Delhi District Court
Renu Verma vs Praveen Kumar on 25 September, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURTS, DELHI
CS 380/16
CNR No DLET01-000309-2012
RENU VERMA
W/O BOBBY VERMA
R/O B-2/2, AMIT VIHAR
BEHATA HAJIPUR, LONI
GHAZIABAD
UTTAR PRADESH
....PLAINTIFF
V
PRAVEEN KUMAR
S/O SANTOSH KUMAR
R/O HOUSE NO 25/2, SHIV MANDIR MARG
DELHI-110053
.....DEFENDANT
INSTITUTION: 28.05.2014
ARGUMENTS: 05.09.2020
JUDGMENT:25.09.2020 SUIT FOR DECLARATION, CANCELLATION OF DOCUMENTS AND PERMANENT INJUNCTION JUDGMENT
1. The plaintiff filed present suit for declaration, cancellation of documents and permanent injunction and pleaded as under:-
Kaushal Verma, mother in law of plaintiff (now deceased) was absolute owner in possession of the property bearing no. 167, Shiv Vihar, phase-4, Karawal Nagar, Delhi (hereinafter referred as to "the suit property") measuring 50 sq. yards comprising ground and first floors having purchased from Radhey Shyam son of Babu Lal on execution of notarized General Power of Attorney, Agreement CS 380/16 RENU VERMA V PARVEEN KUMAR 1/25 to Sell, deed of Will, Receipt and Possession Letter and Affidavit dated 09.12.2010. The plaintiff purchased the suit property from Kaushal Verma, mother in law on execution of notarized General Power of Attorney, Agreement to Sell, deed of Will, Receipt and Possession Letter dated 22.02.2013 in presence of witnesses. Kaushal Verma, mother in law of the plaintiff even after transferring the suit property was residing with the plaintiff. The plaintiff along with family members in the month of June 2013 shifted to Loni, UP. The plaintiff on 23.06.2013 at about 6 pm visited the suit property and locks of two rooms and kitchen were found broken and household articles were missing. The plaintiff reported to the police but without any action. Pappu Yadav, Mukesh and Kanta Prasad Trivedi, local property dealer after misguiding and influencing mother in law of the plaintiff have taken forceful possession and thrown out the plaintiff from the suit property. The plaintiff field a criminal complaint dated 27.07.2013 under section 200 of the Cr.P.C. in court of Chief Metropolitan Magistrate, Karkardooma Courts, Delhi against SHO PS Karawal Nagar, Kaushal, mother in law, Mukesh Tyagi, Kanta Prasad Trivedi and Pappu Yadav . Kaushal Verma, mother in law of the plaintiff had expired on 10.10.2013. The defendant is claiming to be owner of the suit property on basis of forged title documents and in connivance with the said property dealers captured the suit property. The defendant has no right, interest and title in the suit property. The plaintiff being aggrieved filed the present suit and prayed as under:-
a) To cancel the documents i.e. GPA, Agreement to Sell, Payment receipt, Possession Letter, Will and Affidavit/ Undertaking dated 21.08.2013 and notarized on 26.08.2013 or any other forged documents in favour of defendant.
b) To pass a decree of declaration for declaring the plaintiff to be the sole and absolute owner of the suit property bearing no.167, Shiv Vihar, Phase-4, Karawal Nagar, Delhi as shown in red colour.
c) To grant the decree for possession in respect to the suit property bearing no.167, Shiv Vihar, Phase-4, Karawal Nagar, Delhi in favour of plaintiff and against the defendant.
d) To grant permanent injunction in favour of plaintiff and against the defendant restraining the defendant, his agents, servants, representatives, friends, relatives, legal heirs, signatories, attorneys and anyone on behalf of the defendant whatsoever from alienating, transferring, encumbering, disposing off, parting with the possession of whole of the suit property in CS 380/16 RENU VERMA V PARVEEN KUMAR 2/25 any manner in the interest of justice till disposal of the suit.
e) To allow the cost of the suit.
f) To pass such other and further orders which the court may deem fit and proper in interest of justice.
2. The defendant filed the written statement and contested the suit. The defendant in preliminary objections stated that the present suit is not maintainable as the plaintiff does not have locus standi for filing the present suit. The documents filed by the plaintiff are false, forged and fabricated. The present suit is without cause of action and is liable to be dismissed under Order VII Rule 11 CPC. The defendant purchased the suit property from its erstwhile owner Kaushal Verma (now deceased) on 21.08.2013 for a consideration of Rs.35,50,000/-. The mother in law of the plaintiff lodged a complaint against the plaintiff and her husband in police Station Karawal Nagar by alleging that the plaintiff has transferred suit property in her name fraudulently in the month of May 2014 and thereafter the plaintiff and her husband initiated legal proceedings for grant of anticipatory bail. The plaintiff on 29.03.2013 entered into an Agreement to Sell with Rajkumar s/o Ram Babu r/o A2/3, Shanti Nagar, Delhi-110094 regarding the suit property. The plaintiff does not have any right, title and interest in the suit property.
The defendant on reply on merits admitted that Kaushal Verma was owner of the suit property having purchased from Radhey Shyam vide documents dated 09.12.2010. The defendant denied other allegations of the plaintiff.
3. The plaintiff filed rejoinder wherein reasserted and reaffirmed previous stand. The plaintiff reasserted that she is owner of the suit property and her mother in law was not having any authority to transfer the suit property in favour of the defendant.
4. Vide order dated 08.11.2016 the following issues were framed:-
a) Whether the plaintiff is entitled for decree of declaration as prayed in the suit? (OPP)
b) Whether the plaintiff is entitled for decree of possession as prayed in the suit? (OPP)
c) Whether the plaintiff is entitled for decree of cancellation of document as prayed in the suit? (OPP)
d) Whether the plaintiff is entitled for decree of permanent injunction as prayed in the suit? (OPP)
e) Relief.
5. The plaintiff examined her as PW1, Sanjay as PW2 and Rotash Kumar as PW3 CS 380/16 RENU VERMA V PARVEEN KUMAR 3/25 who tendered their respective affidavit which are Ex.PW1/1, Ex. PW2/A and Ex. PW3/A. The plaintiff as PW1 relied upon documents which are Ex.PW1/A to Ex.PW1/K. The plaintiff's evidence was ordered to be closed vide order dated 22.05.2018.
The defendant Praveen Kumar examined him as DW1, Heena Arora, JJA, Record room (Sessions), Karkardooma Courts as DW-2, ASI Irshad Khan, PS Karawal Nagar as DW3, Brijesh Kumar as DW4 and Meer Chand as DW5. The defendant as DW1, DW4 Brijesh Kumar and DW5 Meer Chand tendered their affidavits which are Ex.DW1/1, DW4/A and Ex. DW5/A. The defendant as DW1 relied upon the documents Ex.DW1/A to Ex.DW1/J. DW2 Heena Arora produced document Ex. DW2/A, Ex. DW1/G, Ex. DW2/B and DW1/J. DW3 ASI Irshad Khan produced document which is Ex. DW1/1. The defendant evidence was ordered to be closed vide order dated 21.11.2019. The defendant filed an application for exhibition of certain documents which was allowed vide order dated 01.09.2020. The defendant in pursuance of order dated 01.09.2020 exhibited documents which are Ex. D1 to Ex. D34.
6. Sh. Mohd Arif, Advocate for the plaintiff and Sh. Vipin Kumar, Advocate for the defendant heard. Record perused.
7. The counsel for the plaintiff argued that the plaintiff is actual owner of the suit property by virtue of documents dated 22.02.2013 Ex. PW1/B to Ex. PW1/F executed by Kaushal Verma. The counsel for the defendant argued that the plaintiff deoes not have any right in respect of the suit property as the defendant purchased the suit property frpm Kaushal Verma on execution of documents dated 21.08.2013 Ex. DW1/A to Ex. DW1/E. A burden of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims against the defendant and is based on preponderance of the probabilities. Under Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. Relevant provisions of the Evidence Act, 1872 dealing with burden of proof are produces as under:-
101. Burden of proof.--
Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
CS 380/16 RENU VERMA V PARVEEN KUMAR 4/25 When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
102. On whom burden of proof lies.--
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
103. Burden of proof as to particular fact.--
The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
106. Burden of proving fact especially within knowledge.--
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another,VI(2003)SLT307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues. This view was also accepted in M/S. Gian Chand & Brothers and Another V Rattan Lal @ Rattan Singh, (2013) SCR 601.
CS 380/16 RENU VERMA V PARVEEN KUMAR 5/25
ISSUE WISE FINDINGS ARE AS UNDER
ISSUE (a)
Whether the plaintiff is entitled for decree of declaration as prayed in the suit? (OPP)
8. The plaintiff pleaded that she is owner of the suit property having purchased from her mother in law Kaushal Verma on execution of notarized GPA, Agreement to Sell, deed of Will, Receipt and Possession Letter dated 22.02.2013 in presence of witnesses. The concept of ownership is one of the fundamental juristic concepts common to all systems of law. Ownership is a relation of a person to an object which is exclusive or absolute and ultimate. The person who stands in this relation is called the 'owner' and he has a right of complete control and enjoyment of the object. Ownership is a right of dominium over the property. The idea of ownership followed the idea of possession. Ownership denotes the relationship between a person and any right that is vested in him. Ownership may be absolute or restricted. An owner of property may be absolute and nobody else may have any interest in property. There may be certain restrictions on the right of ownership imposed by either law or by voluntary agreement. Ownership of a person does not diminish with his death. He is entitled to leave his property to his property to his successors. Owner can distribute the property even in his own lifetime. Ownership can be derived from a previous owner such as acquired by inheritance or gift or purchase etc.
9. The plaintiff prayed for passing a decree of declaration for declaring her to be the sole and absolute owner of the suit property as shown in red colour on basis of title documents dated 22.03.2013. The defendant claimed him as owner of the suit property having purchased from Kamlesh Verma on execution of title documents dated 21.08.2013. The plaintiff and the defendant as such are deriving title in respect of the suit property from Kamlesh Verma, mother in law of the plaintiff.
It was for the plaintiff to prove that Kamlesh Verma actually executed title documents dated 22.03.2013 in favour of the plaintiff in respect of the suit property and title documents dated 22.03.2013 are legally valid documents good enough for conferring title on the plaintiff in respect of the suit property. The plaintiff to prove case examined her as PW1 and tendered affidavit Ex. PW1/1 in evidence wherein deposed that she purchased the suit property from Kamesh CS 380/16 RENU VERMA V PARVEEN KUMAR 6/25 Verma, mother in law on execution of title document dated 22.02.2013 which are General Power of Attorney Ex. PW1/B, Agreement to Sell Ex. PW1/C, Payment Receipt as Ex. PW1/D, Deed of Will Ex. PW1/E and Possession Letter Ex. PW1/F and these title documents Ex. PW1/B to Ex. PW1/F were executed in presence of Rohtash and Sanjay who signed title documents Ex. PW1/B to Ex. PW1/F as witnesses. The plaintiff also examined Sanjay as PW2 and Rohtash as PW3 who tendered their respective affidavit in evidence which are Ex. PW2/A and Ex. PW3/A wherein PW2 Sanjay and PW3 Rohtash deposed that Kamlesh Verma, mother in law of the plaintiff sold the suit property to the plaintiff on 22.02.2013 for a sale consideration of Rs. 11,50,000/- on execution of title documents which are Ex. PW1/B to Ex. PW1/F which bear their signature. The combined reading of testimonies of witnesses examined by the plaintiff including her reflects that the plaintiff purchased the suit property from Kamlesh Verma for a sale consideration of Rs. 11,50,000/- on execution of title documents Ex. PW1/B to Ex. PW1/F.
10. The defendant claimed ownership of the suit property on basis of title documents dated 21.08.2013 executed by Kaushal Verma, mother in law of the plaintiff. The defendant to prove ownership examined him as DW1 and tendered affidavit Ex. DW1/1 in evidence wherein deposed that he purchased the suit property for a sale consideration of Rs.35,50,000/- from Kaushal Verma on execution of title documents dated 21.08.2013 which are General Power of Attorney Ex. DW1/A, Agreement to Sell Ex. DW1/B, Payment Receipt Ex. DW1/C, Possession Letter Ex. DW1/D and Affidavit/Undertaking DW1/E. The defendant also examined Brijesh Kumar as DW4 and Meer Chand as DW5 who tendered their respective affidavits Ex. DW4/A and Ex. DW5/A in evidence wherein deposed that they are property dealers by profession and acted as mediator/agent/broker in sale purchase of the suit property between Kaushal Verma and the defendant on execution of General Power of Attorney, Agreement to Sell, Payment Receipt, Possession Letter and Affidavit/Undertaking for sale consideration of Rs. 35,50,000/ in their presence and they also signed these documents.
11. The plaintiff pleaded and deposed that she purchased the suit property from Kaushal Verma on execution of title documents dated 22.03.2013 which include General Power of Attorney Ex. PW1/B, Agreement to Sell Ex. PW1/C, Payment Receipt as Ex. PW1/D, Deed of Will Ex. PW1/E and Possession Letter Ex.
CS 380/16 RENU VERMA V PARVEEN KUMAR 7/25 PW1/F. The plaintiff also relied on testimonies of PW2 Sanjay and PW3 Rohtash. The perusal of record reflects that Kamlesh Verma served a legal notice dated 13.06.2013 Ex. D-34 on the plaintiff wherein Kaushal Verma admitted execution of General Power of Attorney in favour of the plaintiff in respect of the suit property. Kaushal Verma also executed Cancellation of General Power of Attorney dated 13.06.2013 Ex. D-32 and Cancellation of Will dated 13.06.2013 Ex. D-33 whereby Kaushal Verma cancelled General Power of Attorney dated 22.03.2013 Ex. PW1/B and Will dated 22.03.2013 Ex. PW1/E executed in favour of the plaintiff in respect of the suit property. Kaushal Verma made a police complaint dated 16.06.2013 lodged against the plaintiff and her husband wherein she admitted execution of title documents in favour of the plaintiff in respect of the suit property although alleged fraud and misrepresentation played by the plaintiff and her husband. It is proved that Kaushal Verma executed documents Ex. PW1/B to Ex. PW1/E in name of the plaintiff.
12. The counsel for the defendant argued that Kaushal Verma during her life time cancelled General Power of Attorney dated 22.03.2013 Ex. PW1/B and Will dated 22.03.2013 by executing Cancellation of General Power of Attorney dated 13.06.2013 Ex. D-32 and Cancellation of Will dated 13.06.2013 Ex. D-33. The plaintiff in cross examination admitted her signatures of Kaushal Verma on Cancellation of General Power of Attorney dated 13.06.2013 Ex. D-32. A Revocable Power of Attorney is revocable at the will of the principal and Irrevocable Power of Attorney is not revocable at the will of the principal. The perusal of General Power of Attorney Ex. PW1/B reflects that it is revocable power of attorney. The principal has the right to terminate the Power of Attorney but subject to conditions by virtue of Section 201 of the Indian Contract Act, 1872. The principal is required to issue a reasonable notice for revocation of irrevocable Power of Attorney. A power of attorney cannot be revoked by the principal without the consent of the agent if the agent has an interest in the subject matter of the Power of Attorney. An unregistered Power of Attorney can be revoked by an unregistered instrument of revocation. Kaushal Verma issued legal notice dated 13.06.2013 Ex. D-34 on the plaintiff on day of execution of Cancellation of General Power of Attorney dated 13.06.2013 Ex. D-32 and Cancellation of Will dated 13.06.2013 Ex. D-33. Kaushal Verma cancelled General Power of Attorney dated 22.03.2013 without giving reasonable opportunity to the plaintiff. The CS 380/16 RENU VERMA V PARVEEN KUMAR 8/25 execution of Cancellation of General Power of Attorney dated 13.06.2013 Ex. D- 32 was not valid and justified. However a Will can be cancelled by executor anytime and for which no legal formality is required to be complied with. Kaushal Verma rightly cancelled Will dated 22.03.2013 Ex. PW1/E.
13. The plaintiff and the defendant are relying on title documents which are General Power of Attorney, Agreement to Sell, Payment Receipt, Possession Letter and Affidavit/Undertaking stated to be executed by Kaushal Verma, mother in law of the plaintiff and Kaushal Verma is already expired on 10.10.2013. It is not disputed between the plaintiff and the defendant that Kaushal Verma was owner of the suit property which Kaushal Verma purchased from Radhey Shyam on execution of title documents dated 09.12.2010 which are General Power of Attorney Ex, D-24, Agreement to Sale Ex. D-25, Receipt Ex. D-26, Affidavit Ex. D-27, Possession Letter Ex. D-28 and Will Ex. D-29.
14. The law gives a person who acquires or owns an immovable property right to use, lease, sell, rent or transfer/gift of the land. The transactions for purchasing/selling/transferring/creating an interest in immovable property and transmission of title in respect of a property are governed by various legal provisions. The transfer of property between two parties is governed by the Transfer of Property Act, 1882. Section 5 defines Transfer of Property. An immovable property can be transferred by different modes which are sale, mortgage, lease, gift, exchange etc. The essential elements of a sale are parties to a sale, subject matter of sale, price or consideration and mode of execution of sale. Section 54 of the transfer of Property Act, 1982 defines sale.
15. The legal issue which needs judicial consideration and determination is that whether General Power of Attorney, Agreement to Sale and other documents constitute valid transfer of the immovable property in absence of execution of sale deed. The Supreme Court in Suraj Lamp & Industries Private Limited V State of Haryana & another, 2009 (7) SCC 363 referred to the ill - effects of sales through General Power of Attorney or Sale Agreement/General Power of Attorney/Will transfers (for short `SA/GPA/WILL' transfers) and observed that there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and will. The Supreme Court of India again in Suraj Lamp & Industries Private Limited V State of Haryana & another, Special Leave Petition (C) No 13917 of 2009 CS 380/16 RENU VERMA V PARVEEN KUMAR 9/25 decided on 11th October, 2011 highlighted modus operandi in SA/GPA/WILL transactions and observed as under:-
The modus operandi in such SA/GPA/WILL transactions is for the vendor or person claiming to be the owner to receive the agreed consideration, deliver possession of the property to the purchaser and execute the following documents or variations thereof:
(a) An Agreement of sale by the vendor in favour of the purchaser confirming the terms of sale, delivery of possession and payment of full consideration and undertaking to execute any document as and when required in future.
Or An agreement of sale agreeing to sell the property, with a separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute sale deed whenever required.
(b) An Irrevocable General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing him to manage, deal with and dispose of the property without reference to the vendor.
Or A General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing the attorney holder to sell or transfer the property and a Special Power of Attorney to manage the property.
(c) A will bequeathing the property to the purchaser (as a safeguard against the consequences of death of the vendor before transfer is effected).
It was also observed that these transactions are not to be confused or equated with genuine transactions where the owner of a property grants a power of Attorney in favour of a family member or friend to manage or sell his property as he is not able to manage the property or execute the sale, personally. These are transactions where a purchaser pays the full price but instead of getting a deed of conveyance gets a SA/GPA/WILL as a mode of transfer either at the instance of the vendor or at his own instance.
16. The Supreme Court after considered relevant provisions of the Transfer of Property Act, 1882(hereinafter referred to as "the Act") to examine validity and legality of SA/GPA/WILL transactions. Section 5 of the Act defines transfer of CS 380/16 RENU VERMA V PARVEEN KUMAR 10/25 property reads as under:-
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 or to himself and one or more other living persons; and "to transfer property"
is to perform such act.
Section 54 of the Actdefines sales and reads as under:-
"Sale" defined.--''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 immoveable 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 immoveable 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 immoveable 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 immoveable 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.
Section 53A of the Act defines part performance and reads as under:-
Part Performance. - Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms neces- sary to constitute the transfer can be ascertained with rea- sonable certainty, and the transferee has, in part perfor- mance of the contract, taken possession of the property or any part thereof, or the transferee, being already in posses- sion, continues in possession in part performance of the con- tract and has 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 CS 380/16 RENU VERMA V PARVEEN KUMAR 11/25 completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claim- ing under him shall be debarred from enforcing against the transferee and persons claiming under him any right in re- spect of the property of which the transferee has taken or continued in possession, other than a right expressly pro- vided 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 con- tract or of the part performance thereof.
17. The Supreme Court also referred other relevant legal provisions. Section 27 of the 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 affect the chargeability of duty on that instrument. Article 23 prescribes stamp duty on Conveyance. Section 17 of the Registration Act, 1908 makes a deed of conveyance compulsorily registrable. The Supreme Court considered Scope of an Agreement of sale and observed that Section 54 makes it clear that a contract of sale i.e. an agreement of sale does not create any interest in or charge on property and referred Narandas Karsondas V S.A. Kamtam and another, (1977) 3 SCC 247 wherein it was observed that a contract of sale does not of itself create any interest in or charge on the property as expressly declared in Section 54 of the Act. Regarding protection under section 53A of the Act the Supreme Court referred Rambhau Namdeo Gajre V Narayan Bapuji Dhotra, 2004 (8) SCC 614 wherein it was held under:-
Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party.
The Supreme Court held that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed) and in absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred. Any contract of sale CS 380/16 RENU VERMA V PARVEEN KUMAR 12/25 (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 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 the Act). An agreement of sale whether with possession or without possession is not a conveyance. Section 54 of the 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. The Andhra High Court in Gaddam Laxmaiah and others V The Commissioner and Inspector General, Registration and Stamps Department, WP No 20683/2012 and WP No 2192/ 2013 decided on 30th April, 2013 observed that the transfer of property from one person to another is governed by different statutory enactments. The Indian Contract Act, 1872, the Specific Relief Act, 1963 and the Transfer of Property Act, 1882 are substantive laws governing transfer of property. The Indian Evidence Act, 1872, the Registration Act, 1908 and the Indian Stamp Act, 1899 are the procedural or adjutant laws which also govern the transactions involving transfer of immovable property. Section 54 of the Transfer of Property Act, 1882 defined "sale" which made clear that a contract for the sale of immovable property does not by itself create any interest or charge on such property. The Agreement to Sell dated 22.03.2013 Ex. PW1/C as such stated to be executed by Kaushal Verma in favour of the plaintiff does not confer any right, title or interest in respect of the suit property.
18. The plaintiff has also relied on General Power of Attorney dated 22.03.2013 Ex. PW1/B stated to be executed by Kaushal Verma in favour of the plaintiff for claiming ownership in respect of the suit property. A Power of Attorney may be General Power of Attorney whereby the principal grants the Power of Attorney holder all such powers which are necessary to accomplish the objects for which such Power of Attorney is given and Special Power of Attorney whereby the principal wants the Power of Attorney holder to exercise only such powers as are specified in the Power of Attorney deed. The Supreme Court regarding scope of Power of Attorney in Suraj Lamp & Industries Private Limited V State of Haryana & another, Special Leave Petition (C) No 13917 of 2009 decided on 11th October, 2011 held that 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 CS 380/16 RENU VERMA V PARVEEN KUMAR 13/25 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 as per sections 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. The decision in State of Rajasthan V Basant Nehata , 2005 (12) SCC 77 was referred wherein it was observed that a grant of power of attorney is essentially governed by Chapter X of the Contract Act. A deed of power of attorney is executed by the principal in favour of the agent. An attorney holder may execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor. The Andhra High Court in Gaddam Laxmaiah and others V The Commissioner and Inspector General, Registration and Stamps Department, WP No 20683/2012 and WP No 2192/ 2013 decided on 30 th April, 2013 also took similar view. General Power of Attorney dated 22.03.2013 Ex.
PW1/B stated to be executed by Kaushal Verma in favour of the plaintiff does not confer any right, title and interest or ownership in respect of the suit property.
19. The plaintiff has also relied on Will dated 22.03.2013 Ex. PW1/E stated to be executed by Kaushal Verma in favour of the plaintiff for claiming ownership in respect of the suit property. The Supreme Court regarding scope of Will in Suraj Lamp & Industries Private Limited V State of Haryana & another, Special Leave Petition (C) No 13917 of 2009 decided on 11th October, 2011 observed that a Will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. Will dated 22.03.2013 Ex. PW1/E stated to be executed by Kaushal Verma in favour of the plaintiff does not confer any right, title and interest or ownership in respect of the suit property. Kaushal Verma during her life time also cancelled Will dated 22.03.2013 Ex. PW1/E by executing Cancellation of Will dated 13.06.2013 Ex. D-33 for which no legal formality is required to be complied with.
20. The Supreme Court regarding validity of transaction through General Power of Attorney, Agreement to Sale and Will in Suraj Lamp & Industries Private CS 380/16 RENU VERMA V PARVEEN KUMAR 14/25 Limited V State of Haryana & another, Special Leave Petition (C) No 13917 of 2009 decided on 11th October, 2011 concluded that a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. It was reiterated that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. It was held as under:-
Transactions 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 valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property.
They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.
It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.
We have merely drawn attention to and reiterated the well- settled legal position that SA/GPA/WILL transactions are not `transfers' or `sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale.
The plaintiff as such on basis of title documents dated 22.03.2013 General Power of Attorney Ex. PW1/B, Agreement to Sell Ex. PW1/C, Payment Receipt as Ex. PW1/D, Deed of Will Ex. PW1/E and Possession Letter Ex. PW1/F cannot claim any ownership in respect of the suit property.
CS 380/16 RENU VERMA V PARVEEN KUMAR 15/25
21. The plaintiff claimed that she purchased the suit property for a sale consideration of Rs.11,50,000/- and relied on testimonies of PW2 Sanjay and PW3 Rohtash who in respective affidavit in evidence Ex. PW2/A and Ex. PW3/A deposed that Kamlesh Verma, mother in law of the plaintiff sold the suit property to the plaintiff for a sale consideration of Rs. 11,50,000/-. The perusal of title documents Ex. PW1/B to Ex. PW1/F reflects that the plaintiff paid Rs. 11,50.000/-
as sale consideration to Kaushal Verma. Price or consideration as per section 54 of the Act in the ordinary sense connotes money consideration for the sale of property. The payment of consideration should be made simultaneous with execution of conveyance by the seller. Price is the essence of the sale but the time for payment of it is not the essence of the sale. Price can be paid before, at the time or subsequent to the completion of the sale. It is also not necessary that the whole of the consideration or price should be paid at one time. The payment of price is not a sine qua non to the completion of sale. The term paid suggests that promise to pay must be genuine. The buyer cannot escape his primary liability to pay the consideration and if he tries to evade payment by dubious means, no title would pass from the seller to the buyer. The title would not pass unless the payment has been made in full, or if consideration is paid in advance. Price is an essential ingredient of the essence of the contract for sale. There cannot be a valid sale without price.
22. It was for the plaintiff to prove that he actually paid Rs. 11,50,000/- as sale consideration to Kaushal Verma for purchase of the suit property. The cross examination of the plaintiff as PW1 is relevant to find out payment of sale consideration to Kaushal Verma. The plaintiff as PW1 in cross examination deposed that she is running a jewelry shop with monthly income of about Rs. 10/15,000/- per month but she is not an income tax payee. The husband of the plaintiff is also running a jewelry shop and combined monthly income of the plaintiff and her husband in the year 2013 was about Rs.40,000/-. The plaintiff in October/November, 2012 availed the chit/committee amount of Rs. 1,00,000/- from her brother and took Rs.50,000/- from her mother. The plaintiff did not take any loan from any other person and in year 2013 the plaintiff was having cash of Rs.3,50,000/- including Rs.1,50,000/- taken from mother and brother. If the testimony of the plaintiff as PW1 is accepted to be true then it reflects that the plaintiff at time of purchase of the suit property was having only Rs. 3,50,000/- at CS 380/16 RENU VERMA V PARVEEN KUMAR 16/25 time of purchase of the suit property from Kaushal Verma in year 2013. The plaintiff was not having sufficient money for payment of sale consideration. The testimonies of PW2 Sanjay and PW3 Rohtash to effect that the plaintiff paid Rs. 11,50,000/- as sale consideration do not inspire any confidence and contrary to cross examination of the plaintiff. The plaintiff did not mention in the plaint that Rs. 11,50,000/- was paid as sale consideration to Kamlesh Verma in presence of PW2 Sanjay and PW3 Rohtash. These facts were relevant and required to be incorporated in pleading. In Maria Margarida Sequeria Fernandes V Erasmo Jack de Sequeria, (2012)5SCC370, the Supreme Court laid stress on purity of pleadings in civil cases. It was observed that pleadings are extremely important in civil cases and in order to do justice, it is necessary to give all details in the pleadings. This view was again reaffirmed in A. Shanmugam V Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, (2012)6SCC430. The plaintiff could not prove that she actually paid sale consideration of Rs. 11,50,000/- to Kaushal Verma in respect of the suit property.
23. Section 34 of Specific Relief Act, 1963 deals with relief of declaration. It reads as under:-:
Section 34.-- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Section 34 provides that a suit against any person denying or interested to deny the plaintiffs' title to the legal character or right to any property can be filed. To obtain the relief of declaration the plaintiff must establish that (1) the plaintiff was at the time of the suit entitled to any legal character or any right to any property (ii) the defendant had denied or was interested in denying the character or the title of the plaintiff, (iii) the declaration asked for was a declaration that the plaintiff was entitled to a legal character or to a right to property (iv) the plaintiff was not in a position to claim a further relief than a bare declaration of his title. It is a discretionary relief.
CS 380/16 RENU VERMA V PARVEEN KUMAR 17/25
24. The plaintiff is seeking declaration of ownership in respect of the suit property by pleading that the plaintiff purchased the suit property from her mother in law for sale consideration of Rs.11,50,000/- on execution of documents dated 22.03.2013 which are General Power of Attorney Ex. PW1/B, Agreement to Sell Ex. PW1/C, Payment Receipt as Ex. PW1/D, Deed of Will Ex. PW1/E and Possession Letter Ex. PW1/F and these documents as discussed hereinabove do not confer any title on the plaintiff. The plaintiff is not entitled for relief of declaration as prayed for. Issue no (a) is decided against the plaintiff.
ISSUE (b) Whether the plaintiff is entitled for decree of possession as prayed in the suit? (OPP)
25. Possession expresses the physical relation of control exercised by a person over a thing. Possession is protected as a part of the law of property. Possessory remedies are those which exist for the protection of possession. The Indian legislators have taken care of providing possessory remedies. Section 5 of the Specific Relief Act, 1963 deals with action for recovery of possession of specific immovable property based on title. The essence of this section is that whoever proves that he has a better title in a person is entitled to possession. The title may be on the basis of ownership or possession. The purpose of this section is to restrain a person from using force and to dispossess a person without his consent otherwise than in the due course of law.
26. The plaintiff pleaded and deposed that the plaintiff purchased the suit property from Kaushal Verma on execution of documents dated 22.02.2013 Ex. PW1/B to Ex. PW1/E which are General Power of Attorney, Agreement to Sell, deed of Will, Receipt and Possession Letter. As per documents Ex. PW1/B to Ex. PW1/E Kaushal Verma also handed over possession of the suit property to the plaintiff. The plaintiff in the month of June 2013 shifted to Loni, UP and on 23.06.2013 at about 6 pm visited the suit property and found locks of two rooms and kitchen were broken. The plaintiff prayed for decree for possession in respect to the suit property as shown in Site plan Ex.PW1/A. The plaintiff as PW1 in cross examination deposed that she resided in the suit property for about two months from 15th May, 2013. The defendant alleged that he purchased the suit property CS 380/16 RENU VERMA V PARVEEN KUMAR 18/25 from Kaushal Verma on 21.08.2013 for a consideration of Rs.35,50,000/- on execution of documents Ex. DW1/A to Ex. DW1/E. The burden was on the plaintiff to prove that she came into possession of the suit property after execution of documents Ex. PW1/B to Ex. PW1/E. The plaintiff did not lead convincing evidence rather no evidence to prove that she was in possession of the suit property till June, 2013 and was dispossessed by local property dealers after she shifted to Loni alomg with her family. The plaintiff is claiming ownership in possession on basis of title documents dated 22.02.2013 Ex. PW1/B to Ex. PW1/E which are not valid documents to confer ownership rights on the plaintiff in respect of the suit property. The plaintiff is not entitled to claim possession of the suit property as shown in site plan Ex. PW1/A. Issue no (b) is decided against the plaintiff.
ISSUE (c) Whether the plaintiff is entitled for decree of cancellation of document as prayed in the suit? (OPP)
27. Section 31(1) of the Specific Relief Act, 1963 deals with cancellation of documents. It reads as under:-
31. When cancellation may be ordered.--
(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
The purpose of cancellation of instruments under the Specific Relief Act of 1963 is to serve justice to the parties who are in a fear of being harmed or are actually being harmed by the other party due to the performance of such instrument/contract. Cancellation of documents/instruments means the nullification of a written document which is proof of a transaction between the parties. If there is an instrument, which is void or voidable due to some reason and a party to such an instrument has enough reasons to believe that the said instrument has the potential to act against him and may even cause serious injury to him then such a person can file a suit with regards to the cancellation of such an Instrument. It is a discretionary relief. There can be complete or partial CS 380/16 RENU VERMA V PARVEEN KUMAR 19/25 cancellation of Instruments.
28. The Supreme Court of India in Deccan Paper Mills Co. Ltd. V Regency Mahavir Properties, Civil Appeal No 5147 of 2016 decided on 19th August, 2020 cited Muppudathi Pillai V Krishnaswami Pillai, AIR 1960 Mad 1 decided by the Madras High Court wherein section 39 of the Specific Relief Act, 1877 (which is the pari materia provision to section 31 of the 1963 Act) was referred and it was observed that document though not necessary to be set aside may, if left outstanding, be a source of potential mischief. The jurisdiction under section 39 is a protective or a preventive one. It is to prevent a document to remain as a menace and danger to the party against whom under different circumstances it might have operated. It was observed as under:-
The provisions of Section 39 make it clear that three conditions are requisite for the exercise of the jurisdiction to cancel an instrument: (1) the instrument is void or voidable against the plaintiff; (2) plaintiff may reasonably apprehend serious injury by the instrument being left outstanding; (3) in the circumstances of the case the court considers it proper to grant this relief of preventive justice.
In Suhrid Singh V Randhir Singh, (2010) 12 SCC 112, the Supreme Court held that where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. In Deccan Paper Mills Co. Ltd., it was observed that the expression "any person" does not include a third party, but is restricted to a party to the written instrument or any person who can bind such party. It was further observed as under:-
The incongruous result of section 31 of the Specific Relief Act being held to be an in rem provision. When it comes to cancellation of a deed by an executant to the document, such person can approach the Court under section 31, but when it comes to cancellation of a deed by a non-executant, the non- executant must approach the Court under section 34 of the Specific Relief Act, 1963. Cancellation of the very same deed, therefore, by a non-executant would be an action in personam since a suit has to be filed under section 34. However, cancellation of the same deed by an executant of the deed, being under section 31, would somehow convert the suit into a suit being in rem.
CS 380/16 RENU VERMA V PARVEEN KUMAR 20/25
29. The plaintiff pleaded and deposed in affidavit Ex. PW1/1 that she is owner of the suit property having purchased from Kaushal Verma on execution of documents dated 22.02.2013 Ex. PW1/B to Ex. PW1/F which are General Power of Attorney, Agreement to Sell, deed of Will, Receipt and Possession Letter. The defendant is claiming to be owner of the suit property on basis of forged title documents. The defendant has no right, interest and title in the suit property. The plaintiff prayed for decree of cancellation of documents which are General Power of Attorney, Agreement to Sell, Payment receipt, Possession Letter, Will and Affidavit/ Undertaking dated 21.08.2013 and notarized on 26.08.2013. The defendant filed the written statement and contested the suit.
30. The defendant pleaded and deposed in affidavit Ex. DW1/1 that the defendant purchased the suit property through property dealer from Kaushal Verma on 21.08.2013 for a consideration of Rs.35,50,000/- on execution of documents dated 21.08.2013 which are General Power of Attorney Ex. DW1/A, Agreement to Sell Ex. DW1/B, Payment Receipt Ex. DW1/C, Possession Letter Ex. DW1/D and Affidavit/Undertaking Ex. DW1/E. The defendant in cross examination deposed that documents Ex. DW1/A to Ex. DW1/E were executed in Nand Nagri Court in presence of Brijesh Chauhan, Meer Chand and Suresh Pandit Ji. The defendant as DW1 denied suggestions that Kaushal Verma was not competent to sell the suit property to the defendant on 21.08.2013 or that documents dated 21.08.2013 are forged and fabricated documents or that the plaintiff is lawful owner of the suit property. The defendant also examined Brijesh Kumar as DW4 and Meer Chand as DW5 who in respective affidavit Ex. DW4/A and Ex. DW5/A deposed that they acted as mediator/agent/broker in sale purchase of the suit property between Kaushal Verma and the defendant on execution of General Power of Attorney, Agreement to Sell, Payment Receipt, Possession Letter and Affidavit/Undertaking for sale consideration of Rs. 35,50,000/-. DW4 Brijesh Kumar in cross examination deposed that Rs. 35,50,000/- were paid to Kaushal Verma by the defendant in his presence. The defendant denied suggestions that documents dated 21.08.2013 were never in his presence and are forged and fabricated documents or that Rs. 35,50,000/- were not paid in his presence or that Kaushal Verma already sold the suit property to the plaintiff. DW5 Meer Chand in cross examination deposed that he along with DW4 Brijesh Kumar facilitated deal between Kaushal Verma and the defendant for a sale consideration of Rs. 35,50,000/- in year 2013.
CS 380/16 RENU VERMA V PARVEEN KUMAR 21/25 The defendand did not have knowledge that Kaushal Verma sold the suit property to the plaintiff. DW5 Meer Chand denied suggestions no payment was made by the defendant to Kamlesh Verma or documents dated 21.08.2013 were never prepared in his presence. The combined testimonies of the defendant as DW1, DW4 Brijesh Kumar and DW5 Meer Chand is proving that the Kaushal Verma on 21.08.2013 executed document Ex. DW1/A to Ex. DW1/E in favour of the defendant in respect of the suit property. The defendant as DW1, DW4 Brijesh Kumar and DW5 Meer Chand were cross examined but there is nothing in their cross examination which can falsify execution of documents dated 21.08.2013 Ex.
DW1/A to Ex. DW1/E in favour of the defendant by Kaushal Verma in respect of the suit property.
31. The plaintiff is not one of the executants of the documents dated 21.08.2013 Ex. DW1/A to Ex. DW1/E which were executed by Kaushal Verma in favour of the defendant in respect of the suit property. The plaintiff cannot seek cancellation of documents Ex. DW1/A to Ex. DW1/E as per section 31 of the Specific Relief Act, 1963. The appropriate remedy available to the plaintiff is to seek declaration as per section 34 of the Specific Relief Act, 1963. The plaintiff could not prove that she derived ownership rights in respect of the suit property on basis of documents Ex. PW1/B to Ex. PW1/E executed by Kaushal Verma. The plaintiff is not entitled for seeking any declaration regarding validity of documents dated 21.08.2013 Ex. DW1/A to Ex. DW1/E executed in favour of the defendant by Kaushal Verma. Issue (c) is decided against the plaintiff.
ISSUE (d) Whether the plaintiff is entitled for decree of permanent injunction as prayed in the suit? (OPP)
32. Section 37(2) of the Specific Relief Act, 1963 lays down that a permanent injunction can only be granted by a decree at the hearing and upon the merits of the case. In simple words, for obtaining a permanent injunction, a regular suit is to be filed in which the right claimed is examined upon merits and finally, the injunction is granted by means of judgment. A permanent injunction therefore finally decides the rights of a person whereas a temporary injunction does not do so. A permanent injunction completely forbids the defendant to assert a right which would be contrary to the rights of the plaintiff specifies certain CS 380/16 RENU VERMA V PARVEEN KUMAR 22/25 circumstances under which permanent injunction may be granted. Section 38 of the Specific Relief Act, 1963 deals with perpetual injunction. It reads as under:-
38. Perpetual injunction when granted.--
(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:
--
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
33. The plaintiff and the defendant have made rival claims regarding ownership of the suit property on basis of title documents stated to be executed by Kaushal Verma. The plaintiff could not establish that she derived legal title in respect of the suit property on basis of documents dated 22.02.2013 Ex. PW1/B to Ex. PW1/F executed by Kaushal Verma. The plaintiff pleaded and deposed in affidavit Ex. PW1/1 that she in June 2013 shifted to Loni, UP and on 23.06.2013 visited the suit property and locks of two rooms and kitchen were found broken. The local property dealer after misguiding and influencing Kaushal Verma took forceful possession of the suit property. The defendant on basis of forged title documents captured the suit property without any right, interest and title. The plaintiff prayed for decree of permanent injunction for restraining the defendant from alienating, transferring, encumbering, disposing off and parting with the possession of the suit property. The plaintiff could not prove valid transfer of title of the suit property in her favour on basis of documents Ex. PW1/B to Ex. PW1/F executed by Kaushal Devi. The plaintiff at time of filing of present suit was not in possession of the suit property. In Balkrishna Dattatraya Galande V Balkrishna Rambharose Gupta, 1509 of 2019 decided on 06th February, 2019 the Supreme Court observed and held that for seeking relief under Section 38 of the Specific CS 380/16 RENU VERMA V PARVEEN KUMAR 23/25 Relief Act, the Plaintiff filing such a suit has to prove that he is in actual possession as on the date of the suit for seeking permanent injunction. The possession of the plaintiff cannot be based upon the inferences; drawn from circumstances. The plaintiff has to prove actual possession for grant of permanent injunction. It was observed that:-
The party seeking injunction based on the averment that he is in possession of the property and seeking assistance of the Court while praying for permanent injunction restraining other party who is alleged to be disturbing the possession of the plaintiff, must show his lawful possession of the property.
As discussed earlier, in a suit filed under Section 38 of the Specific Relief Act, possession on the date of suit is a must for grant of permanent injunction. When the first respondent-plaintiff has failed to prove that he was in actual possession of the property on the date of the suit, he is not entitled for the decree for permanent injunction.
The plaintiff is not entitled for injunction as prayed for. Issue (d) is decided against the plaintiff.
ISSUE NO 5 Relief
34. The entire journey of the judicial process is to find the truth from the pleadings, documents and evidence of the parties. Truth is the basis of the justice. The Supreme Court in A.S. Narayana Deekshitulu V State of A.P., (1996) 9 SCC 548 observed that from the ancient times, the constitutional system depends on the foundation of truth. In Zahira Habibullah Sheikh V State of Gujarat, (2006) 3 SCC 374 it was observed that right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The Supreme Court in Dalip Singh V State of UP, (2010)2SCC114 observed that truth constituted an integral part of the justice delivery system. In Maria Margarida Sequeria Fernandes V Erasmo Jack de Sequeria, (2012)5SCC370, it was observed that the truth should be guiding star in the entire judicial process. Truth alone has to be the foundation of justice. This view was reiterated in A. Shanmugam V Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam. In view of above discussions and findings on issue (a) to CS 380/16 RENU VERMA V PARVEEN KUMAR 24/25
(d) the suit of the plaintiff is dismissed. The plaintiff and the defendant shall bear their own costs. It is made clear that no judicial opinion, assessment, determination and adjudication in present case on facts and law shall be taken or construed as conferring any right, title or interest in the suit property in favour of the defendant on basis of documents dated 21.08.2013 Ex. DW1/A to Ex. DW1/E. Decree-sheet be prepared accordingly. File be consigned to record room.
ANNOUNCED IN THE
COURT ON 25.09.2020
Digitally signed (DR. SUDHIR KUMAR JAIN)
by Sudhir PRINCIPAL DISTRICT AND SESSIONS JUDGE
Sudhir Kumar Jain NORTH EAST
Location: KARKARDOOMA COURTS, DELHI
Kumar Karkardooma
courts, Delhi
Jain Date:
2020.09.25
17:04:31 +0530
CS 380/16 RENU VERMA V PARVEEN KUMAR 25/25