Delhi District Court
Hira Lal vs Om Prakash on 5 May, 2025
In the court of Shri Naresh Kumar Laka
District Judge - 07, Central District,
Tis Hazari Courts, New Delhi
CS DJ No. 552/17
CNR No. DLCT- 01-002010-2017
In the matter of:
Hira Lal (Now deceased)
Through LRs:
1. Seema w/o Late Hira Lal
2. Master Shivam S/o Late Hira Lal
3. Master Akshit S/o Late Hira Lal
(Plaintiffs No.2 and 3 being minors through their Mother
and natural guardian plaintiff No.1)
All R/o H. No.388, Gali No.1, Block-A,
Baba Colony, Burari, Delhi.
......Plaintiff
versus
Sh. Om Prakash
S/o Late Sh. Leela Ram
R/o H.No.388-A, A-Block, Baba Colony,
Salempur Majra, Burari, Delhi
........... Defendant
Date of institution of suit : 06.02.2017
Arguments concluded on : 07.04.2025
Date of decision : 05.05.2025
Result : Decreed
CS DJ 552/17 Page no.1 of 15
Hira Lal Vs. Om Prakash
SUIT FOR RECOVERY OF POSSESSION,
PERMANENT INJUNCTION AND DAMAGES
JUDGMENT
The present suit was filed by Shri Hira Lal. However after his death, his legal representatives were impleaded in his place but for the sake of convenience, the original parties, namely, Sh. Hira Lal and Om Prakash are being referred to as plaintiff and defendant. It is claimed by plaintiff that mother of the parties, namely, Smt. Murti Devi was the actual owner of the property bearing H. No. 388, A Block, Baba Colony, Salempur Majra, Burari Delhi (measuring 250 sq. yards) (in short, 'suit property') and she expired on 28.11.2000. It is further claimed that Smt. Murti Devi during her life time, transferred the aforesaid property to her husband, namely, Sh. Leela Ram. It is alleged that on account of misbehaviour of defendant, the parents of parties disowned him from all movable and immovable properties by way of publication dated 19.07.2005. Several complaints were also lodged by the father of the plaintiff against the defendant for his misconduct, theft and misbehaviour. Thereafter, Sh. Leela Ram sold the said property to his son (plaintiff) by way of usual set of documents i.e. GPA, Will, Agreement etc. all dated 12.05.2014 and Sh. Leela Ram expired on 26.11.2015, therefore, the plaintiff became the absolute owner of the suit property.
2. It is alleged that on the request of the defendant, plaintiff allowed him to reside in two rooms of the suit property on temporary license basis. It is disclosed that the defendant had filed a false suit for the relief of permanent injunction bearing CS No. 246/14 which was dismissed as withdrawn on 29.09.2016 and his stay application was also dismissed. It CS DJ 552/17 Page no.2 of 15 Hira Lal Vs. Om Prakash is claimed that the plaintiff terminated the license of the defendant vide legal notice dated 02.08.2016 but despite that, the defendant did not vacate the aforesaid property. It is claimed that portions in possession of the defendant can fetch monthly rent of Rs. 10,000. It is further disclosed by the plaintiff that after terminating the said license, he sold 100 sq yards area out of total 250 sq. yards of the said property to one Sh. Chaman Singh on 17.08.2016 but the defendant did not vacate the property consisting two rooms, therefore, the said deal could not be materialised for remaining portion. Hence the present suit.
Defence in brief
3. The defendant contested the present suit by filing written statement and amended written statement (which was allowed on 18.02.2020) wherein it is alleged that the plaintiff has filed a false and frivolous suit and he had manipulated several documents including the documents relied by him. It is also claimed that the documents submitted by the plaintiff to Delhi Jal Board for obtaining water connection in his name on 21.04.2016 from Delhi Jal Board were executed on 09.04.2016 whereas Sh. Leela Ram (father of parties) died in November, 2015.
Replication, issues and trial
4. The plaintiff filed replication to the written statement of the defendant wherein the averments made in the plaint were reiterated/ reaffirmed and the allegations of the defendant were controverted especially he denied the documents 09.04.2016. From the pleadings of the CS DJ 552/17 Page no.3 of 15 Hira Lal Vs. Om Prakash parties, following issues were framed on 06.06.2017:
1. Whether the plaintiff is entitled for the decree of possession, as prayed for by the plaintiff in the plaint? OPP
2. Whether the plaintiff is entitled for the permanent injunction, as prayed for by the plaintiff in the plaint? OPP
3. Whether the plaintiff is entitled to the damages? If so, at what rate and for which period? OPP
5. In order to prove his case, the wife of plaintiff examined herself (Ms. Seema) as PW-1 and Sh. Mahesh Pal as PW-2 and Sh. Amarnath as PW-3. Defendant also led evidence and examined Sh. Subhash Chander Kaushik as DW-1, Sh. Anirudh Kumar Sinha as DW-2, Sh. Rajendra Singh Rawat as DW-3 and himself (Om Prakash) as DW-4.
6. I have heard arguments from Sh. M.P. S. Kasana, Ld. Counsel for the plaintiff and Sh. V.V. Arya, Ld. Counsel for the defendant. Parties also filed written arguments on record. Record perused.
REASONS FOR DECISION Issue No. 1: Whether the plaintiff is entitled for a decree of possession, as prayed for by the plaintiff in the plaint? OPP
7. The plaintiff claimed that her mother was the owner of the suit property and she executed standard set of documents like GPA, agreement, affidavit, Will etc., all dated 18.02.1990 in favour of her husband (father of the parties). In the written statement, the defendant denied the execution of aforesaid documents but the stand with regard to ownership of the mother has been partly denied and partly admitted. In the cross-examination of the defendant, he categorically admitted that mother CS DJ 552/17 Page no.4 of 15 Hira Lal Vs. Om Prakash of the parties was the actual owner of the suit property. The plaintiff relied on record usual set of documents in favour of his father which were executed by his mother and that his father transferred the said property in favour of the plaintiff on the basis of usual set of documents like, GPA, agreement, Will, all dated 12.05.2014.
8. The defendant claimed that the said documents are false and even there were other set of documents all dated 09.04.2016 which were executed fraudulently in the name of father of the parties whereas the father of the parties already expired in the year 2015. In the replication, the plaintiff denied the execution of said documents of 09.04.2016. In the opinion of this court, when the plaintiff is not relying on the said documents dated 09.04.2016, they cannot be read against the plaintiff even if he had wrongfully got executed the said document for obtaining water connection. This court is primarily required to examine the case of the plaintiff for the documents on the basis of which he is claiming his right in the property superior to the defendant especially when defendant did not claim his right on the basis of any document in his favour.
9. Ld. Counsel for the defendant vehemently argued that the documents executed by Smt. Murti Devi in favour Sh. Leela Ram (her husband) are not valid documents as 'agreement to gift' is not a registered document and in the Will, there is no address of the attesting witnesses mentioned. It is further stated that no consideration amount was paid to Smt. Ram Murti Devi by Sh. Leela Ram. Therefore, the said documents are not admissible in law for want of consideration amount and registration as per Section 17 of the Indian Registration Act, 1908.
CS DJ 552/17 Page no.5 of 15
Hira Lal Vs. Om Prakash
10. An argument is frequently raised that after the judgment of the Hon'ble Supreme Court of India in the famous case of Suraj Lamp & Industries (P) Ltd. v. State of Haryana, (2012) 1 SCC 656, no ownership right in an immovable property can be recognized on the basis of GPA, agreement to sell or unregistered documents. To understand the substantive laws relating to said documents, the background of the said case and related judgments are enumerated in the subsequent paragraphs.
11. An SLP No.5804/2009 in the case of Suraj Lamp & Industries (P) v. State of Haryana & Anr was filed before Hon'ble Supreme Court of India. The facts of the said SLP were - 'A' claimed that 'B' had sold 2.5 acres of land in Gurgoan to 'A' by means of an Agreement of Sale, General Power of Attorney and a Will in the year 1991 for a consideration of Rs.716,695/-. Thereafter 'A' verbally agreed to sell a part of the said property to 'C' for Rs.60 lakhs in December 1996. But 'C', instead of proceeding with 'A', directly got in touch with 'B' in 1997 and got executed and registered a GPA in favour of C for the entire 2.5 acres of land and also illegally got cancelled the earlier GPA in favour of 'A'. In the year 2001, 'A' lodged a criminal complaint against 'B' and 'C'. When no action was taken, 'A' filed an RTI application to the police agency but finding contradictory replies, 'A' approached CIC and High Court and being aggrieved, he filed the above SLP before the Hon'ble Apex Court. On 15.05.2009, Hon'ble Supreme Court observed that the matter involves an issue whose seriousness was underestimated and direction was given to the States of Punjab, Haryana, Delhi, Uttar Pradesh and Maharashtra to file a report about PoA-sale and the steps being taken or to be taken to deal with CS DJ 552/17 Page no.6 of 15 Hira Lal Vs. Om Prakash the chaotic situation and confusion arising from such transactions.
12. On 11.10.2011, in the aforesaid case, Hon'be Justices R.V. Raveendran, A.K. Patnaik and H.L. Gokhale, three Judges Bench of Hon'ble Apex Court passed, inter alia, the following order:
"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 the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable 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.
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 authorises 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 1-A 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. 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.
Therefore, an SA/GPA/will transaction does not convey any title nor creates any interest in an immovable property. The observations by the Delhi High Court in Asha M. Jain v. Canara Bank [(2001) 94 DLT 841] , that the "concept of power-of-attorney sales has been recognised as a mode of transaction" when dealing with transactions by way of SA/GPA/will are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/will transactions are some kind of a recognised or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognise or accept SA/GPA/will transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law."
13. After passing of the aforesaid judgment, a case, namely, CS DJ 552/17 Page no.7 of 15 Hira Lal Vs. Om Prakash Ramesh Chand v. Suresh Chand, came up for hearing before Hon'ble Apex Court and after hearing the matter, it was remanded back to the High Court of Delhi for giving a fresh decision in view of the observations as made in the case of Suraj Lamp case (supra).
14. On April 9, 2012, Hon'ble Justice Valmiki J. Mehta, High Court of Delhi decided the said case of Ramesh Chand v. Suresh1 and observed as under:
"2. Before I proceed to dispose of the appeal, and which would turn substantially on the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. (supra), it is necessary to reproduce certain paras of this judgment of the Supreme Court, which read as under:
"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 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.
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.
3. A reference to the aforesaid paras shows that unless there is a proper 1 RFA No.: 358/2000 decided on 09.04.2020, High Court of Delhi.
CS DJ 552/17 Page no.8 of 15
Hira Lal Vs. Om Prakash
registered sale deed, title of an immovable property does not pass. The Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will (para 14). Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will.
4. There is also one other aspect which needs to be clarified before proceeding ahead and which is whether a power of attorney given for consideration would stand extinguished on the death of the executant of the power of attorney. The answer to this is contained in illustration given to Section 202 of the Contract Act, 1872, and the said provision with its illustration reads as under:
"Section 202. Termination of agency, where agent has an interest in subject matter.-- Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
Illustrations
(a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death."
The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney.
CS DJ 552/17 Page no.9 of 15
Hira Lal Vs. Om Prakash
The summarization is that the documents which were executed by the father-Sh. Kundan Lal in favour of the respondent No. 1/plaintiff/son dated 16.5.1996 would not stricto sensu confer complete ownership rights, however, the said documents would create rights to the extent provided for by Section 202 of Contract Act, 1872 and ownership on account of devolution in terms of the Will after the death of the testator in terms of relevant provisions of Indian Succession Act, 1925. Of course, I hasten to add that so far as the facts of the present case are concerned, I am not giving the benefit of the doctrine of part performance under Section 53A of the Transfer of Property Act, 1882 to the respondent No. 1/plaintiff inasmuch as learned counsel for the appellant is correct in arguing that the benefit of the said doctrine cannot be given as the physical possession of the property was not transferred to the respondent No. 1/plaintiff by the father-Sh. Kundan Lal under the agreement to sell dated 16.5.1996.
7. Accordingly, even if we do not give the benefit of Section 53A of the Transfer of Property Act, 1882 to the respondent No. 1/plaintiff, the respondent No. 1/plaintiff however would be entitled to benefit of Section 202 of the Contract Act, 1872 and the fact that ownership had devolved upon him in terms of the Will executed by the father in his favour on 16.5.1996. The argument urged on behalf of the appellant by his counsel that power of attorney, Ex. PW 1/6 ceased to operate after the death of the father is an argument without any substance in view of the provision of Section 202 of the Contract Act, 1872 alongwith its illustration and which shows that power of attorney given for consideration operates even after the death of the executant.
12. In view of the aforesaid facts and the validity of the documents, being the power of attorney and the Will dated 16.5.1996, the respondent No. 1/plaintiff would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the appellant/defendant No. 1. In fact, I would go to the extent saying that by virtue of para 14 of the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) taken with the fact that Sh. Kundan Lal has already died, the respondent No. 1/plaintiff becomes an owner of the property by virtue of the registered Will dated 16.5.1996. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof."
CS DJ 552/17 Page no.10 of 15
Hira Lal Vs. Om Prakash
15. From the perusal of the record, it is seen that the complete set of documents i.e. GPA, agreement to gift, Will etc. were executed simultaneously as part and partial of one single transaction and it is observed that same inks were used for signing the said documents and putting the thumb impressions. However, this court agrees with the submission of the Ld. Counsel for the defendant that 'agreement to gift' is not valid because same is not a registered document. Therefore, this court will not read the said document. However, from the perusal of the GPA, it is observed that complete name and addresses of the attesting witnesses were mentioned and it appears that in haste, the said details were left to be mentioned in the other documents. But when name/details of the parties are found mentioned in one of the such documents, same can be read for other documents which are part and partial of same set of documents. It is also observed that the signatures and thumb impressions are same or in same style. Therefore, this court can read address of the said witnesses from the GPA itself.
16. As per law, a Will is mandatorily required to be attested by two attesting witnesses but there is no provision under law that on account of absence of addresses of the said witnesses, the said document cannot be read. It is also noticed that in the entire examination in chief as well as cross-examination of PW-1 Smt. Seema, when the said documents were being exhibited as Ex. PW1/2 (colly), not even a single objection was raised by the Ld. Counsel for the defendant on the mode of proof of the said documents. However, now the ld. Counsel for the defendant argued that there is no date of notary public who attested the said document. As per law, the GPA and Will is not required to be compulsorily attested by any CS DJ 552/17 Page no.11 of 15 Hira Lal Vs. Om Prakash Notary public nor they are required to be registered. Therefore, if there is no date of attestation of the said documents, no benefit of the same can be given to the defendant.
17. Ld. Counsel for the defendant raised a contention in the written argument that in the Will dated 18.02.1990, the description of the property bequeathed has not been mentioned. However, from the perusal of the said Will, it is seen that same was mentioned in para no.1 and in the subsequent paragraphs, same has been referred to as 'same/said property' which means that there is no doubt about the property bequeathed.
18. He further argued that in cross-examination of PW-1 Smt. Seema, it was admitted that no consideration amount was ever paid in any of the transaction of the year 1990 and 2014 and even in the documents executed of the said year, no consideration amount was mentioned, therefore, there was no sale transaction proved on record from Smt. Murti Devi to Sh. Leela Ram and from Sh. Leela Ram to Sh. Hira Lal. The transactions were between the family members and even if there is no proper sale transaction proved on record, certain rights still exist based on the GPA and Will in view of precedents of law quoted above.
19. In the second set of documents, an objection was raised by the Ld. Counsel for the defendant that 'agreement to gift' allegedly executed by Sh. Leela Ram in favour of Sh. Hira Lal was not a registered document. Accordingly, this court will not read the said document. However, there is GPA, family Will, another Will deed, possession letter and affidavit, all dated 12.05.2014. Despite lengthy cross-examination of said witness CS DJ 552/17 Page no.12 of 15 Hira Lal Vs. Om Prakash (PW-2 Sh. Mahesh Pal), nothing contrary came on record to disbelieve his testimony. Ld. Counsel for the plaintiff claimed that the said witness Sh. Mahesh Pal does not know the address of the shop of Sh. Leela Ram and therefore, he is not a credible witness. Even if it is presumed that the said witness does not know the address of residence and shop of Sh. Leela Ram, it will not invalid the said Will which was duly proved by the attesting witness by identifying the signature and thumb impression of the testator and attesting witnesses. The said witness also identified his signature on the GPA dated 12.05.2014 in his cross-examination. It is further argued by the ld. Counsel for the defendant that the address of the Notary Public is of Mukherjee Nagar whereas the documents dated 12.05.2014 were executed at Kashmere Gate, therefore, there are contradiction of the said place. In the opinion of this court, a Notary Public may attest a document on the basis of licence issued to him and no provision of law has been shown that the said Notary Public cannot attest document in any particular area. Therefore, said argument is found meritless. Moreover, Family Will Deed which was registered at Sub-Registrar office at Kashmere Gate is an authentic document and after expiry of the testator, the same comes into effect. Although, there are two Wills of same date, one is registered and another is notarized but when they have been proved on record through the attesting witness Sh. Mahesh Pal, there is no illegality in the same when the property bequeathed is one and same.
20. From the aforesaid facts, it is established that the plaintiff Sh. Hira Lal acquired the right which were superior to the defendant on the basis of documentary evidence placed on record whereas the defendant did not have any single document to claim any right, title and interest in the CS DJ 552/17 Page no.13 of 15 Hira Lal Vs. Om Prakash suit property. The plaintiff also terminated the licence of the defendant, therefore, he has no right to retain its possession. Accordingly, said issue is decided in favour of the plaintiff and against the defendant.
Issue No. 2: Whether the plaintiff entitled for the permanent injunction, as prayed for by the plaintiff in the plaint? OPP
21. As the relief of possession has been granted to the plaintiff, the plaintiff is also entitled for the relief of permanent injunction, as prayed. As such, this issue is decided in favour of the plaintiff and against the defendant.
Issue No. 3: Whether the plaintiff is entitled to the damages? If so, at what rate and for which period? OPP
22. The plaintiff claimed damages @ Rs. 10,000 per month towards unauthorized occupational charges. The same appears to be on higher side because the defendant is in the possession of only two rooms of the suit property.. Therefore, keeping in mind the aforesaid facts and relationship between the parties, this court assess the said amount @ Rs.4000 per month as damages from the date of filing of the suit till the date of vacation of suit property. This issue is accordingly, decided in favour of the plaintiff and against the defendant.
Conclusion/Relief
23. In the light of aforesaid findings, the suit of the plaintiff is decreed as under:
CS DJ 552/17 Page no.14 of 15
Hira Lal Vs. Om Prakash
(i) A decree of recovery of possession of the suit property is passed in favour of plaintiff and against the defendant. The defendant is directed to hand over the physical possession of two rooms situated at H. No. 388, A Block, Baba Colony, Salempur Majra, Burari Delhi as shown in red colour in site plan (Ex. PW1/10), to the plaintiff within 30 days.
(ii) A decree of permanent injunction is also passed in favour of the plaintiff and the defendant is restrained to create any 3rd party interest in the suit property by way of transfer, sale, gift, lease or any other recognized mode of transfer without due process of law.
(iii) A decree of recovery of damages @ Rs. 4000 per month is also granted against the defendant. The defendant is directed to pay Rs. 4000 per month from the date of filing of the suit till the date of vacation of the suit property.
24. Cost of the suit is also awarded to the plaintiff as per rules, which will be reflected in the decree-sheet. Decree-sheet be prepared accordingly. The execution of the decree will be permissible after filing of deficient court fee, if any. File be consigned to record room.
NARESH
Announced in the open court KUMAR
today i.e.05.05.2025 LAKA
(Naresh Kumar KUMAR Laka)
Digitally signed by
NARESH
LAKA
District Judge-07,
Date: 2025.05.06
14:33:14 +0530
Central District
Tis Hazari Court, Delhi.
CS DJ 552/17 Page no.15 of 15
Hira Lal Vs. Om Prakash