Delhi District Court
Riyaz Ahmad vs Muzammil Hussain on 25 August, 2022
IN THE COURT OF MS. POOJA TALWAR
ADDITIONAL DISTRICT JUDGE-01, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI.
RCA No. 42/2019.
DLST01-006945-2019.
In the matter of:
Riyaz Ahmad,
S/o Sh. Hafiz Janna Hussain,
R/o A-II, 329, Madangir,
New Delhi. .....Appellant.
versus
Muzammil Hussain,
S/o Sh. Hafiz Janna Hussain,
R/o A-II, 3rd Floor, 329, Madangir,
New Delhi. .....Respondent.
Date of institution : 10.10.2019.
Final arguments heard on : 22.08.2022.
Judgment pronounced on : 25.08.2022.
JUDGMENT
Appeal under Order 96 read with Order XLI & Section 151 of Code of Civil Procedure, 1908 against impugned Judgment and Decree dated 06.09.2019, passed by Ld. Civil Judge-01, South District, Saket Courts, Delhi.
1. The appellant has filed the present appeal against Judgment and decree dated 06.09.2019, passed by ld. Trial Court wherein the suit of the plaintiff was dismissed with costs.
RCA No.42/2019, Riyaz Ahmad v. Muzammil Hussain, Page No.1/15Brief facts of the plaint:
2. Brief facts as stated in the plaint are that the plaintiff had purchased the property bearing no. A-II/329, Madangiri, New Delhi from one Shabbir Ahmad for sale consideration of Rs.64,000/- and since then he has been in actual and physical possession of the same. The said property was constructed upto three storey by the plaintiff from his own resources. It is further stated that plaintiff has two brothers namely Shakeel Ahmad and the defendant and that in the year 2000 defendant was allowed by the plaintiff to use one store measuring 7x7 feet at the ground floor and third floor of the suit property and roof of the third floor has been in joint use of the plaintiff and two brothers. The plaintiff had also allowed his brother Shakeel Ahmad to use the first floor of the suit premises. Plaintiff is not educated and there was love and affection between the plaintiff and the brothers. He used to put his signatures at the instructions of the defendant for any purpose out of trust. For the last several months before filing the present suit, there was change in behaviour of the defendant towards plaintiff and his family members and defendant claimed himself to be the owner of the third floor and threatened to part with possession of third floor in favour of third person.
3. In October 2009, he also threatened to install a gate at the roof of the third floor blocking the way of the plaintiff to the roof and also threatened that roof would be in exclusive use of defendant. On 16.10.09, defendant specifically denied the RCA No.42/2019, Riyaz Ahmad v. Muzammil Hussain, Page No.2/15 plaintiff and his family members for use of the roof and threatened the plaintiff with dire consequences and also filed the false complaint against the plaintiff. In presence of police officials, plaintiff was forced to put his signatures on some papers and defendant in connivance with police officials managed the execution of settlement dated 16.10.2009 to the effect that an iron gate would be installed at the third floor. Subsequently, plaintiff came to know that defendant had forged a power of attorney and Will showing the same to the plaintiff in respect of suit premises and it was found that defendant had fraudulently managed the execution of these documents. Thereafter, plaintiff took steps for cancellation of these documents by presenting a cancellation deed dated 05.11.2009 before the office of Sub-Registrar and asked the defendant to vacate the suit premises but to no avail, hence, the suit was filed.
4. Defendant filed written statement taking preliminary objections about maintainability of the suit, appropriate court fee and cause of action in favour of the plaintiff. It is stated that defendant had purchased the suit property from the plaintiff for sum of Rs.80,000/- and plaintiff had executed a registered GPA, Will along with agreement to sell, receipt and affidavit in this regard.
5. In reply on merits, it is denied that plaintiff had purchased the property for sum of Rs.64,000/- and that he is in possession of whole property. It is also denied that third floor and RCA No.42/2019, Riyaz Ahmad v. Muzammil Hussain, Page No.3/15 structure of 7x7 feet at ground floor has been made by plaintiff from his own resources. It is admitted that plaintiff and defendant are brothers along with one Shakeel Ahmad, however, it is denied that plaintiff had permitted the defendant to use the suit property and it is reiterated that defendant had purchased the same from the plaintiff. It is further stated that plaintiff is not staying in the suit property and ordinarily residing out of Delhi. It is further denied that plaintiff had put signatures at the instruction of the defendant without reading the contents of the documents. It is further stated that plaintiff along with Shakeel Ahmad had agreed and had signed the settlement before the police on 16.10.2009 to permit the defendant to install a gate. It is further specifically denied that plaintiff has cancelled the GPA and Will by cancellation deed dated 05.11.2009 and it is stated that no prior notice of the same was given to defendant and that same cannot be cancelled as the same was for the sale of property and consideration was taken by the plaintiff. All the other allegations of plaint are denied with the request to dismiss the suit.
6. Replication was filed on behalf of plaintiff denying all the allegations leveled by the defendant and reiterated the averments of plaint.
7. From the pleadings of the parties, following issues are framed on 21.03.2011:
1. Whether the plaintiff is entitled to a decree of possession of RCA No.42/2019, Riyaz Ahmad v. Muzammil Hussain, Page No.4/15 suit property which is one store at the ground floor and the entire third floor along with roof top of property no. A-2/329, Madangir, New Delhi? OPP.
2. Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant, his legal heirs, agents, etc. from installing a gate at the stairs of the suit property? OPP.
3. Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant, his legal heirs, etc. from creating third party interest in any manner whatsoever in the suit property?(OPP).
4. Whether the plaintiff is entitled to a decree of damages for unauthorized occupation till the vacation of the suit property? OPP.
5. Whether the suit has been properly valued for the purposes of court fee? OPD.
6. Relief.
8. In support of his case, the plaintiff examined himself as PW1 and tendered his affidavit as Ex. PW1/A and relied upon documents Ex. PW1/1 to Ex. PW1/8. He also examined PW-3 Jameel Ahmad and one witness from the office of Sub-Registrar as PW4, who proved the cancellation deed Ex.PW1/5. Plaintiff's witnesses were duly cross-examined by counsel for the defendant. Thereafter, plaintiff's evidence was closed.
9. Defendant also examined himself as DW1 and tendered his affidavit as Ex.DW1/A and relied upon documents RCA No.42/2019, Riyaz Ahmad v. Muzammil Hussain, Page No.5/15 Ex.PW1/D1, Ex. PW1/D2 and Ex. PW1/4 (colly). He also examined DW-2 Faiyaz Ahmad, and DW-3 Naresh Kumar in support of his case. Defendant's witnesses were duly cross- examined by counsel for plaintiff and thereafter defendant's evidence was closed.
Grounds of Appeal:
10. Present appeal has been preferred on the grounds that the impugned judgment passed by the Ld. Trial Court is misconceived in fact and law, same is passed in complete ignorance of the facts and circumstances of the case and non- consideration of documentary evidence placed in support of the case, hence the same is liable to be dismissed. Ld. Trial Court has committed gross illegality in wrongly applying the relevant provisions of law relating to transfer of property.
11. Ld. Trial Court has failed to appreciate that plaintiff preferred the suit for possession, permanent injunction and damages based on title of the entire property and the defendant was wrongfully and illegally occupying the suit property consisting of third floor alongwith the roof over it and one store on the ground floor. Ld. Trial Court also failed to appreciate that it was for the defendant to prove its case on the strength of the documents and oral evidence placed on record independent of the case of the plaintiff and defendant cannot rely upon documents of the plaintiff.
RCA No.42/2019, Riyaz Ahmad v. Muzammil Hussain, Page No.6/1512. Ld. Trial Court has also failed to appreciate that even in case of contradiction in evidence the entire testimony cannot be discarded outrightly and documentary evidence shall have precedence over oral evidence and illiterate person should be appreciated ignoring minor discrepancies and contradictions.
13. Ld. Trial Court has also failed to appreciate that it is the case of the plaintiff that defendant illegally and fraudulently managed to obtain the signatures of the plaintiff in the name of and for the purpose of house tax and water connection and on discovery of the said fact, plaintiff immediately lodged a complaint before the police and proceeded to cancel the same vide cancellation deed dated 05.11.2009. Both the said facts have been pleaded and proved in evidence.
14. Ld. Trial Court has also failed to appreciate that plaintiff has specifically admitted his signatures on Ex.PW1/5 (colly) during cross-examination on 06.06.2013 and further explained that the said documents were executed fraudulently by the defendant. Thus entire appreciation of evidence is erroneous .
15. Ld. Trial Court has also failed to appreciate that by virtue of amendment brought about to Section 53A of the Transfer of Property Act, 1882 w.e.f.24.09.2001 an agreement to sell in nature of part performance cannot create rights unless the agreement is registered and stamped 90% of the value of the sale deed. In the present case agreement to sell is neither registered RCA No.42/2019, Riyaz Ahmad v. Muzammil Hussain, Page No.7/15 nor adquately stamped and GPA is deficiently stamped. Therefore, no rights or interest pass in terms of Section 53A of the Transfer of Property Act. Ld. Trial Court has also failed to appreciate that GPA dated 31.05.2002 is neither in the name of agreement to sell nor conveyance nor in the name of agency creating interest.
16. Ld. Trial Court has further erred in imposing cost of Rs.10,000/- on the plaintiff as the suit filed by the plaintiff is on genuine cause of action and the order passed by the ld. Trial Court deserves to be set-aside.
17. For the sake of convenience, appellant is referred to as plaintiff and respondent as defendant.
18. I have heard arguments on behalf of both the parties and have perused the Trial Court records carefully.
Reasons for Decision:
19. Ld. Trial Court has already decided the issues but I hereby proceed to decide the issues again.
Issue No.1. Whether the plaintiff is entitled to a decree of possession of suit property which is one store at the ground floor and the entire third floor along with roof top of property no. A-2/329, Madangir, New Delhi? OPP.
RCA No.42/2019, Riyaz Ahmad v. Muzammil Hussain, Page No.8/1520. Onus to prove this issue was on the plaintiff. It was for the plaintiff to prove that he is entitled to seek possession of one store on the ground floor, entire third floor with roof rights from the defendant. Plaintiff has claimed himself to be the owner of the entire property bearing No.A-2/329, Madangir, New Delhi. It is claimed by him that the defendant was permitted to reside in the property but he became dishonest and claimed himself to be the owner of the third floor and threatened to dispossess the plaintiff. The plaintiff alleges that the defendant forged General Power of Attorney (GPA) and Will with respect to third floor of the premises, some portion of the ground floor and roof rights. He never executed the said documents in favour of the defendant but was made to believe that the said documents were for the purpose of house tax as well as for installation of water connection. Upon receipt of knowledge of execution of the said documents, the plaintiff cancelled the GPA and Will vide cancellation dated 05.11.2009.
21. In order to decide the controversy, ld. Trial Court delved into the legal and factual aspect of both execution and cancellation of documents by the plaintiff. Without discussing in detail the legal aspect which has already been dealt with in detail by the ld. Trial Court, I would proceed to decide whether the plaintiff has approached this court with clean hands to seek claimed relief. The plaintiff has pleaded that he was unaware about the execution of documents which were fraudulently got RCA No.42/2019, Riyaz Ahmad v. Muzammil Hussain, Page No.9/15 executed by the defendant from him. The defendant has been able to counter the said fact by examining son of the attesting witness who categorically deposed that the signatures on the GPA as well as Will are that of his father. Even the draftsman who prepared the said documents deposed in favour of the defendant. Testimony of plaintiff has all along been contrary. At one place he has admitted to have signed documents without knowing the contents and on the other hand he has stated that he did not execute the documents at all. In the cancellation deed executed by him, it is specifically mentioned that the documents Ex.PW1/4 (colly) were executed in favour of the defendant for which now cancellation is being sought by mutual consent.
22. In case the plaintiff was unaware about the execution of documents Ex.PW1/4 (colly) in favour of the defendant then why was it mentioned in the cancellation documents that said said documents were executed by him. On one hand, it is mentioned that the cancellation deed is being executed by mutual consent and in the subsequent paragraphs of the said document, it is mentioned that the documents Ex.PW1/4 for which the cancellation is sought were obtained by fraud. The said contents are contrary to the case of the plaintiff as pleaded in the plaint. In the plaint, the plaintiff has approached this court on the premise that he was made to sign certain documents by the defendant under the pretext that those were pertaining to the house tax as well as for water connection. Whereas in the cancellation deed, it is mentioned that documents were executed by the plaintiff in RCA No.42/2019, Riyaz Ahmad v. Muzammil Hussain, Page No.10/15 favour of the defendant. Both these statements are contrary to each other. Moreover, the cancellation was got done by the Registrar office stating that the same is being done with due knowledge and with mutual consent of the defendant. Absolutely no document has been brought on record by the plaintiff proving that cancellation of documents was brought to the knowledge of the defendant.
23. Ld. Trial Court has rightly dealt with the aforesaid issue while dealing with Section 202 of the Contract Act, 1872. The same is not being reproduced for the sake of brevity. Ld. Trial Court has also dealt with Section 53A of the Transfer of property Act in detail and the same does not need any more deliberation.
Section 202 of the Contract Act is as follows:- Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract be terminated to the prejudice of such interest."
(7) For the purposes of the Law of Contract, therefore, it would not be useful to restrict the meaning of the work 'interest' by narrow compass in which this world is used at times in relation to immovable property. For instance, the last sentence of Section 54 of the Transfer of property Act states that a contract for sale of itself does not create any interest in or charge on immovable property. Similarly, Section 17(1)(b) of the Registration Act makes only those documents compulsorily registrable which create, declare, assign, limit or RCA No.42/2019, Riyaz Ahmad v. Muzammil Hussain, Page No.11/15 extinguish any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property. Since an agreement for sale does not create such a right, title or interest, it may not be compulsorily registrable. But in the context of the Contract Act, it cannot be said that a person who is the beneficiary of an agreement of sale has no right or interest in the subject matter of the sale. He has a legally enforceable right and interest in enforcing the contract of sale by the execution of a sale deed and in getting possession of the property agreed to be soled under the provisions of the Specific Relief Act. In the English Common Law, the specific performance of contracts was a part of the law of contract. This is why Chapter IV of the Contract Act deals with the performance of contracts which includes the performance of contracts relating to immovable property also. In fact, section 4 of the Transfer of Property Act says that the chapters and sections of that Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872. Therefore, the respondent in whose favour the appellant had executed an agreement for the sale of an immovable property had an interest in the subject-matter of the contract, namely, the shop, turn the purposes of Section 202 of the Contract Act if not for the purposes of the Transfer of Property and the Registration Acts.
24. By virtue of Section 53A of the Transfer of Property Act a transferee cannot take aid of this Section to establish his right as owner of the property but he can protect his possession having recourse to the said Section. Reliance is being placed on RCA No.42/2019, Riyaz Ahmad v. Muzammil Hussain, Page No.12/15 judgment in M Gopal v. K Janga Reddy & Ors, Manu/AP/0319/2011. In case, the intent of law was such that executor of GPA after receiving consideration had the authority to revoke the same upon without the knowledge of the transferee then the transferee would be left with no remedy.
25. Once the consideration is received by the transferor and the possession is handed over pursuant to receipt of the same, Section 53A of the Transfer of Property Act would be available to the transferee.
26. Ld. Trial Court has rightly dealt with judgment in Suraj Lamp and the ratio of the said judgment with respect to non-execution of the sale deed as well as rights of the transferee for consideration. IN the instant case though the defendant cannot approach this court to seek declaration unless the sale deed is executed in his favour but he is well with his right to protect his possession which was granted to him for consideration.
27. Plaintiff has failed to prove that no consideration was received by him from the defendant. In view of above discussion, the plaintiff has absolutely failed to prove that the GPA was got cancelled by him with the knowledge of defendant. Thus, the plaintiff is not entitled to the claimed relief. Present issue is decided against the plaintiff.
RCA No.42/2019, Riyaz Ahmad v. Muzammil Hussain, Page No.13/15Issue No.2. Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant, his legal heirs, agents, etc. from installing a gate at the stairs of the suit property? OPP.
28. Onus to prove this issue was on the plaintiff. In view of the observations made in issue no.1, the plaintiff has failed to prove his right over the roof which as per document E.xPW1/4 was granted to the defendant. Plaintiff has himself stated that he entered into a settlement with the defendant in the police station. He has failed to prove that the settlement was made under coercion. Hence, no restrainment can be passed against the defendant restraining him to use the property in his possession. Hence, this issue is decided against the plaintiff.
Issue No.3. Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant, his legal heirs, etc. from creating third party interest in any manner whatsoever in the suit property?OPP.
AND Issue No.4. Whether the plaintiff is entitled to a decree of damages for unauthorized occupation till the vacation of the suit property? OPP.
29. Both the issues are taken together as both are inter connected. Since issue no.1 is decided against the plaintiff, plaintiff is not entitled to seek restrainment against the defendant RCA No.42/2019, Riyaz Ahmad v. Muzammil Hussain, Page No.14/15 either from creating third party interest or from claiming damages from him. Plaintiff has thus failed to prove that possession of the defendant is unauthorized or illegal hence, no decree of damages can be passed against him. This issue is also decided against the plaintiff.
Issue No.5. Whether the suit has been properly valued for the purposes of court fee? OPD.
30. As stated before the ld. Trial Court that this issue has not been pressed and the same has not been challenged before this court, hence this issue needs no deliberation. This issue is disposed of accordingly.
31. In view of my findings above, I find no merit in the appeal. There is no infirmity or illegality in the order passed by the ld. Trial Court hence the present appeal is dismissed. Let the cost deposited by the plaintiff be released to the defendant. Trial Court record be sent back with copy of this order. Appeal file be consigned to record room after due compliance.
Digitally signed by POOJAAnnounced in open court POOJA TALWAR
Date:
On 25th August, 2022. TALWAR 2022.08.26
16:38:22
(Pooja Talwar)
+0530
Additional District Judge-01,
(South) Saket District Courts,
New Delhi.
RCA No.42/2019, Riyaz Ahmad v. Muzammil Hussain, Page No.15/15