Delhi District Court
Sh. Ravinder Kumar Gaur vs Sh. Surender Kumar Singh on 13 April, 2015
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
CS No. 474/14
Case I.D. Number : 02402C0414232014
IN THE MATTER OF :
Sh. Ravinder Kumar Gaur
S/o Late Sh. Gopeshwar Dutt Gaur
R/o C133, Gali No. 7, Nehru Vihar,
Delhi94. ........ Plaintiff
V E R S U S
Sh. Surender Kumar Singh
S/o Sh. Virender Singh
R/o H. No. 4, Gali No. 2,
Block E5, 5th Pusta, ( Near Hardan Public School)
Sonia Vihar, Delhi94 .......Defendant
Date of Institution of suit : 22.12.2014
Arguments heard on : 09.04.2015
Date of Judgment/Order :13.04.2015
Decision : Suit is dismissed
CS No. 474/14 1/23
Ravinder Kumar Gaur Vs. Surender Kumar Singh
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
SUIT FOR POSSESSION, ARREARS OF RENT/DAMAGES &
PERMANENT INJUNCTION
J U D G M E N T
1. Vide this judgment, I shall dispose off the present suit for possession ,
arrears of rent/ damages & permanent injunction filed by the plaintiff against
the defendant in respect of property bearing H. No. 4, Gali No. 2, BlockE5,
5th Pusta ( Near Hardan Public School), Sonia Vihar, Delhi94 ( hereinafter
called the suit property) as shown in the red color in the site plan.
2. Brief facts as stated in the plaint is that the plaintiff is the owner/land
lord of the suit property measuring 60 sq. yards consisting ground and first
floor and inducted the defendant as tenant at monthly rent of Rs. 24,000/
excluding electricity and water charges w.e.f. 12.03.2012 vide rent agreement
dated12.03.2012. The defendant defaulted in making the payment and fails to
pay the arrears of rent w.e.f. 01.01.2013 and threatened to sublet the suit
property. The tenancy was terminated vide legal notice dated 29.09.14 but the
defendant failed to hand over the possession and also failed to pay the arrears
of rent. Hence, this suit is filed by the plaintiff against the defendant praying
for decree of possession, arrears of rent w.e.f. 12.01.2013 till 12.01.2014
amounting to Rs. 2,40,000/ @ Rs. 24,000/ per month and damages @ Rs.
24,000/ per month thereafter from the date of the filing of this suit till
CS No. 474/14 2/23
Ravinder Kumar Gaur Vs. Surender Kumar Singh
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
recovery of the possession.
3. The defendant was duly served with the summons of the suit and as
none appeared for the defendant despite service through affixation, he was
proceeded ex parte vide order dated 09.02.2015 and the case was thereafter
fixed for ex parte evidence.
4. Plaintiff filed his affidavit by way of evidence Ex. PW1/A and deposed
regarding the case 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 Ex. PW1/1, Rent Agreement
Ex. PW1/2, GPA, Agreement to Sell, Affidavit, Will, Receipt and Possession
Letter Ex. PW1/3 to Ex. PW1/8 ( OSR), copy of GPA, Agreement to Sell,
Receipt, Will Ex. PW1/9 to Ex. PW1/12, Copy of GPA, Agreement to Sell,
Receipt, Will Ex. PW1/13 to Ex. PW1/16, Copy of Registered GPA,
Agreement and Receipt Ex. PW1/17 to Ex. PW1/19, Copy of Registered GPA
Ex. PW1/20, Photocopy of Electricity Bill Ex. PW1/21, Legal Notice Ex.
PW1/22 and Postal Receipt Ex. PW1/23. As no other witness was examined/
remained to be examined by the plaintiff, the PE was closed.
5. I have heard the Ld. Counsel for the plaintiff. It is argued by the
counsel for plaintiff that the case of the plaintiff is duly proved as the
testimony of the witnesses examined on behalf of the plaintiff remained un
rebutted and plaintiff has discharged the onus. The learned counsel for the
CS No. 474/14 3/23
Ravinder Kumar Gaur Vs. Surender Kumar Singh
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
plaintiff prayed to decree the suit in favour of plaintiff against the defendant.
6. I have considered the contentions and perused the relevant materials on
records.
7. 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 in the form of plaint and
written statement and the nucleus of the case of the plaintiff and the
contesting case of the defendants in the form of issues emerges out of that.
Being a civil suit, this suit is to be decided on the basis of preponderance of
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
as under:
"A civil case is decided on balance of probabilities. The
balance of probabilities in the present case shows that the
Power of Attorney Ex. PW3/1 and the Will Ex. P1 were duly
executed by the deceased Sh. Sohan Singh. The Power of
Attorney is after all a registered Power of Attorney, and more
importantly, the original title documents of the subject
property are in the possession of the respondent No. 1 and
which would not have been, if there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one CS No. 474/14 4/23 Ravinder Kumar Gaur Vs. Surender Kumar Singh Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants but to the respondent No. 1 her father inlaw Sh. Sewa Singh, if the impugned judgment is set aside."
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 visa vis 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".
In the cases of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, it has been held that a civil case is to be decided on balance CS No. 474/14 5/23 Ravinder Kumar Gaur Vs. Surender Kumar Singh Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
of probabilities
8. Section 101 of the Evidence Act, 1872 defines " burden of proof"
which is reproduced as below: " 101. Burden of proof whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been liable to discharge his burden. Until he arrives at such conclusion he cannot proceed on the basis of weakness of other party.
9. The plaintiff claimed the defendant to be the tenant. The plaintiff further claimed to be the owner/landlord of the suit property but nothing is mentioned in the plaint as to how and from whom the suit property was purchased by the plaintiff. The documents relied by the plaintiff itself shows that the plaintiff is relying upon the documents and claiming title through the defendant. The plaintiff claims to have purchase the suit property on the basis of the documents Ex. PW 1/ 3 to. Ex. PW1/8 as detailed above. As per the CS No. 474/14 6/23 Ravinder Kumar Gaur Vs. Surender Kumar Singh Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. plaintiff, the defendant is in possession of the suit property and was inducted as tenant. The plaintiff has filed this suit praying for decree of possession, mesne profits/ damages and decree of permanent injunction to restrain the defendant from creating any third party interest in the suit property.
10. The evidence of the plaintiff was somehow on the similar lines as contended in the plaint. It appears that the main issue to be adjudicated remained as to whether the plaintiff can be considered as the owner of the suit property on the basis of the documents Ex.PW 1/ 3 to PW 1/8 relied by him. ? This issue appears mainly issue of law.
11. It is appropriate and relevant to note the relevant legal provisions and authorities for proper examination and adjudication of the aspect of ownership of the plaintiff as contended in the plaint.
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 CS No. 474/14 7/23 Ravinder Kumar Gaur Vs. Surender Kumar Singh Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
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 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 CS No. 474/14 8/23 Ravinder Kumar Gaur Vs. Surender Kumar Singh Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
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 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: CS No. 474/14 9/23 Ravinder Kumar Gaur Vs. Surender Kumar Singh Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
" 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;
(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.
12. 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 CS No. 474/14 10/23 Ravinder Kumar Gaur Vs. Surender Kumar Singh Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. admissible as evidence of any transaction of acting any immovable property comprise therein and do not affect any such immovable property.
13. 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 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.
14. 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) in this respect as held, the documents of title relied upon by the plaintiff such as Ex. PW 1/ 2 to Ex. PW1/6 i.e. GPA , Agreement to Sell, Will, receipt and possession letter in her CS No. 474/14 11/23 Ravinder Kumar Gaur Vs. Surender Kumar Singh Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. favour would not confer ownership rights in respect of immovable property in her 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 ill affects 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:
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 CS No. 474/14 12/23 Ravinder Kumar Gaur Vs. Surender Kumar Singh Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
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 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 CS No. 474/14 13/23 Ravinder Kumar Gaur Vs. Surender Kumar Singh Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
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 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 CS No. 474/14 14/23 Ravinder Kumar Gaur Vs. Surender Kumar Singh Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. 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 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 CS No. 474/14 15/23 Ravinder Kumar Gaur Vs. Surender Kumar Singh Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
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 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 CS No. 474/14 16/23 Ravinder Kumar Gaur Vs. Surender Kumar Singh Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
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 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 CS No. 474/14 17/23 Ravinder Kumar Gaur Vs. Surender Kumar Singh Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. sales.
15. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Hon'ble Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance ( para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872( para 13) and devolution of interest pursuant to a will( para 14).The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of 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.
16. Section 63 (c) of the Succession Act 1925 requires a will to be CS No. 474/14 18/23 Ravinder Kumar Gaur Vs. Surender Kumar Singh Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. attested. Further the same cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution. In this regard the in the case of Gopal Swaroop v. Krishna Murari Mangal reported in (2010) 14 SCC 266 the Hon'ble Supreme Court was pleased to hold as under:
"17. A careful analysis of the provisions of Section 63 would show that the proof of execution of a will would require the following aspects to be proved:
(1) That the testator has signed or affixed his mark to the will or the will has been signed by some other person in the presence and under the direction of the testator.
(2) The signature or mark of the testator or the signature of the persons signing for him is so placed has to appear that the same was intended thereby to give effect to the writing as a will. (3) That the will has been attested by two or more witnesses each one of whom has signed or affixed his mark to the will or has been seen by some other person signing the will in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of the signature or mark or the signature of each other person.
(4) That each of the witnesses has signed the will in the presence of the testator."
CS No. 474/14 19/23
Ravinder Kumar Gaur Vs. Surender Kumar Singh Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
17. 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 that rights and obligation are corollary to each other and the right places a corresponding duty also for its existence.
18. 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 circumstances which affects the chargeability of duty on that instrument. CS No. 474/14 20/23 Ravinder Kumar Gaur Vs. Surender Kumar Singh Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. 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 plaintiff.
19. In the present case, plaintiff has claimed title on the basis of GPA, Agreement to Sell, Payment receipt, possession letter and the will but the execution of the documents not proved along with the execution of the will. The exception made out in re Suraj Lamps Industries Case ( Supra) is also not applicable in this case. The relevant witness is not produced by the plaintiff at all to prove the execution of this documents and merely filing of this documents on records is not sufficient to prove the same. None of these documents are registered. Even if these documents were executed in favour of CS No. 474/14 21/23 Ravinder Kumar Gaur Vs. Surender Kumar Singh Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. plaintiff, the same would not create any title in her favour. Since there is no registered sale deed executed in favour of the plaintiff in respect of the suit property in accordance with provisions of Transfer of Property Act, 1882, the plaintiff is not the owner of the suit premises and not entitled for the relief of possession as prayed in the suit.
20 It is reiterated that plaintiff has not placed on record any documents in support of her contentions regarding prayer of permanent injunction nor filed any documents on records that the defendant was permitted to use the premises as permissive user. Even the executor of the documents Ex. PW 1/ 3 to Ex. PW 1/ 20 is not produced before the court to prove the contentions of the plaintiff. None of the documents relied by the plaintiff are registered nor the plaintiff proved that the possession of the suit property was ever handed over to him and therefore neither Section 53 A of the Transfer of Property Act, 1882 nor Section 202 of the Contract Act, 1872 is applicable for ownership of the respondent. 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.
21. Admittedly the defendant is in possession of the suit property. The plaintiff allegedly derived the title through documents Ex. PW1/3 to PW 1/ 8. By no stretch of imagination by virtue of these documents, the plaintiff can be considered as the owner of the suit property having right, title or interest. CS No. 474/14 22/23 Ravinder Kumar Gaur Vs. Surender Kumar Singh Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
22. In view of the aforesaid discussions and referred law, this Court is of the considered view that the respondent cannot be considered having right, title or interest in the suit property. and the documents Ex. PW1/ 3 to Ex. PW 1/ 8 relied by the plaintiff is neither helpful nor sufficient to prove the claim of the plaintiff in the suit. Plaintiff is therefore not entitled for the decree of the possession, mesne profits/damages and permanent injunction as prayed in the suit.
Relief :
23. In view of aforesaid discussions and findings, this court is of the considered opinion that plaintiff has failed to prove his case. The plaintiff is not entitled for the relief as prayed in the suit and the suit is liable to be dismissed. This suit is accordingly dismissed. No order as to costs in the facts and circumstances of the case.
Decree sheet be drawn accordingly. File be consigned to record room. Announced in open Court on this 13th day of April, 2015 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 474/14 23/23 Ravinder Kumar Gaur Vs. Surender Kumar Singh