Delhi District Court
Rca No.47/2012: "Smt.Shanti Devi vs Shri Kailash Kr. Verma" Dod: 02.03.2013 on 2 March, 2013
RCA No.47/2012: "Smt.Shanti Devi V/s Shri Kailash Kr. Verma" DOD: 02.03.2013
IN THE COURT OF VINOD YADAV: ADDL. DISTRICT JUDGEIV:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Regular Civil Appeal No.47/2012
In the matter of:
Smt.Shanti Devi,
W/o Late Shri Murari Lal Verma,
R/o Portion of House No.RZA19,
Sitapuri Extension, Part1,
Gali No.2, Near Nehru Academy,
New Delhi45.
.....Appellant
(Through Shri Prateek Kumar, Advocate)
Versus
Shri Kailash Kumar Verma,
S/o Shri Mangu Ram,
R/o House No.RZA19, Sitapuri Extension, Part1,
Gali No.2, Near Nehru Academy,
New Delhi45.
.....Respondent
(Through Shri Abhishek, Advocate)
Date of Institution of Appeal : 17.10.2012
Date of reserving judgment : 27.02.2013
Date of pronouncement : 02.03.2013
Regular Civil Appeal U/s 96 CPC: "Appeal Allowed" Page 1 of 13
RCA No.47/2012: "Smt.Shanti Devi V/s Shri Kailash Kr. Verma" DOD: 02.03.2013
APPEAL U/s 96 CPC AGAINST THE DECREE & JUDGMENT Dated 22.08.2012,
IN CIVIL SUIT No.1097/2006, TITLED AS "KAILASH KUMAR VERMA V/s Smt.SHANTI DEVI"
PASSED BY SHRI SIDDHARTHA MALIK, Ld.CIVIL JUDGEIII,TIS HAZARI COURTS,DELHI.
J U D G M E N T:
The appellant, Smt.Shanti Devi, who was defendant before the Ld.Trial Court is aggrieved by judgment/decree dated 22.08.2012, passed by the Ld.Trial Court (hereinafter referred to as "impugned judgment"), whereby the suit for permanent injunction filed by the respondent/plaintiff, bearing Civil Suit No. 1097/2006, titled as, "Kailash Kumar Verma V/s Smt.Shanti Devi" was decreed by the Ld.Trial Court.
2. For the sake of convenience, the parties in this judgment are being referred to as per their respective status before the Ld.Trial Court.
3. I have heard arguments advanced at bar by Shri Prateek Kumar, advocate, learned counsel for the defendant/appellant and Shri Abhishek, advocate, learned counsel for the plaintiff/respondent and perused the trial court record.
4. The facts of the case, as borne out from the trial court record are that plaintiff Shri Kailash Kumar Verma had purchased property bearing No.RZA19, Sitapuri Extension, PartI, New Delhi, admeasuring 100 sq.yards on 14.08.1986 from one Shri Mange Ram S/o Shri Mam Chand (hereinafter referred to as the "suit property"). Said Shri Mange Ram had executed General Power of Attorney, Agreement to Sell, WILL and two Receipts in favour of plaintiff in respect of the suit property. Thereafter, the plaintiff started residing in the suit property in the Regular Civil Appeal U/s 96 CPC: "Appeal Allowed" Page 2 of 13 RCA No.47/2012: "Smt.Shanti Devi V/s Shri Kailash Kr. Verma" DOD: 02.03.2013 year 1987. In the year 1992, the younger brother of the plaintiff namely Shri Murari Lal Verma (husband of defendant) requested the plaintiff to allow him to reside in a part of the suit property, as he was not having suitable accommodation for his family. The plaintiff permitted his brother and his family to reside in a part of the suit property. Thereafter, the aforesaid brother of the plaintiff died on 28.10.1993. The plaintiff permitted the defendant and her family to continue to reside in a part of the suit property, however, in the meantime on 12.05.2006, the plaintiff noticed that the defendant had arranged some construction material and labourers in the portion in her possession as she wanted to raise construction therein, without the permission of the plaintiff. The plaintiff immediately informed the local police about the same, but no action thereupon was taken by the police and as such, the plaintiff filed the suit bearing No.1097/2006, seeking a decree of permanent injunction against the defendant, her associates, agents and servants, thereby restraining them from raising any construction of any type in the part of the suit property which was in possession of the defendant.
5. The defendant filed her written statement and took preliminary objections that the suit filed by the plaintiff was based on forged and fabricated documents. The plaintiff and the husband of the defendant had equally contributed towards the consideration amount to purchase the suit property and as such, she has been staying in the 50% portion of the suit property in her own rights as the co owner. She further categorically stated that the documents of ownership of the part of suit property, i.e 50% were there in possession of plaintiff, which clearly showed the ownership of plaintiff as also the deceased husband of the defendant, but the plaintiff concealed those documents and created sham/bogus documents dated Regular Civil Appeal U/s 96 CPC: "Appeal Allowed" Page 3 of 13 RCA No.47/2012: "Smt.Shanti Devi V/s Shri Kailash Kr. Verma" DOD: 02.03.2013 14.08.1986 in his favour and thereafter filed the suit, claiming himself to be in adverse possession of the suit property by virtue of possession. The defendant also raised a counter claim, seeking declaration that she had acquired the right of onwership of 50 sq.yards in the suit property.
6. In replication, the plaintiff denied the averments made by defendant in her written statement reiterated the ones made by him in his plaint.
7. With these pleadings of the parties, the Ld.Trial Court vide order dated 22.04.2009 framed the following issues:
(i) Whether the plaintiff is entitled to seek relief of injunction against the defendant in respect of the portion shown red in the plan of the suit property, as prayed for? OPP.
(ii) Whether the defendant is entitled to the relief of declaration in respect of the property in her occupation, as prayed? OPD.
(iii) Relief.
8. In order to discharge the onus upon the parties, plaintiff examined himself as PW1, whereas the defendant examined herself as DW1. The plaintiff in his evidence proved the General Power of Attorney, executed by Shri Mange Ram in his favour as Ex.PW1/A; Agreement to Sell dated 14.08.1986 as Ex.PW1/B;
Affidavit dated 14.08.1986 as Ex.PW1/F; Receipt dated 14.08.1986 as Ex.PW1/D, WILL of Shri Mange Ram dated 14.08.1986 as Ex.PW1/C and a further Receipt dated 07.09.1987, executed by Shri Mange Ram in favour of plaintiff as Ex.PW1/E. None of these documents bear signatures of plaintiff. Documents qua payment of Regular Civil Appeal U/s 96 CPC: "Appeal Allowed" Page 4 of 13 RCA No.47/2012: "Smt.Shanti Devi V/s Shri Kailash Kr. Verma" DOD: 02.03.2013 HouseTax in respect of the year 200506 as Ex.PW1/H; site plan of the property as Ex.PW1/I and amended site plan as Ex.PW1/J. Whereas, the defendant produced on record the Birth Certificate of her child, dated 24.11.1989, showing the address of the suit property as Ex.DW1/1; her Ration Card dated 30.05.1995 as Ex.DW1/2 and photographs of the suit property, showing her possession as Ex.DW1/4 to Ex.DW1/9. She also placed on record the documents with regard to sanctioning of electricity connection in her favour in respect of her portion of the suit property as Ex.DW1/X.
9. The Ld.Trial Court after considering the entire evidence on record came to the conclusion that the plaintiff had been able to prove both the issues in his favour, as he had documentary evidence in his favour; whereas the defendant had miserably failed to produce any documentary evidence of her ownership. The Ld.Trial Court totally ignored the documents of possession placed on record by the defendant.
10. The defendant has challenged the impugned judgment on the following grounds:
(i) That the Ld.Trial Court erred in holding that the plaintiff had been able to establish his ownership in respect of the suit property and did not go into the discrepancies in the documents of ownership placed on record by him;
(ii) The Ld.Trial Court failed to appreciate that the suit filed by the plaintiff was full of falsehoods and he was not entitled to invoke the equitable discretionary jurisdiction of the Ld.Trial Court, as he had Regular Civil Appeal U/s 96 CPC: "Appeal Allowed" Page 5 of 13 RCA No.47/2012: "Smt.Shanti Devi V/s Shri Kailash Kr. Verma" DOD: 02.03.2013 not approached the Court with clean hands and had not only suppressed the material facts, but had stated falsehood and;
(iii) That the Ld.Trial Court did not consider the law laid down by the Hon'ble Supreme Court in case reported as, "2011 (11) SCC 438", titled as, "Suraj Lamp & Industries Pvt. Ltd. V/s State of Haryana & Anr.".
11. I have given thoughtful consideration to the arguments advanced at bar. A perusal of the suit filed by the plaintiff reveals that in para 3 he had claimed the exclusive ownership of the suit property on the basis of adverse possession apart from documents Ex.PW1/A to Ex.PW1/E. He had filed site plan Ex.PW1/1 categorically showing the defendant to be owner in possession of 50 sq.yards by showing her possession in red colour, whereas showing his possession in green colour.
12. A perusal of para 3 of the plaint and site plan Ex.PW1/1 reveals that the plaintiff was not sure of the authenticity of document Ex.PW1/A to Ex.PW1/E, therefore, besides the aforesaid documents, he took the plea of adverse possession. The defendant on the other hand had taken categorical plea that her husband and plaintiff had purchased the suit property through joint funds. The plaintiff further claimed in para Nos.3 and 4 of the plaint that he had shifted to the suit property in the year 1987 and his brother came to be allowed to stay in a part of the suit property by him in the year 1992. Both the aforesaid stands of the plaintiff have been proved to be false when he appeared in the witness box, as he had stated two different things in two different parts of his crossexamination. In one cross Regular Civil Appeal U/s 96 CPC: "Appeal Allowed" Page 6 of 13 RCA No.47/2012: "Smt.Shanti Devi V/s Shri Kailash Kr. Verma" DOD: 02.03.2013 examination he stated that he had shifted in the suit property in the year 1989 and at other place he had stated to have shifted in the suit property in the year 1990. He further categorically admitted that prior to coming into possession of the suit property, he had stayed on rent for 45 years at R.K Puram. The plaintiff did not place on record any document of his possession w.r.t the period from 1986 to 1993, whereas the defendant categorically proved on record the documents of her stay in the suit property since the year 1989. Therefore, in the suit the plaintiff had made false averments. It is trite law that one who seeks equity from the Court must do equity himself and a suit for permanent injunction which comes within the realm of equitable discretionary jurisdiction of the Civil Court cannot be granted to a person who exhibits falsehood on record. If the aforesaid falsehood stated by the plaintiff on record of the Ld.Trial Court is seen in juxtaposition with document Ex.PW1/1, then it would be apparent that the plaintiff was conscious that the defendant had right, title and interest in the 50% of the suit property, as otherwise, he would have not claimed his possession in the suit property to be adverse to the title of defendant.
13. Now, let us analyze what kind of documents of ownership have been proved on record by the plaintiff. Ex.PW1/A is the General Power of Attorney, purportedly executed by Shri Mange Ram in respect of the suit property in favour of plaintiff. The stamp paper purportedly purchased for carving out this document does not show the purpose for which the said stamp paper was purchased. Ex.PW1/B, which is Agreement to Sell between said Shri Mange Ram and plaintiff does not show the signatures of plaintiff anywhere. A document like Agreement to Sell mandatorily has to be deedpol. Said Shri Mange Ram would not have entered Regular Civil Appeal U/s 96 CPC: "Appeal Allowed" Page 7 of 13 RCA No.47/2012: "Smt.Shanti Devi V/s Shri Kailash Kr. Verma" DOD: 02.03.2013 into Agreement to Sell with a nonentity. Receipt Ex.PW1/D suggests that said Shri Mange Ram had received a sum of Rs.10,000/ from the plaintiff towards the total sale price of the suit property. If said Shri Mange Ram had received a sum of Rs. 10,000/ as the total sale consideration of the suit property and he had executed a receipt, then there was no need for him to have executed another receipt on 07.09.1987. The subsequent Receipt Ex.PW1/E does not show any reason as to why a second receipt was executed by said Shri Mange Ram. Then there is a WILL Ex.PW1/C, purportedly of late Shri Mange Ram in favour of plaintiff. The said documents should have been proved only by the executor of the said documents and not by the plaintiff, as none of these documents bear signatures of plaintiff. The learned counsel for the plaintiff has argued before this Court that Shri Mange Ram had expired and therefore, he could not be summoned to prove his signatures on the said documents. I am not impressed with this argument. The plaintiff had other means to prove the signatures of said Shri Mange Ram on the said documents and in any case, the said documents do not show that said Shri Mange Ram had entered into any Agreement in respect of the suit property with the plaintiff, as the signatures of plaintiff do not find mention in the said documents. Now, let us further examine as to whether the said documents can be held to be the documents passing on title to the plaintiff. In this regard, the Hon'ble Supreme Court in case reported as, "2011 (11) SCC 438", titled as, "Suraj Lamp & Industries Pvt. Ltd. V/s State of Haryana & Anr.". has been pleased to hold in para 16 as under:
xxxxx "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 Regular Civil Appeal U/s 96 CPC: "Appeal Allowed" Page 8 of 13 RCA No.47/2012: "Smt.Shanti Devi V/s Shri Kailash Kr. Verma" DOD: 02.03.2013 do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or 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."
xxxxx
14. It was further held in para 18 of the aforesaid judgment that sale transaction entered into through Agreement to Sell, General Power of Attorney, WILL are not transfers of sales, but they can be treated as agreement of sale on the basis of which a party can obtain specific performance or can defend possession u/s 53A of The Transfer of Property Act. Para 18 of the aforesaid judgment reads as under: xxxxx "18. We have merely drawn attention to and reiterated the wellsettled legal position that SA/GPA/WILL transactions are not "transfers" or "sales" and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said "SA/GPA/WILL transactions" may also be used to obtain specific performance or to defend possession under section 53A of TP Act. If they are entered before this day, they may be Regular Civil Appeal U/s 96 CPC: "Appeal Allowed" Page 9 of 13 RCA No.47/2012: "Smt.Shanti Devi V/s Shri Kailash Kr. Verma" DOD: 02.03.2013 relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to "SA/GPA/WILL transactions" has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision.."
xxxxx (emphasis supplied)
15. Therefore, the Ld.Trial Court should not have given any credence to the alleged title documents of the plaintiff and atleast on the basis of such documents, the plaintiff could not have been presumed to be the owner of the suit property.
16. The Ld.Trial Court further failed to apply the law laid down by the Hon'ble Supreme Court in case reported as, "AIR 2008 SC 2033", titled as, "Anathulla Sudhakar V/s P. Bucha Reddy". The defendant had categorically raised cloud upon the title of the plaintiff in the suit property. Therefore, suit simplicitor seeking permanent injunction was not maintainable. The relevant extracts of the said judgment are as under:
xxxxx
11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by Regular Civil Appeal U/s 96 CPC: "Appeal Allowed" Page 10 of 13 RCA No.47/2012: "Smt.Shanti Devi V/s Shri Kailash Kr. Verma" DOD: 02.03.2013 the defendant, a suit for an injunction simplicitor will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction.
Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiffs title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is Regular Civil Appeal U/s 96 CPC: "Appeal Allowed" Page 11 of 13 RCA No.47/2012: "Smt.Shanti Devi V/s Shri Kailash Kr. Verma" DOD: 02.03.2013 only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
xxxxx (underlining which is mine is emphasized)
17. The suit simplicitor for permanent injunction filed by the plaintiff was further not maintainable, as the same was barred U/s 41 (h) of the Specific Relief Act, as the plaintiff had an alternative, efficacious remedy of filing a suit for specific performance based upon Ex.PW1/A to Ex.PW1/E against the rightful owner and had further efficacious remedy of seeking relief of declaration. Regular Civil Appeal U/s 96 CPC: "Appeal Allowed" Page 12 of 13 RCA No.47/2012: "Smt.Shanti Devi V/s Shri Kailash Kr. Verma" DOD: 02.03.2013
18. Therefore, the findings of the Ld.Trial Court on Issue No.(i) cannot be sustained.
19. As regards the findings of the Ld.Trial Court on Issue No.(ii) is concerned, I do not find any flaw therein, as the Ld.Trial Court rightly held the issue to be against the defendant. The findings of the Ld.Trial Court on the said issue have not been seriously disputed before me in the appeal. In this view of the matter, the impugned judgment stands modified to the effect that issue No.(i) is decided in favour of defendant and against the plaintiff. The plaintiff was not entitled to seek the relief of permanent injunction, as he had an alternative, efficacious remedy of filing a suit for declaration and possession once the cloud upon his title had been raised by the defendant. The suit filed by the plaintiff was liable to be dismissed. It is ordered accordingly and appeal stands allowed. Parties are left to bear their own costs.
20. Decree Sheet be drawn accordingly.
21. The trial court record be sent back forthwith to the Ld.Trial Court along with copy of this judgment.
22. Appeal file be consigned to Record Room.
Dictated & Announced in the (Vinod Yadav)
open Court on 02.03.2013 Addl. District JudgeIV/SouthWest
Dwarka District Courts: New Delhi
Regular Civil Appeal U/s 96 CPC: "Appeal Allowed" Page 13 of 13