to sell his property. It was also deposed by him in cross examination that he told to Ram Dhan that he will purchase the suit property if he was enable to arrange the price of the house. The evidence of this witness shows that the plaintiff Ram Dhan was also willing to sell his property. The free execution of the documents, the active part took by the defendants in the purchase of the property, the leaving for Delhi for such a long period of time after the possession of the suit property was changed and his willingness 14 to sell property are all surrounding circumstances which points out that the property was transferred by the plaintiff by his own free will and consent to the defendants and therefore, I am of the view that the story of the plaintiff that the documents were executed by way of fraud and he was not aware of the contents of the documents is not true. One third share of property was also sold to the defendant no three by the brother of the plaintiff and this fact also made it highly probable that plaintiff would have sold hais share also to defendant no. 3.plaintiffs brother who sold his half share in the suit property has not made any kind of allegation against the defendant.
One more thing which was argued by counsel for plaintiff is that the immovable property worth Rs.100/ or more can be transferred only by way of registered sale deed and all these documents ie. GPA, agreement to sell, affidavit etc are not competent to transfer the property in favour of the defendants and therefore, the defendants have not become the owner of suit property by virtue of these documents.
This contention of defence counsel is true to much extent and it is also acceptable that an immovable property cannot be transferred without a registered instrument i.e. registered sale deed by virtue of section 17 of Indian Registration Act and section 54 of the Transfer of property Act.
For that purpose the defendants have relied upon the judgment of Smt. Asha M. Jain vs The Canara Bank 1994 (2001) DLT 841 (DB) in which in was held that ``GPA, the SPA and Will apart from agreement to sell creates interest in the property in favour of a person. These transactions are different from a mere agreement to sell and such transactions are accompanied with all documents including GPA, SPA, Will and affidavits etc.'' The facts in the present case on which the defendants are relying are somewhat different from the facts of the present case and the judgment on which the defendant is relying in that case the 15 registered the Power of Attorney and Will was registered.
In the present case, the power of attorney is not registered and it is a mere notarized document. However, in Delhi due to certain restrictions the GPA, agreement to sell etc are recognized as mode of transfer of the property and in In Harbans Singh v. Shanti Devi, 1977 Rajdhani Law Reporter 487, it was held that if a person owning a property executes an agreement for sale in favour of a lady and executes a irrevocable power of attorney in respect of the same property in favour of her husband then he cannot cancel or revoke power of attorney on account of interest or right created in the subject matter so as to prejudice the said interest.'' The provisions of Section 202 of the Contract Act, Section 54 of the Transfer of Property Act, 1882 and Section 17 of the Registration Act, 1908 were analysed and it was held that the interest in property means right, benefit or advantage whether tangible or intangible.
In Shikha Properties (P) Limited v. S. Bhagwant Singh and Ors., 1998(4) RCR (Civil) 389 (Delhi) : 1998 (46) DRJ 286, it was held that cases where agreement to sell is executed with Irrevocable power of attorney and full consideration having been paid would be covered by Section 202 of the contract Act since the purchasers deal with such properties practically as owners for fairly long and have "interest" in it. Thus in such a case agent has a interest in property which is the subject matter of the agency and which cannot be terminated to the prejudice of such interest in terms of Section 202 of the Contract Act, 1872.
The power of attorney sales and their effect has been considered in Kuldip Singh v. Surinder Singh, 1999 Rajdhani Law Reporter 20. The learned Single Judge of Hon'ble Court has observed that power of attorney sales in Delhi is the common mode of sale of immovable property to get over the legislative restrictions of transfer of properties. The power of attorney is for consideration and the bargain is followed by delivery of possession to 16 complete the transaction. Further to prevent arbitrary cancellation, Will and affidavit about renouncing rights are taken. The Court repelled the contention that since sublease with the Government prohibited transfer, such transfer was opposed to public policy, since in the view of the Court, public policy gets modified with march of time. The Court recognized the fact that restrictions to sell made everyone dishonest and the power of attorney sale method was devised to get over the restrictions. In fact the Government has partially recognized this since even power of attorney buyers can apply for conversion into free hold on paying penalty. In the present case also the power of attorney executed in favour of the defendant no.3 is an irrevocable power of attorney, the power of attorney is supported by an affidavit, an agreement to sell and a receipt of consideration along with an registered Will. The registered Will is of no consequence until and unless the testator is alive but an irrevocable power of attorney has no doubt, even though it is unregistered and sufficient stamp duty has not paid has created an interest in favour of the defendant no.3 even if the defendant no.3 is not considered as the owner of the property, he can be considered as the agent of the suit property with all incidence of ownership in respect of the suit property and since the power of attorney is irrevocable, the person who has executed the power of attorney i.e. the plaintiff in the present case is left with no right to revoke the power of attorney and consequently is left with no right to revoke the power given in the GPA to the defendant no.3. virtually creating a kind of ownership in him.
There is another aspect of the matter. An agreement to sell is also been created in favour of defendant no.3. The possession has been transferred in favour of defendant no.3 and in such situation section 53A of TPA will come into operation. The defence of part performance as provided in section 53A of the TPA protects the possession of defendant no.3 and ultimately the plaintiff is not able to recover the suit property from the defendant no.3 once 17 an agreement to sell has been made in favour of defendant no.3 coupled with consideration and transfer of possession of the suit property. In Shravan Jairam Patil & Ors. Vs. Garbat Ukha Navi AIR (3) 1943 Bombay 406 the Hon'ble Court held that the defence of part performance as embodied in section 53A requires four conditions to be fulfilled i.e.
1. There should be a contract to transfer for consideration any immovable property by writing signed by the transferrer or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
2. That the transferee should in part performance of contract have taken possession of the property or any part thereof or if already in possession should have continued in possession in part performance of the contract and should have done some act in furtherance of the contract.
3. That the transferee should have performed or should be willing to perform his part of the contract and that the rights of any other transferee consideration without notice should not be affected.
Therefore, u/S 53A of TPA, the defendant is fully entitled to protect his possession and this suit for recovery of possession will ultimately fail also on the ground of the equity of part performance. Upon consideration of this issue, I hold this issue in favour of the defendants and the plaintiff is not entitled for the recovery of possession from the defendants.
Issue No.4 Whether the plaintiff is entitled to the permanent injunction as prayed for? OPP.
While deciding the issue no.3A, it is held that the plaintiff has voluntarily executed the documents in favour of the defendant no.3. It is also observed that the documents GPA etc are a recognized mode of transfer of property in Delhi at least for the purpose of establishing 18 the incidents attached to the ownership of the property. Once it is established that the defendant is left with no right title or interest in the suit property, he is not entitled for the relief of injunction in respect of the suit property because there is no corresponding obligation against the defendants in respect of the suit property. This issue is therefore, decided against the plaintiff.
Issue No.5 Relief.
On the overall consideration of all the issues as discussed above, I am of the view that the plaintiff is neither entitled for the relief of declaration nor he is entitled for the relief of possession and injunction as prayed for.
The issues which are framed in another suit of injunction are two in numbers. These issues are regarding the entitlement of relief of injunction to the defendant no.3 who is the plaintiff in that suit of injunction .
The issues are decided as follows:
Issue No.1 Whether the plaintiff is entitled to the relief of injunction as claimed? While decided the previous issues, I have hold that Sh. Ram Dhan has voluntarily executed the document of sale in favour of the plaintiff in the suit for injunction and therefore, the plaintiff in the suit for injunction who is defendant no.3 in the suit for possession i.e. Sh. Babu Lal is entitled for the relief of injunction as prayed for. This issue is decided accordingly. Issue No.2 Whether the plaintiff alongwith his two sons Sh. Shri Ram and Mukesh have played fraud with defendant no.1 by fraudulently getting signed certain papers alleged to be GPA and agreement to sell? OPD.
This issue is also covered by issue no 3A. It was held that Ram Dhan has executed the documents in favour of Babu Lal with free consent and knowingly the contents of the document. This issue is also decided against Sh. Ram Dhan.19
Issue No.3 Relief.
The relief prayed by the plaintiff Sh. Babu Lal in the injunction case is to restrain the defendants from putting lock/seal on the suit property. It is alleged by Sh Babu Lal that Ram Dhan has sold the suit property to him and is left with no right or interest in the suit property and is therefore obliged not to create nuisance in the peaceful possession of Sri Babu Lal in the suit property . Therefore, the relief is granted and Sh. Ram Dhan and Sh. R.D. Singh who are the defendants in the suit of injunction is restrained from putting lock/seal and interfering in the suit property permanently.
Announced in the open Court on (SAMAR VISHAL) 15.04.2010 CJ 02 (North)/DELHI 15.04.2010.20
15.04.2010 Suit No. 651/95 & 214/98 Vide separate judgment, the suit titled as Ram Dhan Vs. Shri Ram numbered as 651/95 is dismissed and the suit titled as Babu Lal Vs. Ram Dhan numbered as 214/98 is decreed.
Separate copy of the judgment be placed in both the files and decree sheet be prepared separately in both the suits.
File be consigned to the record room.
(Samar Vishal) CJ02/North/Delhi.
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