Delhi District Court
Smt. Ashma W/O Sh. Anwar vs (1) Smt. Amita W/O Sh. Irfan on 18 September, 2014
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
Regular civil appeal No. 68/14
Case I.D. Number : 02402C0044332013
IN THE MATTER OF :
Smt. Ashma W/o Sh. Anwar
R/o 1601, Gali No. 17, New Mustafabad,
Delhi.94 .......Appellant
VERSUS
(1) Smt. Amita W/o Sh. Irfan
R/o H. No. 737, Gali No. 13,
Nehru Vihar, Delhi110094.
(2) Late Sh. Zaki Mohammad
(Through his LRs)
(i) Wasim Ahmad ( Son)
(ii) Rizwan Ahmad (Son)
(iii) Salman ( Son)
(iv) Shahzan Ahmad ( Son)
All R/o H. No. 1313, Gali No. 14/B,
Rajiv Gandhi Nagar, New Mustafabad,
Delhi110054. ........Respondents
RCA No. 68/14 page 1 of 26
Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
Date of Institution of Appeal :13.02.2013
Received n this Court :12.03.2014
Date of Argument : 16.09.2014
Date of Judgment/Order :18.09.2014
Decision : Appeal allowed with cost
J U D G M E N T
1. The present appeal impugns the judgment and decree dated 10.12.2012 passed by Ld. Senior Civil Judge CumRC (NE), Karkardooma Courts in suit No. 556/08 whereby the suit for possession, permanent injunction and mesne profits in respect of property bearing No. 1313, Gali No. 14 B, New Mustafabad, Delhi94 ( hereinafter called the suit property ) filed by the plaintiff/appellant has been dismissed and held that plaintiff is not entitled for any relief.
2. The brief and relevant facts in the background of which the present suit was filed by the appellant who is the plaintiff in the original suit as culled from the impugned judgment is as follows: (I) The plaintiff has filed the present suit for possession, permanent injunction and mesne profit in respect of property No. 1313, Gali No. 14B, New Mustafabad, Delhi110094 against the defendants.
(II) Plaint is founded on the facts that plaintiff purchased the property bearing No. 1313, Gali No. 14B, New Mustafabad, Delhi110094 ( hereinafter referred to as suit property) from defendant No. 1, who executed General Power of Attorney RCA No. 68/14 page 2 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. and other documents in her favour on 21.06.2006 in respect of suit property measuring 50 sq. yards out of Khasra No. 365; that defendant No. 1 handed over the peaceful possession of the suit property and plaintiff locked the same with her own locks; that on 03.07.2008 at about 06:30 p. m., plaintiff came to know that the defendant No. 2 illegally broke open the locks of property and entered the same in collusion with defendant No. 1; that on the same day plaintiff raised objection and contacted defendant No. 1 to which she could not get any clarification; that plaintiff filed a complaint with SHO PS Gokal Puri as well as DCP, North East District against the illegal act of defendant No. 1 and 2, but police officials did not take any step in the matter; that finding no other alternative, the plaintiff has filed the present suit for possession against defendants along with relief of injunction.
(III) Summons of the suit were served on the defendants. It is pertinent to mention that defendant No. 1 did not appear despite service nor the defence was filed despite opportunity. By order dated 12.05.2009, the defence of defendant No. 1 was struck off and defendant No. 1 was proceeded ex parte by order dated 01.11.2011.
3. Defendant No. 2 has contested the suit by filing the Written Statement raising preliminary objections wherein it is contended that the suit of the plaintiff is liable to be dismissed U/O 7 Rule 11 CPC; that plaintiff and defendant No. 1 are hands in glove and have filed the present suit; that defendant No. 2 is the rightful owner and in possession of suit property; that defendant No. 1 offered to RCA No. 68/14 page 3 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. sell the suit property to defendant No. 2 in May, 2008 and on 06.05.2008, an agreement was executed between defendant No. 1 and defendant No. 2 for sale of suit property against consideration of rs. 6.60 lac; that defendant No. 2 paid earnest money of Rs. 2.00 lac in presence of one Haider and agreement was executed to this effect; that rest of the amount was to be paid on or before 01.06.2008; that on 29.05.2008 defendant No. 2 paid Rs. 4,10,000/ to defendant No. 1 and defendant No. 1 executed the necessary GPA, Agreement to Sell, Will & Receipt in favour of defendant No. 2; that the remaining amount of Rs. 50,000/ was agreed to be paid on or before 08.08.2008 at the time of handing over previous chain of ownership; that defendant No. 2 was given peaceful physical possession of property by defendant No. 1; that defendant No. 1 played fraud as when chain of ownership was demanded on 25.06.2008, defendant No. 1 along with his family forcibly entered the suit property; defendant No. 2 lodged a complaint to SHO and ACP on 27.06.2008; that defendant No. 1 in connivance with her four daughters, second wife, Pramod and Anwar forcibly entered the suit property on 02.09.2008 and gave beatings to defendant No. 2's daughter s and daughterinlaw, that defendant No. 2 has filed a criminal complaint against defendant No. 1 and her associates for the offences which is pending before Ld. MM, Karkardooma Courts.
On merits, it is denied that plaintiff purchased the suit property from defendant No. 1. It is denied that plaintiff was given possession of the suit property by defendant No. 1 and is in possession of suit property. It is submitted RCA No. 68/14 page 4 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. that possession of suit property was handed over by defendant No. 1 to defendant No. 2 on29.05.2008. It is denied that on 03.07.2008, defendant No. 2 illegally broke open the locks of suit property and entered the same in collusion with defendant No. 1. It is submitted that defendant No. 2 had already been handed over the peaceful possession of suit property by defendant No. 1. All other allegations made in the plaint have been denied and a prayer has been made for dismissal of the suit with costs.
4. The plaintiff filed replication denying the contents of the WS in so far as they were contrary to the plaint. The contents of plaint were reiterated and reaffirmed.
5. On 12.05.2009 the following issues were framed by Ld. Trial Court:
(i) Whether the plaintiff has no locus standi to file the present suit ? OPD
(ii) Whether the defendant No. 2 has become the owner of the suit property by virtue of the sale documents executed in his favour ? OPD
(iii) Whether the plaintiff has concealed the material facts and has not approached the court with clean hands ? OPD
(iv) Whether the plaintiff has filed the suit in collusion with defendant No. 1 ? OPD
(v) Whether the plaintiff is entitled for the relief of possession as prayed for ? OPP
(vi) Whether the plaintiff is entitled to the relief of permanent injunction RCA No. 68/14 page 5 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. as prayed for ? OPP
(vii) Whether the plaintiff is entitled to mesne profits/ damages, if so, at what rate and for which period? OPP
(viii) Relief.
6.. The appellant have preferred the instant appeal on the ground that the impugned judgment and decree dated 10.12.2012 is not sustainable in law and facts and is passed without application of judicial mind. It is further contended that the impugned judgment and decree is not passed on the basis of the admitted and proved facts and the judgment suffers from illegality and infirmity. As mentioned the Ld. Trial Court failed to appreciate the correct facts that the appellant have purchased the suit property from respondent No. 1 on 21.06.2006 by way of the documents and also handed physical possession of the suit property to the plaintiff. As contended the Ld. Trial Court did not consider the fact that respondent No. 2 forged and fabricated the documents in his favour by way of cheating with respondent No. 1, that the respondent No. 1t never sold the suit property to the respondent No. 2, the fact was informed to the police at PS Gokal Puri. As further mentioned the respondent No. 2 forcibly entered the suit property by breaking open the lock of the respondent No. 1 and taken the possession, several complaints in this respect was made by the plaintiff to the police but no action has been taken. The appellant is the owner of the suit property and the respondent No. 2 have no right, title or interest on the basis of the documents relied by the respondent No. 2. As further mentioned the appellant has purchased RCA No. 68/14 page 6 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. the suit property on 21.06.2006 but the respondent No. 2 relied upon the documents dated 06.05.08, the possession of the suit property was never handed over to the respondent No. 2. The Ld. Trial Court failed to appreciate the facts in property perspective and reached to wrong conclusion; the Ld. Trial Judge has not applied his mind and disposed off the suit without following due process of law and considering the relevant aspects.
7. The respondent No. 1 filed counter affidavit/reply to the appeal mentioning that she sold the suit property to the appellant on 21.06.06 and received consideration. It is further mentioned that physical possession of the suit property was handed over to the appellant to allow the respondent No. 1 to reside the suit property for some time for want of alternative accommodation. As contended the respondent No. 2 obtained the signature and thumb impression of respondent No. 1 on some blank documents on the pretext of loan in good faith and she did not execute any document for sale of the suit property in favor of respondent No. 2 nor received any consideration. It is further mentioned that the respondent No. 2 along with his associates in the absence of the respondent No. 1 entered into the suit property by breaking the lock and forcibly taken physical possession of the suit property. The respondent No. 1 mentioned that she has not received any summon for notice from the Ld. Trial Court and supported the impugned judgment.
8. The respondent No. 2 on the other hand did not wish to file reply to the appeal.
RCA No. 68/14 page 7 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
9. I have heard the Ld. Counsel for the appellant and respondents.
10. Having drawn my attention to the pleadings of the parties, testimony of the witnesses and materials on record, it is submitted by Ld. Counsel for the appellant that the respondent No. 1 never never sold the suit property to the respondent No. 2 and the documents relied by the respondent No. 2 in support of his owner ship have no value in the eyes of law. It is further argued that the appellant is the owner of the suit property, the impugned judgment and decree is not sustainable in law being passed without application of judicial mind and prayed to allow the appeal.
The Ld. Counsel for the respondent No. 1 on the other hand supported the appellant and also prayed to allow the appeal contending the suit property was sold by the respondent No. 1 to the appellant only and not to the respondent No.
2. The Ld. Counsel for the respondent No. 2 supported the impugned judgment and decree and argued that the appeal filed by the appellant is not maintainable and is filed only to delay the legal proceedings in collusion with respondent No. 1. It is further argued that the respondent No. 1 did not appear before the Trial Court and therefore the version of respondent No. 1 cannot be accepted. The Ld. Counsel for the respondent argued that there is no illegality or infirmity in the impugned judgment and prayed to dismiss the appeal with heavy cost.
11. I have given my thoughtful considerations to the submissions made on RCA No. 68/14 page 8 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. behalf of the parties and gone through the trial court records.
Condonation of delay
12. Along with the appeal an application U/S 5 of the Limitation Act is filed by the appellant for condonation of delay in filing the appeal on the ground that due to the winter vacation as well as time taken in receiving the records/case file from the earlier counsel, she could not file the appeal within time. Before disposing of appeal, I propose to adjudicate upon the application of the appellant U/S 5 of the Limitation Act for condonation of delay in filing the appeal. The Ld. Counsel for the respondent denied the contentions and prayed to dismiss the appeal being barred by limitation and without any merit.
13. Section 5 of the Limitation Act contained the provision for extension of prescribed period of limitation in certain cases is reproduced herein for reference:
5.Extension of prescribed period in certain cases Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 ( 5 of 1908) may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation The fact that the appellant or the applicant was misled by any order, practice or judgment or the High Court in ascertaining or computing the prescribed period may be sufficient RCA No. 68/14 page 9 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. cause within the meaning of this section.
14. The prescribed period of Limitation for filing the appeal is 30 days from the date of the decree or order in view of Article 116 of the schedule of Limitation Act, 1963. Under Section 5 of the Limitation Act, the delay in filing the appeal may be condoned and the appeal may be admitted after the prescribed period of the limitation if the appellant satisfies the Court that she had sufficient cause for not making the appeal within such period. Although the Section 5 of the Limitation Act envisaged explanation of the delay to the satisfaction of the Court, however, there are Catena of decisions to the effect that adoption of strict standard of proof leads to grave miscarriage of public justice and approach of the Court should be pragmatic but not pedantic.
15. It is well settled principle of law that while dealing an application for condonation of delay in filing application, the court shall adopt liberal approach and the expression "sufficient cause" is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the live purpose for existence of the institution of the courts and in this regard the judgment of Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag vs. Mst. Katiji AIR 1987 SUPREME COURT1353 can be referred to and para 3 of the judgment reads as under: "The legislature has conferred the power to condone delay by enacting Section 5 "Any appeal or any application,other than an application under any of the provisions of Order XXI of the RCA No. 68/14 page 10 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. Civil Procedure Code,1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period." of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause"employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:
Ordinarily a litigant does not stand to benefit by lodging an appeal late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. "Every day's RCA No. 68/14 page 11 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other,cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
16. In this regard another judgment of the Hon'ble Supreme Court in State of Haryana vs. Chandra Mani AIR 1996 1623 is also relevant for reference and para no. 6 and 7 of the judgment read as under:
"6. In O.P Kathpalia v.Lakhmir Singh (dead), (1984) 4 SCC 66 : (AIR 1984 SC 1744), a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the RCA No. 68/14 page 12 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. delay.Delay was accordingly condoned. In Collector, Land Acquisition, Anantnag v. Mst. Katiji, (1987) 2 SCC 107 :
(AIR 1987 SC 1353), a Bench of two Judges considered the question of the limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the Court to do substantial justice to the parties by disposing of matters on merits. The expression "sufficient cause" is adequately elastic to enable the Court to apply the law in a meaningful manner which subserves the ends of the justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. This Court reiterated that the expression "every day's delay must be explained' does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. There is no presumption RCA No. 68/14 page 13 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalise justice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justiceoriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before the law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the State is the applicant. The delay was accordingly condoned. Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note making, fileushing, and passingontheuck ethos, delay on its part is less ifficult to understand though more difficult to approve. The State RCA No. 68/14 page 14 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. which represent collective cause of the community, does not deserve a litigantongrata status. The Courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal. Delay was accordingly condoned, the order was set aside and the matter was remitted to the High Court for disposal on merits after affording opportunity of hearing to the parties. In Smt. Prabha v. Ram Parkash Kalra, (1987) Supp SCC 338 : (AIR 1987SC1726), this Court had held that the Court should not adopt an injustice oriented approach in rejecting the application for condonation of delay. The appeal was allowed, the delay was condoned and the matter was remitted for expeditious disposal in accordance with law."
17. This court is required to apply the law in a meaningful manner which subserves the ends of justice, which is the life purpose for existence of the court. In the facts and circumstances of the case and to do substantial justice between the parties, as held by the Hon'ble Supreme Court in Mst. Katiji's case (supra) and Chandra Mani's case (supra), the delay in filing the application U/O 9 Rule 13 CPC is hereby condoned.
RCA No. 68/14 page 15 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
Adjudication on merits
18. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for partition, this suit is 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. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a RCA No. 68/14 page 16 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
decree".
19. 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. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
20. Both the parties i.e. appellant and respondent No. 2 are claiming their right, title and interest in the suit property through the respondent No. 1. The respondent No. 1 appeared in the appeal and by way of counter affidavit/reply to the appeal supported the case of the appellant contending that she has sold the suit property to the appellant and also handed over the physical possession of the same to her. It is also noted that before the trial court the respondent No. 1 did not appear and was therefore proceeded ex parte and issue No. 1 i.e. locus standi to file the suit by the plaintiff, issue No. 2 i.e. defendant No. 2 becoming the owner of the suit property by way of sale documents executed in his favour, issue No. 3 concealment of material facts and issue No. 4 i.e. the suit being filed in collusion RCA No. 68/14 page 17 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. with defendant No. 1 have decided by the Ld. Trial Judge against the defendant No.2/respondent No. 2. The said findings of the Ld. Trial Judge is not under challenged before this court by way of appeal and have attained finality accordingly.
21. The Ld. Trial Judge by way of findings on issue No. 5, 6 and 7 i.e. regarding the entitlement of the plaintiff dismissed the suit which is under challenged by way of this appeal. The findings of the Ld. Trial Judge on the face of it appears to be contradictory and not sustainable as on the one hand it is decided that respondent No. 2 failed to prove the ownership /right, title and interest in the suit property and on the other the suit of the plaintiff was dismissed. The plaintiff/PW1 deposed regarding her case before the Ld. Trial Judge by way of affidavit, claimed to have purchased the suit property from respondent No. 1 and received the possession. The witness denied the suggestion during crossexamination that she was never in possession of the suit property nor purchased the same. The defendant No. 2 during crossexamination categorically deposed that " I am not aware that the defendant No. 1 had sold the suit property to the plaintiff in the year, 2006." The defendant No. 1/ respondent No. 1 has supported the case of the appellant regarding selling the property as well as handing over the possession and therefore the dispute/discussion regarding the possession appears to have no place. The ratio of the judgment reported as Asha M. Jain Vs. Canara Bank & Ors. reported as 94 (2001) DLT 841 ( relied in the impugned judgment) is squarely applicable in favour of the plaintiff in the facts RCA No. 68/14 page 18 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. and circumstances of this case in view of contentions of respondent No. 1. Being a civil suit, the matter was to be adjudicated and disposed on the basis of preponderance of probabilities. The respondent No. 2 on the other hand failed to prove that the possession of the suit property was ever handed over to him by the respondent No. 1 along with the execution of the documents. In fact nothing has been mentioned regarding possession of the suit property by the defendant No. 2/respondent No. 2.
22. I have gone through the pleadings of the parties and testimony of the witnesses. It appears that the finding of the Ld. Trial Judge regarding the possession of the appellant/plaintiff as contended was rejected on the basis of minor discrepancies during her crossexamination. These findings of the Ld. Trial Judge appears not to be sustainable and have no basis. I have gone through the judgment reported as AIR 1963 SC 1405 titled Fateh Chand Vs. Balkishan Das & CM No. 11902/2011 in case title Yasin Ali Vs. Bhagwati Prasad Sharma & Anr. wherein it is held that minor discrepancies in the testimony of the witnesses will not upset the plaintiff's case. Moreover, the plaintiff has proved her case and the Ld. Trial Courts itself reached to the conclusion that defendant No. 2/respondent No. 2 has no right, title or interest in the suit property.
23. There is no dispute between the parties that respondent No. 1 was the owner of the suit property. The respondent No. 1 categorically denied having sold the suit property to the respondent No. 2 contending the documents were executed by her on the pretext of loan documents and she sold the suit property to RCA No. 68/14 page 19 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. the appellant and also handed over possession. The evidence of the parties led before Ld. Trial Court was somehow on the similar lines as contended in the plaint. Further the respondent No. 2 failed to prove that she has purchased the suit property and received the possession from the respondent No. 1/defendant No. 1. The Ld. Trial Judge also reached to the conclusion that the respondent No. 2 has no right, title or interest in the suit property. The respondent No. 2 claimed to have purchased the suit property and derived her title through the respondent No. 1 though the respondent No. 1 has denied any such sell transaction. The ownership of the appellant is admitted by the respondent No. 1. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn impugned judgment therefore does not appears to be sustainable and the appellant/plaintiff is therefore entitled for the relief as prayed in the suit.
24. It is argued by Ld. Counsel for the respondent No. 2 that on the basis of the documents relied by the appellant/plaintiff, the plaintiff cannot be considered to be the owner of the suit property and prayed to dismiss the appeal.
This court is guided in view of the judgment of Hon'ble Supreme Court in Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, reported as 183 (2011) DLT 1 (SC) wherein it held that immovable property can be legally and lawfully transferred/ conveyed only by a registered deed of conveyance. Transaction of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or RCA No. 68/14 page 20 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. valid mode of transfer of immovable property. The courts will not treat such transaction 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 Transfer of Property 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 transaction known as GPA sales.
25. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Hon'ble 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).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 RCA No. 68/14 page 21 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. attorney.
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.
26. This Court is conscious of the judgment of the Hon'ble High Court in the case of Sh. Ramesh Chand Vs. Suresh Chand reported in 188 (2012) DLT 538 in which the judgment in the case of Suraj Lamps (supra) was interpreted. In the case of Ramesh Chand (supra) the Hon'ble High Court 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. The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
27. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable RCA No. 68/14 page 22 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title.
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this Court the plaintiff has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiff had stood discharged.
In view of the ratio of this judgment, this court is of the considered view that the plaintiff/appellant has proved her case and discharged the onus. Plaintiff/appellant is therefore entitled for the relief.
28. From the materials on record and pleading of the parties, averments of the respondent No. 1, it is proved that the suit property was sold and the possession of the suit property has been handed over by defendant No. 2 to plaintiff/appellant. It is contended by plaintiff as well as defendant No. 1 that suit property was illegally occupied by defendant No. 2. and this fact was corroborated in view of complaint made by plaintiff to the police in this regard RCA No. 68/14 page 23 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. which is Mark A. The case of the plaintiff/appellant is further corroborated and supported in view of the contentions of respondent No. 1 by way of counter affidavit. In view of the aforementioned discussion, It is proved that the plaintiff has entered into agreement and purchased the suit property from defendant No. 1 and also obtained its possession. It is further proved that defendant No. 2 is in illegal and unauthorized possession of the suit property and the possession was never handed over of the suit property to defendant No. 2. It is further held that defendants No. 2 not purchased the suit property from the defendant No. 1. The documents relied by the respondent No. 2/defendant No. 2 has no value in the eyes of law.
29. In the present case, the defendant No. 1 has sold the suit property to plaintiff and consequently handed over the possession to him. The defendant No. 2 entered into unauthorized and illegal possession of suit property without any right, title or interest. There is nothing on record to infer that defendant No. 1 ever sold the suit property to the defendant No. 2 or consequently ever handed over the possession. The defendant No. 2 further failed to prove that the possession was handed over as part performance of the agreement to sell and she was permitted to use the suit property as permissive user. The plaintiff categorically proved that the defendant No.2 occupied the suit property illegally and unauthorizedly. Thus the only inference which can be drawn in view of the pleadings and evidence led is that the plaintiff has purchased the suit property and is entitled to the possession of the same alongwith permanent injunction as RCA No. 68/14 page 24 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. prayed in the suit. The issue No. 5 is decided in favour of the plaintiff and against the defendant.
30. The plaintiff has prayed for restraining the defendants, agents, attorneys etc. from creating any third party interest in the suit property. It is the case of the defendant No. 2 that he has purchased the suit from the defendant No. 1. As mentioned the defendant No. 2 failed to prove the documents. The defendant No. 2 therefore cannot have valid title in respect of the suit property on the basis of said document. Further, defendant No. 1 supported the case of plaintiff and denied that any agreement to sell was entered into between her and defendant No.
2. As the defendant No. 2 have no right, title or interest in the suit property, the plaintiff is entitled for grant of injunction as prayed in the suit. Issue No. 6 is decided in favour of the plaintiff and against the defendants. The defendants, their agents, assigns, associates are restrained from creating any third party interest or parting with possession of the suit property.
As regards the mesne profits/damages as prayed by the plaintiff/appellant in the suit, nothing is deposed nor proved in this respect. The suit of the plaintiff therefore regarding claim of mesne profits/damages is dismissed. RELIEF
31. In view of the aforesaid discussions and findings, this court is of the considered opinion that plaintiff has proved her case and she is entitled to the following relief
(i) The decree of possession is passed in favour of the plaintiff and against RCA No. 68/14 page 25 of 26 Ashma Vs. Amita & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi. defendant No. 1/respondent No.1, LRs, Agents, Successors etc. regarding suit property i.e. bearing No. 1313, Gali No. 14B, New Mustafabad, Delhi94 as shown in the site plan attached with the plaint in red colour.
(ii) Decree of permanent injunction is passed in favour of the plaintiff and against the defendants/respondents and the defendants, attorneys, representative, agents etc. are restrained from selling, transferring, alienating or creating third party interest in the suit property bearing No. 1313, Gali No. 14B, New Mustafabad, Delhi94 as shown in the site plan attached with the plaint in red colour except without due process of law.
(iii) The suit of the plaintiff is dismissed regarding the relief of mesne profits /damages as prayed in the suit.
(iv) The appellant is also entitled for cost.
32. Decree sheet be drawn accordingly. TCR be sent along with copy of this judgment.
33. File be consigned to record room after necessary compliance. Announced in open Court on this 18th day of September, 2014 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
RCA No. 68/14 page 26 of 26 Ashma Vs. Amita & Ors.