Delhi District Court
Sh. Harpal Singh Tomar vs Sh. Dinesh Panwar on 13 October, 2015
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02, (NE)
KARKARDOOMA COURTS, DELHI
CS No. 259/14
Unique ID No : 02402C0398662013
IN THE MATTER OF:
1. Sh. Harpal Singh Tomar
S/o Late Sh. Niranjan Singh
2. Smt. Saroj Tomar
W/o Sh. Harpal Singh Tomar
Both R/o:
C1/181, West Dayalpur,
P. S. Khajoori Khas, Delhi110094. .............. Plaintiffs
V E R S U S
Sh. Dinesh Panwar
S/o Late Sh. Mangal Sain
R/o C1/181, West Dayalpur,
P. S. Khajoori Khas, Delhi110094 .............. Defendant
Date of Institution : 10.12.2013
Received in this court : 26.02.2014
Date of Arguments : 12.10.2015
Date of Judgment : 13.10.2015
Decision : Suit is decreed with cost.
CS No. 259/14 1/33
Harpal Singh Tomar & Ors V/s Dinesh Panwar
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Suit for possession & mesne profit/damages
JUDGMENT
1. The plaintiffs filed this suit for possession and mesne profits/damages against the defendant regarding property i.e One room in Property No. C1/181, West Dayalpur, Pusta Road, Karawal Nagar, Delhi94 ( hereinafter called the suit property as shown red colour in the site plan).
2. It is stated in the plaint that plaintiff No. 1 has purchased 400 sq. yards of land in Khasra No. 408, 409, Village Biharipur, Illaqa Shahdara, Delhi from Sh. Ramsingh in 1983 vide GPA, Agreement to Sell and cash receipt registered with SubRegistrar, Delhi which is now known as Property No. C1/181, West Dayalpur, Pusta Road, Karawal Nagar, Delhi94. Out of 400 sq. yards, 100 sq. yards was gifted by the plaintiff No. 1 to his sister, Smt. Rajbala in 1983 and plaintiff No. 1 is in possession of remaining 300 sq. yards. In 2002 OctoberNovember, the plaintiffs constructed two rooms, Latrine, Bathroom and Boundary wall with super structure in 300 sq. yards (as shown in blue colour in site plan attached with the plaint). The defendant is the brother in law of the plaintiff No. 1. In December, 2002 defendant came to Delhi for livelihood and was permitted to use one room (suit property) as licensee. When the plaintiff No. 1 after retirement desired to shift Delhi, he was shocked to know that the defendant has installed electricity meter in his CS No. 259/14 2/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. name in the suit property with the help of Ms. Usha Rani (Bhabhi /Sali). Ms. Usha Rani represented herself as wife of plaintiff No. 1 and NOC was forged. Complaint dt. 03.09.2008 was made by the plaintiff No. 1 to BSES and PS Khajoori Khas and thereafter, electricity connection was disconnected. The plaintiffs thereafter requested the defendant to vacate the suit property but the defendant in collusion with Ms. Usha Rani tried to create third party interest in the suit property by forging Agreement to sell and GPA dt. 24.12.2007. The plaintiffs terminated the license w.e.f 15.10.2009 vide legal notice dt. 24.09.2009 but the defendant despite service of the legal notice, the defendant failed to vacate the suit property. The plaintiffs have also registered one FIR No. 184/09 against the defendant U/s 467/468/471/120B at PS Khajoori Khas. The defendant and Ms. Usha Rani has also filed one injunction suit against the plaintiffs which is pending. As the defendant failed to vacate the suit premises despite termination of license, the defendant is in unauthorized and illegal possession of the suit property and is liable to pay the mesne profit / damages. Hence, the suit is filed by the plaintiffs against the defendant.
3. After the service of summons upon the defendant, the written statement was filed contending that this suit is not maintainable and filed without cause of action, the plaintiff has concealed the material facts. The defendant claimed that Smt. Usha Rani W/o Sh. Narender Singh Panwar is the owner of the suit property. The defendant admitted that plaintiff No. 1 is the CS No. 259/14 3/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. owner of the plot measuring 400 sq. yards having purchased vide documents dt. 15.07.83. In the year 2001, Smt. Usha Rani gave Rs. 1,00,000/ to the plaintiff No. 1 for purchasing 300 Sq. yards but no writing was done regarding the said payment. As further stated on 24.12.07, plaintiff No. 1 executed documents in favour of Smt. Usha Rani. The defendant further claimed that this suit is false without any merits, plaintiff has no right, title or interest in the suit property and prayed to dismiss the suit with cost.
4. Replication to the WS of the defendant was filed by the plaintiff whereby the plaintiff has reiterated the averments made in the plaint denying the contentions of the defendant in the written statement.
5. In view of the pleading of the parties, following issues were framed vide order dt. 16.04.2014: (1) Whether the plaintiff is entitled for decree of possession as prayed in the suit? OPP (2) Whether the plaintiff is entitled for decree of Rs. 1,44,000/ towards damages as prayed in the suit? OPP (3) Whether the plaintiff is entitled for decree of Rs. 72,000/ towards mesne profits alongwith interest as prayed in the suit? OPP (4) Whether the plaintiff is entitled for damages/mesne profits @ Rs. 6,000/ PM as prayed for? OPP CS No. 259/14 4/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
(5) Relief.
And the case was fixed for plaintiff's evidence.
6. Plaintiff No. 1 examined himself as PW1 by way of affidavit Ex. PW1/A and deposed regarding the facts as mentioned in the plaint. The witness has deposed nothing but the averments made in the plaint. The witness has also deposed regarding the relevant documents i.e. Site plan which is Ex. PW 1/ 1, certified copy of legal notice dt. 24.09.09 is Ex. PW 1/ 2, speed post and registered receipt, couriers & UPC is Ex. PW 1/ 3( colly). Original registered two AD is Ex. PW 1/ 4( colly). Certified copy of the cross examination in civil suit No. 288/11 in case titled as Dinesh Panwar V/s BSES & Ors is Ex. PW 1/ 5. certified copy of GPA, agreement to sell and cash receipt dt. 15.07.83 is Ex. PW 1/6. certified copy of bank pass book and account statement for the period 2000 to 2003 of plaintiff No. 2 is Ex. PW 1/
7. Certified copy of letter dt. 22.09.08 by MLA Sh. Mohan Singh Bisht by which he withdrew his earlier recommodation is Ex. PW 1/8. Certified copy of complaint dt.03.09.08 against defendant to Manager BSES is Ex. PW 1/9. certified copy of removal letter of electricity connection dt. 25.09.08 taken by forged documents is Ex. PW 1/10. Certified copy of house tax receipt by which house tax has been paid is Ex. PW 1/ 11. certified copy of Gas connection documents and book is Ex. PW 1/12. Certified copy of passbook of my wife in SBI is Ex. PW 1/ 13. Certified copy of electricity bill of CS No. 259/14 5/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. plaintiff No. 2 Smt. Saroj Tomar dt. 03.11.13 and 02.01.09 and original electricity bill of plaintiff No. 2 Smt. Saroj Tomar dt. 26.10.13 is Ex. PW 1/ 14( colly). Certified copy of ration card of plaintiff dt. 23.01.09 is Ex. PW 1/
15. Certified copy of reply of RTI dt. 05.05.11 given by Sh. B. K Singh from the office of Additional Deputy Commissioner of police, North East, Delhi is Ex. PW 1/16 alongwith photocopy of complaint given by Smt. Usha Rani and Sh. Om Prakash saini and the report filed by the IO dt. 20.01.09 is Ex.PW 1/
17. Certified copy of application of IO/ASI TM Bhatt dt. 05.01.09 to MLO is Ex. PW ;1/ 18. certified copy of particulars of Motorcycle No. DL 13S 2677 is Ex. PW 1/19. certified copy of complaint dt. 03.09.08, 16.11.08 and 11.12.08 filed by me is Ex. PW 1/ 20( colly). Certified copy of the order dt. 17.03.09 is Ex. PW 1/ 21 passed by learned MM in criminal complaint No. 11/09. Certified copy of statement dt. 22.02.09 of Sh. Dinesh Pawar before IO is Ex. PW 1/22. Certified copy of statement dt. 11.04.09 written by local MLA to IO is Ex. PW 1/ 23. Certified copy of statement dt. 23.04.09 written by Kishore Bhandari Advocate President Seelampur Bar Association to IO is Ex. PW 1/
24. Certified copy of statement fo Mr. Yasheen ( property dealer) to IO is Ex. PW 1/ 25. Certified copy of status report dt. 12.05.09 filed by IO before learned MM is Ex. PW 1/ 26. Certified copy of order dt. 14.07.09 is Ex. PW 1/26 A passed by learned MM in Criminal complaint No. 11/09. Certified copy of FIR No. 184/09 dt. 17.07.09 is Ex. PW 1/ 27. certified copy of RTI CS No. 259/14 6/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. reply dt. 21.04.11 is Ex. PW 1/28. Certified copy of reply of RTI dt. 02.08.11 is Ex. PW 1/ 29. Certified copies of FIR No. 203/96, FIR No. 285/96, 133/99 is Ex. PW 1/30( Colly). Certified copy of FIR No. 232/12, PS Khajoori Khas dt. 25.07.12 is Ex. PW 1/ 31. Certified copy of complaint dt. 16.03.11 to SHO is Ex. PW 1/32. certified copy of complaint dt. 17.03.11alongwith meter testing report is Ex. PW 1/ 33( colly).
The plaintiff further examined his son namely Brijesh Kumar Tomar as PW2 by way of affidavit Ex. PW 2/A, who deposed nothing but as deposed by PW1. As no other witness was examined by the plaintiff, the PE was closed and case was fixed for DE.
7. The defendant examined himself as DW1 vide affidavit by way of evidence Ex. DW1/A and deposed regarding the averments as mentioned in the written statement.
Defendant examined DW2 Smt Usha Rani Panwar by way of affidavit Ex. DW 2/ A who deposed nothing but the facts as deposed by the DW1. As no other witness remained to be examined by the defendants, the DE was closed.
8. I have heard the Ld. counsel for the parties and gone through the relevant materials on record. I have also considered the relevant provisions of law.
9. Having drawn my attention to the pleadings of the parties, testimony of CS No. 259/14 7/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. witnesses and materials on records, it is submitted by learned counsel for the plaintiffs that plaintiffs have proved their case and the defendant has no right, title or interest in the suit property and it has been admitted/ proved that the plaintiffs are the owner of the suit property. The Ld. Counsel for the plaintiffs prayed to pass decree in favour of plaintiffs and against the defendant. The written submissions is also filed on behalf of plaintiff in support of claim and contentions relying upon the judgments mentioned below in support : (1) 2014 Legal Eagle (SC) 9Praful Manohar Rele V/s Krishnabai Narayan Ghosalkar & Ors.
(2) 1952 Legal Eagle (SC) 42State of
Bombay V/s Purushottam Jog Naik
(3) AIR 1956 Cal 496Bisakha Rani Ghose
V/s Satish Chander Roy Singha & Ors.
(4) AIR 1962 Patna 101Dipendra Nath
Sarkar V/s State of Bihar
(5) AIR 1990 Cal 37Abdul Rasheed V/s
Municipal Corporation & Ors.
(6) Delhi High Court Rules Chapter XVII
(7) Sections 17,18 58, 116 of the Evidence Act, 1872
The Ld. Counsel for the defendant on the other hand, having drawn my CS No. 259/14 8/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. attention to the testimony of the witnesses and documents on records submitted that the plaintiffs have failed to prove the case and discharge the onus. It is also submitted by Ld. counsel for the defendant that the suit property was purchased by Smt Usha Rani, plaintiffs have no locus standi to file this suit and plaintiffs have concealed the material facts and therefore, the suit is liable to be dismissed. It is further submitted by counsel for the defendant that the plaintiff No. 1 has sold the suit property to Smt. Usha Rani, there is no ground for passing decree against the defendant and therefore, the suit be dismissed with cost. Written submissions is also filed on behalf of defendant in support of contentions.
10. I have given my thoughtful consideration to the submissions made on behalf of the parties. My findings issuewise are as under : Issue No. I : (1) Whether the plaintiff is entitled for decree of possession as prayed in the suit? OPP
11. The onus to prove this issue was on the plaintiff. 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 CS No. 259/14 9/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. probabilities. In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe that "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 decree".
12. 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 CS No. 259/14 10/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. 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.
13. The plaintiff No. 1 claimed himself the owner of the suit property. There is no dispute by the defendant regarding ownership of the plaintiff but the defendant claimed that plaintiff No. 1 has sold the suit property to Smt. Usha Rani. It is not worthy that said Smt. Usha Rani was not a party in this suit and an application U/o 1 Rule 10 CPC filed by her has been dismissed. The said order of this application U/o 1 Rule 10 CPC of Smt. Usha Rani has not been challenged and accordingly became final. It is further admitted that Smt. Usha Rani filed one suit for injunction against the plaintiff herein for permanent injunction. It is further noted that not even a single documents filed by defendant in support of claim and contention that Smt. Usha Rani either the owner or she has purchased the suit property from plaintiff No. 1.
14. The evidence of the parties led before this Court is somehow on the similar lines as contended in the plaint and written statement. The plaintiff CS No. 259/14 11/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. No. 1 examined himself as PW1 and deposed regarding the case. As noted, title of plaintiff No. 1 is admitted. The contentions of the defendant that plaintiff No. 2 is the owner in view of the testimony of plaintiff itself and therefore this suit is not maintainable appears to be baseless as ownership of plaintiff No. 1 is admitted and even if plaintiff No. 2 is the owner, she is the party in the suit. The PWs during cross examination categorically denied regarding selling of the suit property to Smt. Usha Rani and the defendant was granted permission to reside as a licensee in the suit property. It is reiterated that nothing is either produced or proved by the defendant in view of contention in the WS and merely oral and bald averments is not sufficient to prove the case and to deny the claim of the plaintiff. Smt. Usha Rani never remained in the suit property admittedly till today and claim of the defendant that the Smt. Usha Rani is the owner of suit property appears to be baseless and without any merits.
15. Merely existence of electricity connection in the name of Smt. Usha Rani in the suit property cannot make her owner of the suit property. It is also admitted that there is litigation between the parties and in the simplicitor suit for permanent injunction filed by defendant alongwith Smt. Usha Rani against the plaintiff, the title of the parties cannot be adjudicated. This court is guided in view of judgment of Supreme Court reported as AIR SC 2033 in this regard.
CS No. 259/14 12/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
16. The testimony of defendant on the other hand was totally shattered during cross examination. The witness during cross examination deposed that suit property is not in her name and in the name of Smt. Usha Rani. As stated, no documents has been produced or proved on record in support of such contentions. It is further admitted that plaintiffs are residing in the room adjacent to the room of the defendant. The question may be asked that plaintiff is residing in the said room and Smt. Usha Rani is the owner of premises, why action has not been taken against the plaintiffs nor the suit for possession has been filed against them. The defendant also admitted the receipt of legal notice dt. 24.09.09 Ex PW 1/ 2 whereby license of the defendants was terminated and defendant are asked to vacate the suit property. It appears that defendant has merely filed the photocopies of some documents stated to be executed by plaintiff No. 1 in the name of Smt. Usha Rani i.e. notarized GPA and agreement to sell. Even if the contentions of the defendant is accepted, these documents are not sufficient to create any right, title or interest in favour of Smt. Usha Rani as these documents are not registered. These documents are not helpful to defendant at all. The ownership of the plaintiffs is admitted by the defendant. 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. In view of this legal position of the Evidence Act, it is clear that it is for the defendant to prove that CS No. 259/14 13/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. Smt. Usha Rani is owner of the property having purchased the same from the plaintiff but the defendant failed to prove this facts.
17. It is appropriate and relevant to note the relevant legal provisions and authorities for proper examination and adjudication of the issues.
Section 5 of the Transfer of Property Act, 1882 ( ' TP Act' for short) defines ' transfer of property' as under: " 5. Transfer of Property defined: In the following sections " transfer of property " means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself 9 for to himself) and one or more other living persons; and " to transfer property" is to perform such act." XXX XXX Further Section 54 of the TP Act defines ' sales' thus :
" Sale" is a transfer of ownership in exchange for a price paid or promised or partpaid and partpromised.
Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be CS No. 259/14 14/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property."
Section 53 A of the TP Act defines ' part performance ' thus :
" Part Performance. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
And the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and had done some act in furtherance of the contract.
And the transferee has performed or is willing to CS No. 259/14 15/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor b the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
Section 17 of the Indian Registration Act, 1908: " 17. Documents of which registration is compulsory. (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866 ( 20 of 1866), or the Indian Registration Act, 1871 ( 8 of 1871), or the Indian Registration Act, 1877 ( 3 of 1877), or this Act came or comes into force, namely
(a) Instrument of gift of immovable property;
CS No. 259/14 16/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
(b) other nontestamentary instruments which purport or operate to create, declare, assign, limit or extinguish , whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
18. It is settled law that title of immovable property above the value of Rs. 100/ can only be transferred by way of a registered instrument as prescribed Under Section 17 of the Indian Registration Act, 1908 and by way of documents of sale as recognized under Section 54 of the Transfer of the Property Act. As held in AIR 1969, SC 1316, the documents of which registration is necessary under the transfer of Property Act ( such as under
Section 54 of the TP Act) but not under the Registration Act fall within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction of acting any immovable property comprise therein and do not affect any such immovable property.
19. As held in 128 (2006) DLT 407 (DB) titled M. L. Aggarwal Vs. Oriental Bank of Commerce & Ors, : " The petitioner has only produced an agreement to sell, will and a power of attorney and a receipt for payment of money but these in our opinion do not constitute a sale. Under Section 17 (1) (b) of the Registration Act, Sale of an immovable property can only be by a registered deed. In our opinion, the petitioner has no right, title or interest in the suit property as he has not CS No. 259/14 17/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. purchased it by any registered sale deed. An immovable property cannot be purchased by a mere power of attorney or agreement to sell."
The ratio was further reiterated by Hon'ble Delhi High Court in AIR 2003, Delhi 120 titled G. Ram Vs. DDA wherein it is mentioned that transfer of immovable property can only be affected by executing a registered documents. Merely making an agreement of sale or execution of power of attorney could not transfer right, title or interest of any immovable property.
20. 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) . As held, the document of title i.e. GPA , Agreement to Sell, Will and receipt would not confer ownership rights in respect of immovable property in his favour. Hon'ble Supreme court vide order dt. 15.05.09 reported as Suraj Lamps & Industries V/s State of Haryana, 2009(7) SCC (366) referred illaffects of GPA sells or sell agreement/ GPA/ will transfer holding that there cannot be sell by execution of power of attorney nor there can be transfer by execution on agreement to sell and power of attorney and will.
It is relevant and necessary to reproduce relevant paras of judgment of Hon'ble Supreme Court in Suraj Lamps ( supra) reported as Manu/SC/1222/2011 which read as under: Scope of an Agreement of Sell: CS No. 259/14 18/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
11. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas V. S. A. Kamtam and Anr. (1977) 3 SCC 247, observed: "A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prasad Vs. Ram Mohit Hazra ( 1967) 1 SCR
293. The fiduciary character of the personal obligation created by a contract for sale is recognized in Section 3 of the Specific Relief Act, contract for sale is recognized in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein."
In India the word ' transfer' is defined with reference to the word ' convey'. The word ' conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership........ ....... that only on execution of conveyance ownership passes from one party CS No. 259/14 19/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
to another ..........."
In Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra (2004) (8) SCC 614, this court held: " Protection provided under Section 53 of the Act to the proposal transferee is a shield only against the transferor. It disentitles the tranferor 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"
It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance ( sale deed). In the absence of a deed of conveyance ( duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
12. Any contract of sale( agreement to sell) which is not a registered deed of conveyance ( deed of sale) would fall short of the requirements of Section 54 and 55 of Transfer of Property Act and will not confer any title nor transfer CS No. 259/14 20/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
any interest in an immovable property ( except to the limited right granted under Section 53A of Transfer of Property Act). According to Transfer of Property Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of Transfer of Property Act enacts that sale of 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.
Scope of Power of Attorney
13.A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him( see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In state of Rajasthan v. Basant Nehata MANU/SC/0547/2005 : MANU/SC/0547/2005 :
2005 (12) SCC 77 this court held :
A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of CS No. 259/14 21/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the Principal in favor of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powersof Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the done to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The done in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the CS No. 259/14 22/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
donee.
An Attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of grantor. Scope of Will
14. 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 vivo. 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.
It is said that so long as the testator is alive, a will is not be worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. ( see Sections 69 and 70 of Indian Succession Act, 1925). Registration of a will does not make it any more effective.
We therefore reiterate 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 CS No. 259/14 23/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. transfers' do not convey title and do not amount to transfer, nor can they be recognized or 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.
21. 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 CS No. 259/14 24/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney.
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.
22. It is settled that ownership and possession are two entirely different concepts. It necessarily follows that it is not only possible but also permissible to transfer one without the other. In simple words it is permissible to transfer ownership without transferring possession. Similarly, it is also possible to transfer possession without transferring ownership. It is relevant to note here that in this case neither the ownership had been transferred nor possession of the suit property was ever handed over to the defendant in pursuance of the provisions of the Transfer of Property Act.
23. Section 27 of Indian Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an obligation to set forth in the instrument all facts and CS No. 259/14 25/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. circumstances which affects the chargeability of duty on that instrument. Section 17 of the Registration Act, 1908 makes deed of conveyance compulsorily registrable. The transfer of an immovable property can only be by a deed of conveyance and in the absence of a deed of conveyance ( duly stamped and registered as required by law), no right, title or interest in an immovable property can be transfered. With regard to the legal validity of such documents i.e. agreement to sell, GPA, Will and receipt, the Hon'ble Supreme Court in the case of Suraj Lamps and Industries Pvt. Ltd. Vs. State of Haryana reported in AIR 2009 SC 3077 has held that such documents cannot create any right in respect of immovable property. The only way a contract of sale can create title to immovable property is by way of a deed of conveyance as defined under Section 54 of the Transfer of Property Act and registered in pursuance of the provisions of Section 17 of The Registration Act, 1908. No such document has been executed in favour of defendant by plaintiff.
24. 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. CS No. 259/14 26/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
25. As discussed, Smt. Usha Rani cannot be considered as owner on the basis of the GPA and agreement to sell( though no such documents have been proved on record). The defendant failed to prove regarding any transfer of property in favour of Smt. Usha Rani as claimed in the written statement. Neither Section 53 A of the Transfer of Property Act, 1882 nor Section 202 of the Contract Act, 1872 is applicable for ownership of defendant and the law laid down the Hon'ble Supreme Court in SLP (C) No. 13917 of 2009 titled as Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana & Ors. is squarely applicable in the facts of this case. Since there is no registered sale deed executed in favour of the defendant or Smt. Usha Rani in respect of the suit property in accordance with provisions of Transfer of Property Act, 1882, Smt. Usha Rani is not the owner of the suit premises.
26. In view of the aforesaid discussions and findings, it has been proved that the plaintiff No. 1 is the owner of the suit property and the defendant has no right, title or interest in respect of the same. There is nothing on record to infer that plaintiff sold the suit property to Smt. Usha Rani or consequently ever handed over the possession. The defendant further failed to prove that the possession was handed over as part performance of the agreement to sell to Smt. Usha Rani and defendant was permitted to use the suit property. Thus the only inference which can be drawn in view of the pleadings and evidence led is that the plaintiff No. 1 is the owner and the defendant has no right of CS No. 259/14 27/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. possession after termination of license vide notice Ex. PW 1/ 2. The plaintiff is therefore entitled for the possession as prayed in the suit. Issue No. I is thus decided in favour of the plaintiffs and against the defendant.
27. As observed, the plaintiff has prayed for decree of permanent injunction also for restraining the defendants, agents, servant etc from creating any third party interest in the same. As regards the relief of injunction, the injunction is a discretionary relief and its grant of refusal depends upon the circumstances and facts of a particular case. The discretion has to be reasonable guided by judicial principles and law. It must not be arbitrary, vague and fanciful. Section 41 of the Specific Relief Act enumerates the cases where an injunction will be denied. Sub Section (h) of section 41 mention that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust the injunction cannot be granted. Sub Section (i) mention regarding refusal of injunction when the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the court. Section 38 of the Specific Relief Act enables the court to grant a perpetual injunction to prevent the breach of an obligation existing in favour of applicant whether express or implied. Meaningly the question is to be examined as to whether there exists an obligation in favour of the applicant and thereafter if the answer is yes, if the case falls within section 41 of the Act, an injunction cannot be granted. It is also necessary to mention CS No. 259/14 28/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. that rights and obligation are corollary to each other and the right places a corresponding duty also for its existence.
28. As held in JT 1994 (6) SC 588 , interest of right not shown to be in existence cannot be protected by injunction. Issuance of order of an injunction is absolutely discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41 (j) of the Specific Relief Act, 1963 and the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence cannot be protected by injunction.
29. The plaintiff has prayed for restraining the defendant, agents, attorneys etc. from creating any third party interest in the suit property. It is the case of the defendant that Smt. Usha Rani purchased the suit property from the plaintiff. As mentioned the defendant failed to prove such facts. As the defendant has no right, title or interest in the suit property, the plaintiff is entitled for grant of injunction as prayed in the suit. The defendant, their agents, assigns, associates are restrained from creating any third party interest or parting with possession of the suit property.
ISSUE No. II to IV: (II) Whether the plaintiff is entitled for decree of Rs. CS No. 259/14 29/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. 1,44,000/ towards damages as prayed in the suit? OPP (III) Whether the plaintiff is entitled for decree of Rs. 72,000/ towards mesne profits alongwith interest as prayed in the suit? OPP (IV) Whether the plaintiff is entitled for damages/mesne profits @ Rs. 6,000/ PM as prayed for? OPP
30. The onus to prove these issues was on the plaintiff. As all these issues are interconnected, these issues are examined and adjudicated together. As observed, the plaintiff has claimed for decree of Rs. 1,44,000/ for user and occupation charges @ Rs. 4,000/ per month and decree of Rs. 72,000/ as mesne profits @ Rs. 2,000/ per month from the period 01.12.10 to 01.12.13 alongwith interest. In total, the plaintiff has prayed for damages / mesne profits @ Rs. 6,000/ per month from the defendant. It is further noted that license of defendant was terminated vide legal notice Ex. PW 1/ 2 dt. 24.09.09. The plaintiffs has filed this suit on 09.12.13 and has claimed the mesne profits / damages from the period 01.12.10 to 01.12.13 alongwith pendentelite and future damages.
31. In the case of Arya Orphanage Vs. Mr. Alfred G Wuerfel reported in MANU/DE/2446/2008, CS (OS) No. 2439/2001 decided on 27.11.2008, the Hon'ble High Court of Delhi was pleased to hold that mesne profits are to be determined on account wrongful continuation of occupation after termination CS No. 259/14 30/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. of tenancy / license and the same should be computed at the rate which the property might have fetched at the relevant time.
In the case of M.C. Aggarawal Vs. Sahara India and Ors. reported in 183 (2011)DLT 105, the Hon'ble High Court of Delhi was pleased to reiterate the same principle and held that while claiming damages / mesne profits, a plaintiff has to prove the market rate of rent of similar properties in the locality.
32. The plaintiff has prayed for the damages/mesne profits @ Rs. 6000/ per month from the defendant from 01.12.10 to 01.12.13 for using/enjoying the suit property unauthorizedly. In the present matter, the plaintiff has not led any specific evidence in respect of the same. Plaintiff has simply pleaded and deposed that he was entitled to damages at the rate of Rs. 6000/ per month. Hence, in the absence of any specific evidence regarding this aspect, it cannot be taken that the plaintiff is entitled to damages at the said rate. However, in the case of M.C. Aggarawal Vs. Sahara India (Supra), the Hon'ble High Court has been pleased to hold that in such circumstances, the court could take resort to the provisions of Section 57 and 114 of the Indian Evidence Act and grant appropriate relief. In the present matter, the suit property consists of one room measuring 10 x 11 feet as shown in red colour in site plan attached with the plaint Ex. PW 1/1. The suit property is being used for residential purpose. In the opinion of this Court, prayer for damages / mesne profits at the rate of CS No. 259/14 31/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. Rs.6000/ per month in respect of suit property is neither reasonable nor justified. I am, therefore, inclined to grant damages / use and occupation charges to the plaintiff at the rate of Rs. 2,000/ per month.
33. In respect of the period to which the plaintiff is entitled to mesne profits/ damages, plaintiff has prayed for mesne profits from 01.12.10 to 01.12.13 after termination of the license. Thus, plaintiff will be entitled to damages at the rate of Rs. 2,000/ per month from 01.12.10 till the date of gaining possession of the suit property. In respect of the claim towards interest on mesne profits, the Hon'ble High Court of Delhi in the case of Arya Orphanage (supra) was pleased to hold that interest is an integral part of mesne profits and therefore the same has to be allowed in the computation of mesne profits itself. Plaintiff would thus be entitled to grant of interest on mesne profits. I, therefore, grant interest to the plaintiff at the rate of 8% per annum on the mesne profits so granted from 01.12.10 till the date of gaining possession. These issues i.e. issue No. II to IV are accordingly disposed off in favour of the plaintiffs and against the defendant.
Relief:
34. In view of the aforesaid discussions and findings, this court is of the considered opinion that plaintiffs have proved their case and therefore, they are entitled for the following relief:
(i) The suit of the plaintiff is decreed qua relief of possession in CS No. 259/14 32/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. favour of the plaintiffs and against the defendants regarding property i.e. one room in property No. C1/181, West Dayalpur, Pusta Road, Karawal Nagar, Delhi94 as shown in red colour in the site plan Ex. PW 1/1.
(ii) Decree of permanent injunction is passed in favour of the plaintiffs and against the defendant and the defendant, attorneys, representative, agents etc. are restrained from selling, transferring, alienating or creating third party interest in the suit property i.e. one room in property No. C1/181, West Dayalpur, Pusta Road, Karawal Nagar, Delhi94 as shown in red colour in the site plan Ex. PW 1/1except without due process of law.
(iii) The plaintiff is entitled for the decree of damages/mesne profits against the defendant @ Rs. 2,000/ per month from 01.12.10 till handing over the possession of the suit property.
(iv) The plaintiff is also entitled for cost of the suit.
35. Decree sheet be drawn accordingly after payment of deficient court fee.
36. File be consigned to record room after necessary compliance. Announced in open Court on this 13th day of October, 2015 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 259/14 33/33 Harpal Singh Tomar & Ors V/s Dinesh Panwar