Delhi District Court
Memo Of Parties vs Smt. Manju on 20 January, 2016
IN THE COURT OF Sh. DEEPAK SHERAWAT, CIVIL JUDGE10
(CENTRAL)/DELHI
SUIT NO. 559/08
Unique ID No. 02401C1132452008
MEMO OF PARTIES
Sh. Raj Kumar Thakkar
S/o. Sh. Hansraj
R/o. 79/2, Govind Puri, Kalka Ji,
New Delhi 110019
......Plaintiff
Versus
1. Smt. Manju
D/o. Turu Ram,
R/o. 1247/6, Gali No. 13, Gobind Puri, New Delhi.
2. Sh. Sonu
S/o. Turu Ram,
R/o. 1247/6, Gali No. 13, Gobind Puri, New Delhi
3. Smt. Saroj
W/o. Turu Ram,
R/o. 1247/6, Gali No. 13, Gobind Puri, New Delhi
.......Defendants
Date of institution of Suit: 27.08.2008
Date on which judgment was reserved: 14.01.2016
Date of pronouncement of Judgment: 20.01.2016
SUIT FOR RESTORATION OF POSSESSION ALONG WITH MESNE
PROFIT
Suit no. 559/08 Raj Kumar Thakkar Vs. Smt. Manju 1/ 16
JUDGMENT
1. In the present suit, the plaintiff has sought the relief of possession and mesne profits against the defendants.
2. It is the case of the plaintiff that he purchased the suit property bearing no. 1247/6, Gali no. 13, Govind Puri, New Delhi from his Maternal Grand Mother Smt. Ram Dati on 01.05.1998 for a consideration of Rs. 1,45,000/ by General Power of Attorney, Agreement to Sell and a registered Will. Smt. Ram Datti purchased the suit property from one Sh. Radha Ballbh Sharma on the basis of General Power of Attorney and Agreement to Sell. The son of Smt. Ram Dati namely Jagdish Kumar was married to one Ms. Pinki and due to certain differences, they separated without any divorce. The marriage between Sh. Jagdish and Ms. Pinki took place on 27.01.1989. After separation from his wife, Sh. Jagdish became frustrated and his mother Smt. Ram Dati allowed him to run a Dhaba and Tea Stall in the shop on the ground floor of the suit property. Later on, Sh. Jagdish developed illicit relations with the defendant no. 1 and children were born to them. Sh. Jagdish expired on 11.12.1993 in a road accident and Smt. Ram Dati transfered the suit property to the plaintiff who is son of her daughter. Smt. Ram Dati remained admitted in the hospital for a considerable time and the suit property remained locked. In the month of April, 1999 the plaintiff along with Smt. Ram Dati visited the suit property and found that locks were broken and the defendant no. 1 along with her brother Sonu was in unauthorized occupation of the suit property. The defendant no. 1 Suit no. 559/08 Raj Kumar Thakkar Vs. Smt. Manju 2/ 16 threatened to murder the plaintiff and Smt. Ram Datti and cross cases were registered against both the parties. On 11.03.2008 the plaintiff sent a legal notice to the defendant no. 1 calling upon her to vacate the suit property.
3. In their joint written statement, the defendants have denied the allegations of the plaintiff and stated in the preliminary objections that property was purchased by husband of the defendant no. 1 no. 1 namely Sh. Jagdish Kumar from Sh. Radha Ballabh Sharma in the name of his mother Smt. Ram Datti for his own use and he was in possession of the suit property since the time of its purchase and was running a small Dhaba on the ground floor. It is further stated that, in the year 1994, Sh. Jagdish constructed one room on the first floor of the suit property. It is further stated that the defendant no. 1 no. 1 is legally married wife of Sh. Jagdish and their marriage was solemnized on 28.01.1993 and since then she is living in the suit property. It is further stated that out of the marriage two children were born. It is further stated that, Sh. Jagdish died in the road accident on 11.12.2014 and thereafter the defendant no. 1 no. 1 and her two sons are in possession of the suit property. It is further stated that original documents of the suit property are in possession of Smt. Ram Dati. It is further stated that, none of the documents relied upon by the plaintiff is registered and the plaintiff has also failed to value the suit property correctly. In their reply on merits, the defendant no. 1 has stated that the allegations of the plaintiff are wrong and it is stated that the defendant no. 1 had filed a Civil Suit no. 238/97 for injunction against Smt. Ram Datti and her Legal Representative which was decreed in her favour on 24.05.2002.
Suit no. 559/08 Raj Kumar Thakkar Vs. Smt. Manju 3/ 16
4. The plaintiff has also filed the replication denying the averments in the written statement and reaffirming the contents of the plaint.
5. On the basis of the pleadings, the following issues were framed:
i. Whether the plaintiff is entitled to decree of possession of the suit property as shown in the site plan? OPP ii. Whether the plaintiff is entitled to mesne profits @ Rs. 2,000/ from the date of the filing of the suit till the date of recovery of possession? OPP iii. Whether the suit property is self earned property of the husband of the defendant no. 1 no. 1? OPD iv. Whether the defendant no. 1 no. 1 entitled to possession of suit property due to adverse possession? OPD v. Relief.
6. Both the plaintiff and the defendant no. 1 produced evidence in support of their case. Plaintiff has examined himself and Smt. Ram Datti respectively as PW2 and PW1. PW1 in her affidavit of evidence has deposed that she sold the suit property to the plaintiff on 01.05.1998 of Rs. 1,45,000/ by executing General Power of Attorney and Agreement to Sell. She has further deposed that she purchased the property from Sh. Radha Ballabh Sharma on 27.03.1992 on the basis of General Power of Attorney and Agreement to Sell. She has deposed that she also executed a Will and the plaintiff was in possession of the suit property from May, 1998 onwards. She has reaffirmed the averments made by the plaintiff in the plaint. PW2 who is plaintiff has reiterated and supported the claim made by him in the plaint. Both of them Suit no. 559/08 Raj Kumar Thakkar Vs. Smt. Manju 4/ 16 have been cross examined on behalf of the defendant no. 1.
7. The defendant no. 1 no. 1 has examined herself as the only witness from the side of the defendant no. 1s. She has appeared as DW1 and reiterated and reaffirmed the defence put forward in the joint written statement. She has been cross examining on behalf of the plaintiff.
8. The counsels for the plaintiff and the defendant no. 1s have advanced final arguments. I have heard the arguments and perused the record.
9. My issuewise findings are as follows:
ISSUE NO. 1
Whether the plaintiff is entitled to decree of possession of the suit property as shown in the site plan? OPP
10. The onus to prove this issue was on the plaintiff. Plaintiff in his testimony as PW2 has deposed that he purchased the suit property from PW1 on the basis of agreement to sell, GPA and Will for a consideration of Rs. 1,45,000/. However, the plaintiff has not proved these documents according to the provisions of the Indian Evidence Act. In the first place, the plaintiff has not brought on record the agreement to sell executed by PW1 in his favour. The only document placed on record are the General Power of Attorney executed by PW1 in favour of the plaintiff which has been proved as Ex.PW2/1, another GPA and agreement to sell executed by erstwhile owner of Sh. Radha Ballabh Sharma in favour of PW1 which are respectively Ex.PW1/2 and Ex.PW2/3. A receipt in the name of erstwhile owner Sh. Radha Ballabh Sharma issued by Delhi Vidyut Board is also exhibited as Ex.PW2/4. The defendant had raised Suit no. 559/08 Raj Kumar Thakkar Vs. Smt. Manju 5/ 16 objections at the time of tendering of these documents as exhibits on the ground that the said documents are not proved according to the law because author of these documents have not been examined or testified to the effect that these documents were executed by them. The objection is fairly reasonable as well as sustainable. A document has to be proved by the person who executes the same or in the event of his nonavailability due to some reasons, the document has to be proved by resorting to other provisions of law. In the present suit, Ex.PW2/1 is a General Power of Attorney which was executed by PW1 in favour of the plaintiff in respect of the suit property and consequently PW1 was the right person to have deposed about the execution of the GPA and not PW2 namely the plaintiff who in this case has sought to prove the GPA in his testimony. Again, Ex.PW2/2 is a General Power of Attorney executed by Sh. Radha Ballabh, the former owner of the suit property, in favour of PW1and as such PW2, the plaintiff cannot prove this document not being a party to the same. Ex.PW2/3, the agreement to sell whereby Sh. Radha Ballabh purchased the suit property, also, cannot be proved by PW2 for the similar reason. Ex.PW2/4, the receipt issued by DVB to PW1 remains unproved because no witness from the DVB has been examined. Even PW1 has not deposed anything about the issue of this receipt.
11. However, the GPA executed by PW1 in favour of the plaintiff has also been relied upon by the defendant and the same has been proved by the defendant as Ex.DX. Resultantly, the said GPA is admissible in evidence. Thus, apart from the said GPA, no other document has been proved according Suit no. 559/08 Raj Kumar Thakkar Vs. Smt. Manju 6/ 16 to the mode provided in law. It is a settled law that mere marking of a document as exhibit does not dispense with the proof of document. Similar view has been expressed in "Sait Tarajee Khimchand Vs. Yelamarti Satyam, AIR 1971 SC 1865" and Sudhir Engineering Company Vs. Nitco Roadways Ltd. 1995 (34) DRJ 86. Any document must be proved in terms of the condition provided under Section 67 of the Indian Evidence Act which lays down that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in the handwriting of that person must be proved to be in his handwriting. Thus, apart from the GPA Ex.DX, no other document produced by the plaintiff can be read in evidence.
12. The claim of the plaintiff cannot be said to be substantiated solely on the basis of the said GPA which does not say that the suit property has been sold by PW1 to the plaintiff. So far as the Ex.DX i.e. the GPA is concerned, it is a wellsettled position in law that a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property, though the attorney holder is entitled to execute a deed of conveyance in exercise of the power granted under the Power of Attorney and convey title on behalf of the grantor. In Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana 2009 (7) SCC 360, (2012) 1 SCC 656 and Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana (2012) 1 SCC 656, the Hon'ble Supreme Court has held out a strict view against such mode of transfer of immovable property and declared all the transactions transferring the immovable property on the basis of Suit no. 559/08 Raj Kumar Thakkar Vs. Smt. Manju 7/ 16 GPA/agreement to sale/Will as illegal. In the latter case, such transactions have only been allowed to continue to be treated as existing agreement to sell to enable the affected parties to obtain registered deeds of conveyance to complete their title. In the present case, the plaintiff has not become the owner of the suit property in the absence of any registered deed of conveyance. The plaintiff has not even brought on record the agreement to sell to show that he is entitled to get a registered sale deed executed by PW1. The GPA Ex.DX does not confer any right upon the plaintiff to institute any suit against the defendant to recover the possession.
13. It is pertinent to note that PW1, in her evidence, has admitted the fact that she has sold the suit property to the plaintiff on 01.05.1998 for a total consideration of Rs. 1,45,000/ by GPA, agreement to sell and a Will. However, the testimony of PW1 is not sufficient to prove the sale transaction between her and the plaintiff. The admission of the PW1 that she has sold the suit property to the plaintiff cannot take place of proof in the present case because the sale transaction of suit property can only operate after complying with certain legal requirements. As per the mandate given U/s. 54 of the Transfer Property Act, sale in case of an immovable property of the value of one hundred rupees and upwards can be made only by a registered instrument. Further, such instrument is also compulsorily registrable under the provision of Section 17 of the Indian Registration Act. The consequences of nonregistration of such instrument have been provided U/s. 49 of the Registration Act which lays down that such instrument or document shall not affect any immovable property Suit no. 559/08 Raj Kumar Thakkar Vs. Smt. Manju 8/ 16 comprised therein or be received in evidence of any transaction affecting such property. Apparently, the admission of PW2 in her testimony cannot dispense with the formal proof of the sale transaction because the same can be effected only by a registered sale deed.
14. The plaintiff has also relied on the Will executed by the PW1 in respect of the suit property in his favour which has been proved as Ex.DX1. However, the Will can operate only after the death of the PW1 and during her life time, the Will cannot come into force and vest the plaintiff with any right or title in the suit property.
15. Nonetheless, there is no doubt about the title of PW1 in the suit property. The defendant in her written statement has specifically admitted this fact that the suit property was purchased in the name of PW1 by her deceased husband. A contention has been put forth on behalf of the defendant that the admission cannot be considered disjunctively from the other averments made in the written statement. In the written statement, the defendant has alleged that though the suit property was purchased in the name of PW1, the entire consideration amount was paid by her deceased husband and he purchased the suit property for his own use and purpose. The contention on behalf of the defendant has no merits.
16. The pleadings and the evidence of the defendant no. 1 suggests that the nature of the transaction, presuming that the suit property was purchased in the name of the PW1 with the funds of deceased husband of the defendant no. 1, was that of a Benami Transaction as defined under Section 2 (a) of the Suit no. 559/08 Raj Kumar Thakkar Vs. Smt. Manju 9/ 16 Benami Transactions (Prohibition) Act, 1988 and such transaction is not only prohibited but the right of the real owner to recover such property is also barred. A benami transaction is prohibited U/s. 3 of the Benami Transactions (Prohibition) Act, 1988 which lays down that no person shall enter into any Benami Transaction. The only exception provided under this provision is a transaction regarding the purchase of the property in the name of one's wife or unmarried daughter. Section 4 of the said Act, even bars any suit or action to enforce any right in respect of any property held Benami against the person in whose name the property held or against other person by a person claiming to be the real owner of such property.
17. Since as per the defence put forth by the defendant no. 1, the consideration of the suit property was paid by the deceased husband of the defendant no. 1 and the same was purchased in the name of the PW1 who is mother of the deceased husband of the defendant no. 1, the transaction is hit by the embargo contained in the Section 3 of the Benami Transactions (Prohibition) Act, 1988 and the defendant is precluded from claiming any right in the suit property.
18. When all is said and done, the PW1 is proved to be owner of the suit property, but the plaintiff has not been able to show his right or title in the suit property. Thus, the plaintiff has no cause of action to recover possession from the defendant.
Therefore, this issue is decided in favour of the defendant and against the plaintiff.
Suit no. 559/08 Raj Kumar Thakkar Vs. Smt. Manju 10/ 16 ISSUE NO. 2 Whether the plaintiff is entitled to mesne profits @ Rs. 2,000/ from the date of the filing of the suit till the date of recovery of possession? OPP
19. The onus to prove this issue was on the plaintiff. The possession of the defendant cannot be termed as wrongful against the plaintiff because he has no right or title in the suit property and he also does not have any cause of action to bring the present suit against the defendant. The plaintiff is not entitled to any mesne profits.
Therefore, this issue is decided in favour of the defendant and against the plaintiff.
ISSUE NO. 3
Whether the suit property is self earned property of the husband of the defendant? OPD
20. The onus to prove this issue was on the defendant. However, apart from the testimony of the defendant no. 1, there is no other evidence, oral or documentary, to prove that the consideration amount was paid by the husband of the defendant. Besides, the issue is also not relevant in view of the fact that the such transaction, as discussed above, is prohibited U/s. 3 of the Benami Transactions (Prohibition) Act, 1988.
Therefore, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 4
Whether the defendants are entitled to possession of suit property due to adverse possession? OPD Suit no. 559/08 Raj Kumar Thakkar Vs. Smt. Manju 11/ 16
21. The onus to prove this issue was on the defendant. The legal position is that the burden of proof lies on the party claiming adverse possession and such party must plead and prove that his possession was adverse to the true owner and was peaceful, open and continuous. Such possession must be adequate, in continuity, in publicity and in extent to show that the possession is adverse to the true owner.
22. The law on adverse possession is contained in the Indian Limitation Act. Article, 65, Schedule 1 of the Limitation Act prescribes a limitation of 12 years for a suit for possession of immovable property or any interest therein based on title. It is important to note that the starting point of limitation of 12 years is counted from the point of time "when the possession of the defendants becomes adverse to the plaintiff". Article 65 is an independent article applicable to all suits for possession of immovable property based on title i.e. proprietary title as distinct from possessory title. Article 64 governs suits for possession based on possessory right. 12 years from the date of dispossession is the starting point of limitation under Article 64. Article 65 as well as Article 64 shall be read with Section 27 which bears the heading "Extinguishment of right to property". It lays down:
"At the determination of the period hereby limited to any person for instituting the suit for possession of any property, his right to such property shall be extinguished."
That means, where a cause of action exists to file a suit for possession and if the suit is not filed within the period of limitation prescribed, then, not only the Suit no. 559/08 Raj Kumar Thakkar Vs. Smt. Manju 12/ 16 period of limitation comes to an end, but the right based on title or possession, as the case may be, will be extinguished. The section assists the person in possession to acquire prescriptive title by adverse possession.
23. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by Hon'ble Supreme Court in Karnataka Board of Wakf Vs. Govt. of India and Others { (2004) 10 SCC 779} in the following terms: "Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show:
a) On what date he came into possession,
b) What was the nature of his possession,
c) whether the factum of possession was known to the other party,
d) How long his possession has continued, and
e) his possession was open and undisturbed
24. In the present case, the defendants have taken the plea of adverse possession in para 6 of preliminary issues of the written statement by stating that defendant no. 1 is in possession of the suit property since 1993 and the plaintiff has not challenged her possession in any Civil Court thereby vesting the defendant no. 1 with ownership in the suit property. The defendants have failed to plead the necessary facts to make their possession adverse to the plaintiff. A perusal of the written statement shows that the necessary and vital Suit no. 559/08 Raj Kumar Thakkar Vs. Smt. Manju 13/ 16 pleadings are missing in the written statement with regard to the claim of the defendant of perfecting their title by adverse possession. The necessary pleadings such as from what date the defendants came into possession, when possession became adverse, when they perfected their title by adverse possession, when they pleaded hostile titled to the knowledge of the true owner etc. have not been made in the written statement. In T. Anajanappa & Ors Vs. Somalingappa & Anr. {(2006) 7 SCC 570}, it was observed that mere possession however long does not necessarily mean that it is adverse to the true owner and adverse possession really means the hostile possession which is expressly or impliedly in denial of the title of true owner. The defendant no. 1, in the present suit, has averred that the suit property was purchased by her deceased husband in the year 1992 and he used the same for running a tea stall and the marriage of the defendant no. 1 with him took place in the year 1993. The husband of the defendant no. 1 died in the year 1996. It is not the case of the defendant that before his death her husband ever set up hostile the title in the suit property against PW1. Nor is there any pleading or evidence on behalf of the defendants that they at any point of time asserted their title to the suit property against PW1. Mere peaceful possession of the defendants in the suit property, for however long a period, cannot be termed as adverse to the title of PW1. The plaintiff has claimed to have purchased the suit property from PW1 on 01.05.1998 and the defendants cannot in any way be said to have perfected their title in the suit property against him by adverse possession. Otherwise also, before the death of the husband of the defendant no. 1, the Suit no. 559/08 Raj Kumar Thakkar Vs. Smt. Manju 14/ 16 defendants had no independent right in the suit property. The husband, as per the claim of the defendants, died in a road accident on 11.12.1996 and the independent possession of the defendant if it was so, started from 11.12.1996. The present suit has been filed on 28.08.2008 which is within the prescribed period of 12 years for a suit for possession whether based on title or possession. The alternative plea of adverse possession can be taken by the defendants if they forsake their plea of inheriting title through the husband of the defendant no. 1. In that event, the possession of the deceased husband of the defendant no. 1 becomes that of a licensee since the possession of the suit property was given to him by PW1 for running a teastall and the license came to en end on the death of the husband of the defendant no. 1 on 11.12.1996, from which date the adverse possession can only be claimed by the defendants. However, as stated above, if the limitation period is reckoned from 11.12.1996, the suit has been filed within the stipulated period of 12 years before the defendants could have perfected their title by way of adverse possession.
25. It is alleged by the defendants that the suit no. 238/97 for injunction was instituted by the defendant no. 1 in respect of the suit property and the certified copies of the pleadings and court orders have been proved by the defendant no. 1 in her evidence as Ex.DW1/N. However, this fact does not help the defendant in proving their plea of adverse possession against the plaintiff. Firstly, neither the plaintiff nor the PW1 was party to the said suit. Secondly, the period of 12 years which is requisite for adverse possession is also not Suit no. 559/08 Raj Kumar Thakkar Vs. Smt. Manju 15/ 16 completed from the date of institution of the said suit. In the result, the defendants have failed to substantiate their plea of adverse possession. Therefore, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 5
RELIEF
26. In view of the decision on issue nos. 1 & 2, the suit of the plaintiff is dismissed. No order as to costs.
Announced in the open Court (DEEPAK SHERAWAT)
On 20.01.2016 CJ10 (Central)/Delhi
Suit no. 559/08 Raj Kumar Thakkar Vs. Smt. Manju 16/ 16
20.01.2016 Suit no. 559/08
Present: None.
Vide separate judgment of even date, the suit of the plaintiff is dismissed. No order as to costs.
Decree Sheet be prepared accordingly.
File be consigned to Record Room.
DEEPAK SHERAWAT
Civil Judge 10 (Central)/THC
Delhi/20.01.2016
Suit no. 559/08 Raj Kumar Thakkar Vs. Smt. Manju 17/ 16