Delhi District Court
Kunwar Pal Singh vs Rita Devi on 1 April, 2025
IN THE COURT OF SH. SUNIL BENIWAL,
DISTRICT JUDGE-06, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI.
CS DJ No.8739/2016
CNR No.DLST01-003610-2016
Kunwar Pal Singh
Son of late Shri Chhote Singh,
R/o House No.K-1413-19, SangamVihar,
New Delhi. .....Plaintiff.
Versus
Smt. Rita Devi
Wife of Shri Badri Prasad,
R/o House No.K-1809/19(Old No.K-6/10),
Sangam Vihar,
New Delhi. .....Defendant
Date of Institution : 19.08.2016
Date of arguments : 29.03.2025
Date of Judgment : 01.04.2025
Suit for recovery of possession, damages and injunction
JUDGMENT
1. The plaintiff has filed the present suit against defendant seeking decree of possession, permanent injunction and CS DJ No.8739/2016 page 1 of 19 damages in respect of suit property comprising a room and toilet bearing no.K-1809/19 (Old No.K-6/10), admeasuring 25 sq yards situated at Sangam Vihar, New Delhi.
2. Briefly stated the case of the plaintiff is that the plaintiff is owner in possession of property bearing no.K-1809/19 (Old No.K-6/10), admeasuring 25 sq yards situated at Sangam Vihar, New Delhi which falls in Khasra No.1620. Plaintiff stated to have purchased the suit property, which was an open piece of land, from defendant on 04.04.2015 for a sum of Rs.1,50,000/-. The plaintiff paid the entire consideration amount to the defendant and thereafter, documents of sale i.e. Agreement to Sell, General Power of Attorney, Will, Receipt etc were executed by the defendant in favour of the plaintiff.
3. That after purchase of the said plot/land from defendant, the plaintiff constructed a room and a toilet on the said piece of land. Said construction was raised by the plaintiff after 4-5 months of the purchase of the said piece of land. Thereafter, plaintiff got installed electricity connection in the suit property. That the defendant sometime on 04.09.2015 approached the plaintiff and requested him to allow her to reside in the suit property for a period of four months as she was in the process of searching a house for her residence.
CS DJ No.8739/2016 page 2 of 19 Since the defendant was erstwhile owner of the suit plot, plaintiff keeping in view the past relationship, allowed defendant to use and occupy the said room and toilet for four months, however, no licence fee was agreed to be charged from the defendant. The licence to use and occupy the suit property was executed on 04.09.2015.
4. That after expiry of four months, the plaintiff on 04.01.2016 requested the defendant to vacate the portion in her occupation but the defendant requested the plaintiff to allow her to say in the suit property for a further period of one month i.e. till 04.02.2016, which request of defendant was acceded to by the plaintiff. On 04.02.2016, the plaintiff again requested the defendant to vacate the suit property but defendant was not responsive and did not assign any plausible reason for not vacating the suit property. After some time in March 2016, the plaintiff again requested the defendant to vacate the suit property but defendant declined and extended threat to falsely implicate him in false case of molestation. Plaintiff made a complaint against defendant on 21.06.2016 to the Deputy Commissioner, Sarita Vihar, New Delhi. That the plaintiff is stated to be not interested to keep the defendant as his licencee any more and her licence was already terminated after expiry of 04.02.2016 from her CS DJ No.8739/2016 page 3 of 19 induction as a licencee qua the suit property.
5. That since the possession of the defendant is stated to be illegal and unlawful in respect of suit property, the plaintiff has claimed damages from defendant towards use and occupation @ Rs.2000/- per month. Defendant sent legal notice dated 07.06.2016 to the defendant calling upon the defendant to vacate the suit premises and pay charges towards use and occupation @ Rs.2000/- per month but the defendant was not responsible to the said notice, as such the plaintiff was constrained to file the present suit.
6. Summons of the suit were issued to the defendant.
Defendant appeared and filed written statement.
7. Defendant in her written statement has raised the defence that the no such sale transaction as alleged by the plaintiff took place between plaintiff and defendant, whereas infact defendant had taken a loan of Rs.1,50,000/- from the plaintiff for 11 months on interest @ 4% per month. The plaintiff while advancing said loan had taken signatures of the defendant on certain blank documents to prepare the alleged sale documents fraudulently.
8. That defendant has purchased the suit property for Rs.6,00,000/-, and as per circle rate the cost of the suit property is more than Rs.8,00,000/-, as such from no stretch CS DJ No.8739/2016 page 4 of 19 of imagination it can be said that the plaintiff has purchased suit property from the defendant for Rs.1,50,000/- only. It is further stated that defendant admitted in his application dated 02.06.2016 to the police which he has annexed with the present suit and which is addressed to DCP, Sarita Vihar that police official at Police Station refused to take his application/complaint and one Sub Inspector Pramod Kumar got recorded from plaintiff and his brother in law that Rs.1,50,000/- was given to the defendant against interest.
9. Defendant further stated that she had already repaid the entire interest and loan to the plaintiff but plaintiff did not return property documents which he had taken from the defendant as security at the time of advancing loan of Rs.1,50,000/- to the defendant. It is also stated that defendant had sent legal notice dated 10.08.2016 to the plaintiff seeking return of original title documents of the property. Defendant denied the case setforth by the plaintiff in toto and sought dismissal of the suit.
10. Vide order dated 24.01.2017 following issues were settled:
(1)Whether the plaintiff is rightful owner of property bearing No.K-1809/19 (Old No.K-6/10) admeasuring 25 sq yards situated at Sangam Vihar, New Delhi by way of Agreement to Sell, General Power of Attorney,Will and Receipt etc CS DJ No.8739/2016 page 5 of 19 executed in his favour by the defendant?OPP (2)Whether the plaintiff is entitled to a decree of injunction thereby restraining the defendant from selling, transferring, alienating and/or creating third party interest in the suit property?OPP (3)Whether the plaintiff is entitled to damages, if yes, at what rate and for which period?OPP (4)Whether the plaintiff is entitled to any relief.
11. PW1 Kanwar Pal Singh tendered his evidence by way of affidavit Ex.PW1/A on the lines of averments made in the plaint. He relied upon Agreement to Sell and Purchase, General Power of Attorney, Will, Receipt, possession letter and affidavit in favour of plaintiff executed by defendant as Ex.PW1/1 and Ex.PW1/2 (colly OSR), site plan as Ex.PW1/3, electricity bill dated 07.06.2016 as Ex.PW1/4(OSR), complaint dated 02.06.2016 as Ex.PW1/5 (OSR), legal notice dated 07.06.2016 as Ex.PW1/6 and receipt of legal notice dated 07.06.2016 as Ex.PW1/7. He was cross examined and discharged.
12. PW2 Ct. Vipin had brought summoned record i.e. CMTS register and deposed that vide entry no.63 dated 03.06.2016, a complaint was received from Kunwar Pal Singh which was forwarded to ACP Office, Ambedkar Nagar on 08.06.2016 CS DJ No.8739/2016 page 6 of 19 and copy of the same exhibited as Ex.PW2/A (OSR), and that their office does not retain photocopy of complaint. Defendant did not prefer to cross examine this witness.
13. DW1 Reeta Devi entered into witness box and tendered her evidence by way of affidavit Ex.DW1/A. She relied upon copy of her ID proof as Ex.DW1/1 (OSR), copy of representation to Lt Governor dated 08.06.2016 as Ex.DW1/2, copy of complaint dated 10.06.2016 to DCP Sarita Vihar as Ex.DW1/3, copy of complaint to SHO Sangam Vihar dated 27.05.2016 as Ex.DW1/4, legal notice dated 07.06.2016 as Ex.DW1/5, original electricity bill in the name of defendant dated 08.04.2016 as Ex.DW1/6, original electricity bill in the name of plaintiff dated 06.08.2016 as Ex.DW1/7, copy of MLC no.11918 issued by Batra Hospital as Ex.DW1/8, copy of title documents in favour of defendant executed by Smt. Ketki Singh dated 01.08.2014 i.e. GPA, Agreement to Sell, Will, Receipt, Possession Letter and Affidavit as Ex.DW1/9 (colly), copy of letter dated 18.06.2016 made to Manager BSES RPL for change of name in electricity connection as Ex.DW1/10, copy of corrigendum dated 12.08.2016 as Ex.DW1/11, copy of reply dated 10.08.2016 to legal notice dated 07.01.2016 as Ex.DW1/12, copy of legal notice dated 10.08.2016 sent by CS DJ No.8739/2016 page 7 of 19 defendant to plaintiff as Ex.DW1/13 and copy of reply dated 15.09.2016 sent by plaintiff as Ex.DW1/14. She was cross examined and discharged.
14. I have heard arguments and perused the record.
15. In the background of the facts of the present case, the question to be adjudicated upon herein is as to whether plaintiff has become owner of the suit property by virtue the documents Ex. PW1/1 and Ex.PW1/2 alleged executed by defendant in favour of plaintiff and whether the defendant had sold the suit property to the plaintiff, as alleged by the plaintiff?
16. This suit being a civil suit has to be decided on the basis of preponderance of probabilities, as held in Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, "A civil case is decided on balance of probabilities.
17. Section 101 of the Evidence Act, 1872 defines " burden of proof" and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. In such case the court is to examine as to whether the person upon whom the burden lies has been able to discharge his burden, and until Court arrives at such conclusion, Court has not to proceed on the basis of CS DJ No.8739/2016 page 8 of 19 weakness of opposite party.
18. The plaintiff herein has claimed that he has purchased suit property from the defendant, however, defendant has denied any such sell transaction. Ownership of defendant is admitted by the plaintiff and claimed title through defendant. In the judgment of Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, it has been held that admission in the written statement cannot be allowed to be withdrawn. In view of this legal position of the Evidence Act, now it is for the plaintiff to prove that he is owner of the suit property having been purchased the same from defendant.
19. Plaintiff stated to have purchased the suit property from the defendant by way of unregistered documents Ex.PW1/1 and Ex.PW1/2 ; defendant is in possession of the suit property claiming himself to be absolute owner of the suit property contenting that he never sold the same to the plaintiff as alleged by plaintiff; the plaintiff has not filed any suit for specific performance against the defendant on the basis of unregistered documents Ex. PW1/1 and Ex. PW1/2; no sale deed has been executed by the defendant in favour of the plaintiff.
20. Section 5 of the Transfer of Property Act, 1882 ( in short CS DJ No.8739/2016 page 9 of 19 ' TP Act' ) defines ' transfer of property' as under:− " 5. Transfer of Property defined: In the following sections "
transfer of property " means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself for to himself) and one or more other living persons; and " to transfer property" is to perform such act."
21. Further Section 54 of the TP Act defines ' sales' thus : "Sale"
is a transfer of ownership in exchange for a price paid or promised or part− paid and part−promised. Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."
CS DJ No.8739/2016 page 10 of 19
22. Section 53 A of the TP Act defines ' part performance ' thus :
" Part Performance.− Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. And the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and had done some act in furtherance of the contract. And the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
CS DJ No.8739/2016 page 11 of 19
23. Section 17 of the Indian Registration Act, 1908:− " 17.
Documents of which registration is compulsory. (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866 ( 20 of 1866), or the Indian Registration Act, 1871 ( 8 of 1871), or the Indian Registration Act, 1877 ( 3 of 1877), or this Act came or comes into force, namely− (a) Instrument of gift of immovable property; (b) other non−testamentary instruments which purport or operate to create, declare, assign, limit or extinguish , whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
24. It is settled law that title of immovable property above the value of Rs. 100/− can only be transferred by way of a registered instrument as prescribed Under Section 17 of the Indian Registration Act, 1908 and as recognized under Section 54 of the Transfer of the Property Act by way of documents of sale. As held in AIR 1969, SC 1316, the documents of which registration is necessary under the transfer of Property Act ( such as under Section 54 of the TP Act) but not under the Registration Act fall within the scope CS DJ No.8739/2016 page 12 of 19 of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction of acting any immovable property comprise therein and do not affect any such immovable property.
25. In the case of M. L. Aggarwal Vs. Oriental Bank of Commerce & Ors, 128 (2006) DLT 407 (DB) it was held :
" The petitioner has only produced an agreement to sell, will and a power of attorney and a receipt for payment of money but these in our opinion do not constitute a sale. Under Section 17 (1) (b) of the Registration Act, Sale of an immovable property can only be by a registered deed. In our opinion, the petitioner has no right, title or interest in the suit property as he has not purchased it by any registered sale deed. An immovable property cannot be purchased by a mere power of attorney or agreement to sell."
26. Furthermore, said ratio was further reiterated by Hon'ble Delhi High Court in AIR 2003, Delhi 120 titled G. Ram Vs. DDA wherein it is mentioned that transfer of immovable property can only be affected by executing a registered documents. Merely making an agreement of sale or execution of power of attorney cannot transfer right, title or interest of any immovable property.
27. This court is guided by the law laid down by the Hon'ble CS DJ No.8739/2016 page 13 of 19 Supreme Court in the case of Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, reported as 183 (2011) DLT 1 (SC) holding that unregistered documents of title relied upon such as GPA , Agreement to Sell, Will and receipt would not confer ownership rights in respect of immovable property in favour of transferee. The only way a contract of sale can create title to immovable property is by way of a deed of conveyance as defined under Section 54 of the Transfer of Property Act and registered in pursuance of the provisions of Section 17 of The Registration Act, 1908. No such document has been executed in favour of plaintiff by the defendant.
28. Section 27 of Indian Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an obligation to set forth in the instrument all facts and circumstances which affects the chargeability of duty on that instrument. Section 17 of the Registration Act, 1908 makes deed of conveyance compulsorily registrable. The transfer of an immovable property can only be by a deed of conveyance and in the absence of a deed of conveyance ( duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred. With regard to the legal validity of such documents i.e. agreement to sell, CS DJ No.8739/2016 page 14 of 19 GPA, Will and receipt, the Hon'ble Supreme Court in the case of Suraj Lamps and Industries Pvt. Ltd. Vs. State of Haryana reported in AIR 2009 SC 3077 has held that such documents cannot create any right in respect of immovable property. The only way a contract of sale can create title to immovable property is by way of a deed of conveyance as defined under Section 54 of the Transfer of Property Act and registered in pursuance of the provisions of Section 17 of The Registration Act, 1908. No such document has been executed in favour of plaintiff by the defendant.
29. Further, in the case of Ramesh Chand Vs. Suresh Chand reported in 188 (2012) DLT 538 the Hon'ble Delhi High Court interpreted the judgment of the case of Suraj Lamps (supra) and was pleased to hold that right to possess immovable property arises not only from a complete ownership right but also by having a better title. In the present case plaintiff has claimed title on the basis of unregistered GPA, Agreement to Sell, Payment receipt and the Will but the execution of said unregistered documents not proved as per law. None of these documents are registered. Furthermore even if said documents were executed by the defendant in favour of plaintiff, the same would not create any title in favour of plaintiff and the CS DJ No.8739/2016 page 15 of 19 defendant is still owner of the suit property. Since there is no registered sale deed executed in favour of the plaintiff in respect of the suit property in accordance with provisions of Transfer of Property Act, 1882, the plaintiff is not the owner of the suit property premises and not entitled for the relief of possession, damages/mesne profits, permanent and mandatory injunction as prayed for in the suit. The law laid down the Hon'ble Supreme Court in SLP (C) No. 13917 of 2009 titled as Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana & Ors. is squarely applicable in the facts of this case.
30. It appears unreasonable that the defendant had sold the suit property to the plaintiff and had again approached to the plaintiff for the possession of the suit property for 4-5 months, and the plaintiff allowed the defendant to reside in the suit property without any licence fee/rent. All these facts do not inspire confidence in the story setforth by the plaintiff. The alleged unregistered documents executed by the defendant in favour of plaintiff have no value in the eyes of law.
31. Admittedly the defendant is in possession of the suit property. The plaintiff allegedly have derived the title through documents Ex. PW1/1 and Ex. PW1/2 but by no CS DJ No.8739/2016 page 16 of 19 stretch of imagination by virtue of these unregistered documents, the plaintiff can be considered as the owner of the suit property having right, title or interest.
32. No witness, even witnesses to the alleged sale documents Ex.PW1/1 and Ex.PW1/2, examined by plaintiff to substantiate his claim that defendant sold the suit property to the plaintiff. Plaintiff claimed to have constructed the suit property but herein also plaintiff did not bother to examine any witness or contractor/builder or even material supplier or any documents in this regard to substantial his claim to have constructed the suit property. Further, this court finds force the contention of Ld counsel for defendant that, as defendant had purchased the suit property for Rs.6 lakh and the circle rate of suit property is more than 8 lakh, in such scenario there no question arises for the defendant to sell suit property to the plaintiff for Rs.1,50,000/-. Plaintiff claimed that he had purchased vacant land from the defendant, whereas as per title documents filed by the defendant regarding purchase of property by her, same was built up property.
33. It is settled legal position that the plaintiff has to stand on his own legs to prove his case and he cannot draw his strength from the weaknesses in the case set up by the defendant or in the evidence adduced by him, and in this regard reliance may CS DJ No.8739/2016 page 17 of 19 be placed upon the law laid down in State of MP Vs. Nomi Singh & Anr Civil Appeal No. 3050/2015 (arising Out Of S.L.P. (civil) No. 17859 Of 2014) dated 24 March 2015 and Devender Bhati vs Chander Kanta RSA 4/2015 and CM APPL. 339/2015 & 8696/2015 dated 21 December 2015.
34. Story advanced by the plaintiff is not convincing at all and clearly depicts that the plaintiff did not approach this Court with clean hands.
35. Plaintiff has failed to prove his case beyond reasonable doubt that defendant had sold the suit property to the plaintiff and ever handed over the possession of the suit property to the plaintiff. Plaintiff has also failed to prove that he permitted the defendant in the suit property as licensee. The defendant is in continuous and in settled possession of the suit property and the plaintiff has no right to interfere in his possession.
36. In view of the above discussions and referred law, this Court is of the considered view that the plaintiff cannot be considered having right, title or interest in the suit property better than the defendant and the documents Ex. PW 1/1 and Ex.PW1/2 relied upon by the plaintiff are neither helpful nor sufficient to prove the claim of the plaintiff in the suit.
CS DJ No.8739/2016 page 18 of 19
37. Accordingly, issues no.1, 2 and 3 are decided adverse to the plaintiff.
Relief.
38. In view of above discussion, suit of the plaintiff is dismissed.
No order as to cost.
39. Decree sheet be drawn accordingly.
40. File be consigned to record room.
Announced in the open court on 01.04.2025.
Digitally
(Sunil Beniwal)
signed by
Sunil
Sunil beniwal
beniwal Date:
2025.04.02
District Judge-06(South),
09:16:29
+0530 Saket Courts, New Delhi
CS DJ No.8739/2016 page 19 of 19