Delhi High Court
Prem Raj vs Babu Ram Gupta & Others on 3 September, 2012
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No. 2043/1989
% 3rd September, 2012
PREM RAJ ......Plaintiff
Through: Mr. V.P.Chaudhary, Sr. Adv. with Mr.
Mritunjay Chaudhary, Adv.
VERSUS
BABU RAM GUPTA & OTHERS ..... Defendants
Through: Mr. Dinesh Kumar Gupta and Mr. Vikas
Mishra, Adv. for D-4 and D-9.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The subject suit has been filed by the plaintiff for declaration and possession with respect to the plot bearing no. 5, Block No. 60, W.E.A. Ramjas Road, Karol Bagh, New Delhi, admeasuring 569 sq. yards (hereinafter the suit property). The plaintiff claims various reliefs of declarations and possession qua the suit property effectively to get cancelled the sale deed dated 3.9.1983 executed in favour of the defendant nos. 1 and 2 by the defendant no.3 as the power of attorney holder of the plaintiff, and the subsequent sale deed dated 6.8.1984 executed by the defendant nos. 1 and 2 in favour of defendant no.4. Mesne profits are also claimed. CS(OS) 2043/1989 Page 1 of 15 Presently the owner of the property is defendant No.9 under the sale deed dated 14.9.2006 executed by the defendant No.4.
2. Though there are a total of nine reliefs which are claimed in the plaint, in sum and substance what the plaintiff seeks is cancellation of all documents whereby ownership of the suit property is vested presently with the defendant no.9 and for revesting of the same with the plaintiff. It is not disputed between the parties that defendant no.9 is as on date claiming ownership of the suit property under a registered sale deed dated 14.9.2006. This document will also have to be cancelled in case the plaintiff has to be granted reliefs in the present suit, though such a relief is not claimed in the suit plaint.
3. Before proceeding ahead I must note that the original plaintiff in the suit one Sh. Prem Raj who had entered into two Agreements to Sell dated 9.2.1981 (Ex.P-
2) and 14.4.1981 (Ex. PW1/D5) with the defendant nos. 1 and 2 with respect to the suit property, died during the pendency of the suit and his legal heirs have been brought on record. Some of the legal heirs have further died and legal heirs of such legal heirs have also been brought on record. For the sake of convenience reference in this judgment to the plaintiff would mean to the original plaintiff, and wherever the context so requires then to his legal heirs.
4. The facts of the case are that the plaintiff was the perpetual lessee of the suit property under a lease deed executed in his favour by the Delhi CS(OS) 2043/1989 Page 2 of 15 Improvement Trust on 27.08.1943. As per the plaint (and which has been amended about four times) what the plaintiff states is that plaintiff had entered into two Agreements to Sell dated 9.2.1981 and 14.4.1981, Ex. P-2 and Ex.PW1/D5, with the defendant Nos. 1 & 2 for a total consideration of ` 95,000/- of which ` 85,000/- is said to have been received as per the plaint, though now before me it is admitted that the entire consideration has been received by the plaintiff. The plaintiff had also executed two Power of Attorneys. First is a Special Power of Attorney dated 14.04.1981 (Ex. D-4/4) in favour of the defendant No. 3 (wife of defendant No.1) for making necessary applications with all the Governmental Authorities; and the second General Power of Attorney (Ex. D4/5) of the same date (which is a registered Power of Attorney) entitles the defendant No.3 to act on behalf of the plaintiff in any and every manner with respect to the suit property. As per the plaint, the said two power of attorneys have been cancelled by the plaintiff by means of a registered notice dated 17.02.1983. There are further averments in the amended plaint with respect to the transaction encompassed in the Agreements to Sell dated 09.02.1981 and 14.04.1981 being void and unenforceable in law because of the provisions of the Urban Land (Ceiling and Regulations) Act, 1976 (hereinafter the 'ULCR Act'). There are further averments in the plaint that the sale deeds which have been registered in favour of defendant Nos. 1 & 2, acting through the plaintiff's power of attorney holder defendant no.3, are void as CS(OS) 2043/1989 Page 3 of 15 no permission was also obtained from the Income Tax Authority. In view of the aforesaid facts plaintiff seeks the recovery of possession and cancellation of the documents being the chain of sale deeds by which originally the defendant Nos. 1 & 2 became the owners, thereafter defendant No. 4 became the owner and presently the defendant No. 9 is the owner.
5. In this suit written statements have been filed jointly on behalf defendant Nos. 1 to 3. A separate written statement was filed by the defendant No.
4. Pursuant to amendment being allowed to the plaintiff and amended plaint filed, additional written statement was filed by the defendant No. 4. Replications have been filed by the plaintiff to the written statements. Defendant No. 9 has adopted the written statement which has been filed by the defendant No. 4. In his written statement the defendant No. 4 has pleaded that the plaintiff transferred complete rights in the plot by means of Agreement to Sell dated 09.02.1981 and 14.04.1981. It is pleaded that complete consideration of `95,000/- was received by the plaintiff. It is further pleaded that on the basis of valid registered Power of Attorney dated 14.04.1981 executed in favour of defendant No. 3, permissions were applied for from the Governmental Authorities and thereafter sale deed dated 03.09.1983 (Ex. P-3) was executed in favour of defendant Nos. 1 & 2, and followed by a sale deed dated 06.08.1984 (Ex. P-4) executed by the defendant No. 1 & 2 in favour of defendant No. 4. The sale deed by which the suit property CS(OS) 2043/1989 Page 4 of 15 presently vests with the defendant No. 9 is dated 14.09.2006 (Ex. DW-1/1). The defendants have denied that they have forged any permission from the Income Tax Authority. Application of the provisions of the ULCR Act is denied.
6. On the pleadings of the parties, the following issues were framed in this case on 12.03.2007:
1. Whether the suit of the plaintiffs is within limitation? OPP
2. Whether the suit has been valued properly for the purpose of jurisdiction and court fee affixed on the plaint in accordance with law? OPP
3. Whether the suit of the plaintiffs is barred by the provisions of Order 23 & Order 2 Rule 1 of the Contract Act? OPP
4. Whether the sale deed dated 3rd September, 1983 executed by Late Shri Prem Raj Chaudhary in favour of the defendant Nos. 1 & 2 is null and void and illegal for the reasons stated in the plaint? If so, to what effect? OPP
5. Whether the sale deed dated 6th August, 1984 executed by the defendant nos. 1 & 23 in favour of the defendant no. 4, is null and void? If so, to what effect? OPP
6. If the foregoing issues are decided in favour of the plaintiffs then whether the plaintiffs are entitled to possession of the suit property from defendant no. 4? OPP
7. Whether the plaintiffs are entitled to the relief of mesne profit?
If so, for what period, at what rate and from whom? OPP
8. Whether the plaintiffs are entitled to a relief of declaration, as prayed for? OPP CS(OS) 2043/1989 Page 5 of 15
7. Issue Nos. 1 to 3 are not pressed on behalf of the defendants and, therefore, are decided in favour of the plaintiff.
Issue Nos.4 to 8
8. Main issues are issue Nos. 4 to 8 as to entitlement of the plaintiff for cancellation of the chain of sale deeds as also other declarations and thereby seeking revesting of the suit property in the plaintiff and the possession of the suit property being granted to the plaintiff.
9. The learned senior counsel appearing for the plaintiff has very vehemently contended that the suit property in fact is not a constructed property but only a piece of plot, and, being only a plot land, the same was subject to the provision of Section 26 and other related provisions of the ULCR Act, and since a fraud is sought to be played upon the authorities under the ULCR Act by means of entering into the subject Agreements to Sell dated 09.02.1981 and 14.04.1981 showing the property as built up, the transaction in question is illegal and void. It is further argued that since the defendants have failed to prove any permission being granted under Section 26 of the ULCR Act, there could not be a valid transfer in favour of defendant Nos. 1 & 2, and thereafter to the defendant No. 4, and finally to the defendant No. 9.
10. In order to appreciate these issues, one admitted fact which has to be noted is that the size of the suit plot is 569 sq. yds. i.e. less than 500 sq. mtrs. In CS(OS) 2043/1989 Page 6 of 15 terms of provisions of Section 4 of the ULCR Act, a vacant land i.e. land which is not constructed upon would fall foul of the Act only when it is in excess of the ceiling limit of 500 sq. mtrs. The question is that even if the land does not fall beyond the ceiling limit prescribed under the Act, can it be urged that yet the agreements to sell and the subsequent sale deeds thereupon fall foul of the provisions of Sections 26 and 28 of the ULCR Act. In my opinion, for the following reasons, the arguments urged in this regard on behalf of the plaintiff are wholly misconceived and liable to be rejected:-
(i) The onus of proving that the sale deeds executed in favour of defendant Nos.1 and 2, and defendant No.4, were registered without permissions being obtained under ULCR Act was squarely on the plaintiff. Once there are registered sale deeds then as per illustration (e) of Section 114 of Evidence Act, 1872 there is a presumption that the sale deeds would have been validly registered inasmuch as under Section 28 of the ULCR Act the registering authority cannot register the sale deed without the requisite permissions. The plaintiff has failed to file any document or show from the record of ULCR Act authorities that permission was not obtained. The mere fact that the ULCR Act records qua the suit property are destroyed cannot mean that it must be held that no permission was there. Reliance by the plaintiff on the photocopy of letter dated 18.4.1983 is misplaced, as this is not an exhibited document and is only marked 'A', and since CS(OS) 2043/1989 Page 7 of 15 it is not proved it cannot be relied upon. Even if this letter can be relied upon it cannot mean that it is proved that permission by ULCR Act authorities was refused as this letter is of April, 1983 but the sale deeds in favour of defendant Nos.1 & 2 and defendant No.4 are dated 3.9.1983 and 6.8.1984, i.e. later, and therefore permissions could have been and would be of later dates than 18.4.1983. This would have been known from ULCR Act authorities but unfortunately the records do not exist, however, this will go against the plaintiff and not against the defendants, more so as the onus was on the plaintiff.
(ii) If there is any entitlement of anybody to dispute the transfer of title in the suit land, the entitlement and locus would only be of the Government acting through the authorities under the ULCR Act. If there is no action by the appropriate authorities under the ULCR Act, in seeking to cancel the chain of title deeds, and acquire the suit property, it is not open to the plaintiff to urge, substituting himself as if he were the Governmental Authorities for urging that the chain of title deeds are void because of alleged violation of the provisions of ULCR Act. I hold that the plaintiff has no locus standi (more so after having taken benefit of agreements to sell and receiving entire consideration) to urge that the Agreements to sell and the Power of Attorneys could not transfer rights in the suit land in favour of firstly the defendant Nos. 1 and 2 then the defendant No. 4 and CS(OS) 2043/1989 Page 8 of 15 presently to the defendant No. 9. Of course by the time sale deed in 2006 was executed in favour of defendant No.9, the ULCR Act had been repealed.
(iii) Any controversy remaining as to any alleged invalidity of the sale deeds as of today is reduced to naught inasmuch admittedly the ULCR Act stands repealed w.e.f. 22.03.1999. Once the Act is not on the statute book as on the date of passing of the present judgment, it cannot be said that the provisions of the said ULCR Act can still be relied upon on behalf of the plaintiff to urge invalidity of the agreements to sell and the sale deeds executed on the basis of the same.
(iv) An agreement which is against law is not necessarily illegal and void.
In certain case a person can waive the application of the law in his favour. Such application of law is waived by the plaintiff in this case as he has acted under the Agreements for his benefit. In such circumstances, the agreement is not a void agreement. Reference in this behalf is invited to the judgment of the Supreme Court in the case of Martin & Harris Ltd. Vs. VIth Additional District Judge & ors AIR 1998 (1) SCC 732. It is the plaintiff who received benefit/consideration under the subject Agreements to sell dated 09.02.1981 and 14.04.1981, and therefore plaintiff can be said to have waived the right of any illegality of these agreements on account of violation of the provisions of the ULCR Act. The plaintiff cannot be allowed to blow hot and cold at the same time i.e. he took benefit of the Agreements and now he cannot argue otherwise. CS(OS) 2043/1989 Page 9 of 15
(v) The Constitution Bench of the Supreme Court in the judgment reported as Maharao Sahib Shri Bhim Singh Ji Vs. Union of India & Ors. 1981 (1) SCC 166 has held that the provision of sub-section 2 of Section 27 of the Act is invalid so far as it seeks to vacate the citizen's right to dispose of its urban property if the land falls within the ceiling limits. The provision of Section 27(1) of the ULCR Act was struck down as it was held that citizen under Article 19(1) (f) has the fundamental right to hold property. Though this Constitutional Bench judgment only strikes down the provision of Section 27(1), a reference to the judgment given by Hon'ble Mr. Justice Sen shows that if a vacant land owned by a person falls within the ceiling limits of an urban agglomeration, then such person is outside the purview of Section 3 of the Act and such a person is not governed by the provisions of the Act. Therefore, since the suit property is below the ceiling limit of 500 sq. mtrs., the ULCR Act cannot apply to the property in question.
At this stage, I must refer to a related argument urged on behalf of the plaintiff that even the power of attorneys (though the same mention that they are irrevocable and the general power of attorney (Ex. D-4/5) is a registered document), yet, the same cannot be looked into by virtue of the provisions of the ULCR Act. I have already dealt with the lack of any substance in the argument for seeking cancellation of the Agreements to Sell and the consequent sale deeds in the aforesaid paragraphs and said conclusions will also equally apply with respect to CS(OS) 2043/1989 Page 10 of 15 the two power of attorneys i.e. Special Power of Attorney dated 14.04.1981 (Ex.D- 4/4) and the General Power of Attorney (registered) dated 14.04.1981 (Ex. D-4/5). I may also add that the Hon'ble Supreme Court in the recent judgments of Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana and Anr. 183 (2011) DLT 1(SC) (para 13) has protected rights which are created under a power of attorney given for consideration. In the present case, it is undisputed that the power of attorneys were given for consideration and I note that during the course of the argument it is not disputed that the entire sale consideration under the Agreements to Sell dated 09.02.1981 and the power of attorney dated 14.04.1981 i.e. a total sum of ` 95,000/- stands received by the plaintiff. If we refer to the illustration given in Section 202 of the Contract Act, 1872, and which deals with irrevocability of a General Power of Attorney given for consideration, it is seen that a power of attorney given for consideration in fact is valid even after death of the person executing the power of attorney.
11. I therefore, hold that the power of attorneys do fall foul of the provisions of ULCR Act, and in fact, they could not have been sought to be cancelled as was endeavoured to be done by the plaintiff by sending the legal notice dated 17.2.1983.
CS(OS) 2043/1989 Page 11 of 15
12. Accordingly, I hold that the Agreements to Sell dated 9.2.1981 and 14.4.1981, Special Power of Attorney and General Power of Attorney (registered) dated 14.4.1981 and the Sale Deeds dated 3.9.1983 (in favour of defendant nos.1 and 2), 6.8.1984 ( in favour of defendant no. 4) and 14.9.2006 (in favour of defendant no.9) are not illegal or void on account of alleged violations of the provisions of ULCR Act and which in any case stand repealed as on date and whose provisions therefore cannot apply to urge any rights on such basis as on today.
13. So far as the arguments urged on behalf of the plaintiff that the sale deeds executed in favour of defendant nos. 1 and 2 dated 3.9.1983 and defendant no.4 dated 6.8.1984 would be void as the necessary permission was not obtained from the Income Tax Authorities, and such permission was in fact forged and fabricated, all I have to say is that the sale deed dated 3.9.1983 is a duly registered sale deed and therefore in terms of illustration (e) of Section 114 of the Evidence Act, 1872, official acts are deemed to be properly performed i.e the registering authority would have seen the income tax clearance certificate before registration of the sale deeds dated 3.9.1983 and 6.08.1984. Once there is a presumption in favour of the defendant nos. 1 and 2, it was upon the plaintiff to rebut this presumption by leading evidence, however, no positive evidence has come on record that no permissions were given by the Income Tax Authority for execution CS(OS) 2043/1989 Page 12 of 15 of the sale deed in favour of defendant nos. 1 and 2 and defendant No.4. Of course, the plaintiff did make effort to summon the records of the Income Tax Authority, and such record could not be produced as they are said to have been lost/destroyed, however, that cannot mean that the plaintiff would have discharged the onus and it should necessarily be held that no permission was granted by the Income Tax Authority. I must in this regard refer to the special power of attorney Ex.D-4/4 dated 14.4.1981 as per which it is specifically and only for the defendant no.3 to deal with the various Governmental Authorities including the Income Tax Authority for obtaining the appropriate permissions (In fact, in my opinion, this special power of attorney was not required inasmuch as the registered General Power of Attorney Ex.D-4/5 specifically provides in the last clause that the attorney/ defendant no. 3 is fully competent to do every act and deed which is necessary for the purpose of transfer of suit plot/property in favour of defendant nos. 1 and 2). Obviously, therefore, defendant no.3 would have applied for and got permission from the Income Tax Authority acting as an attorney holder for the plaintiff. I, therefore, hold that it cannot be argued by the plaintiff that the sale deeds dated 3.9.1983 and 6.8.1984 must fall as no permissions were obtained from the Income Tax Authority.
14. Accordingly, issue nos. 4 to 8 are decided against the plaintiff and in favour of defendants and it is held that the plaintiff is not entitled to possession of CS(OS) 2043/1989 Page 13 of 15 the suit property or for cancellation of the sale deeds or for any mesne profits. Plaintiff is also not entitled to the declarations as prayed for in view of the aforesaid discussion.
15. One point which was very strenuously argued on behalf of the plaintiff was that since the defendant no.3 was proceeded ex parte and she was to explain the stated alleged suspicious circumstances of obtaining of permissions of ULCR and Income Tax Authorities, and therefore, adverse inference be drawn against the defendant no.3. In my opinion, this argument is an argument of desperation because defendant no.3 is the wife of defendant no.1, and a duly registered power of attorney holder of the plaintiff, and the two power of attornies have already been proved and exhibited in this suit as Ex.D-4/4 and Ex.D-4/5, and therefore, appearance and non-appearance of defendant no.3 is inconsequential, more so as the written statement has been filed jointly by defendant nos. 1 to 3. RELIEF:-
16. In view of the above, the suit of the plaintiff is dismissed. Considering the facts of the present case where the plaintiff in spite of having received the entire sale consideration of the suit property from the defendant Nos.1 and 2, is harassing the defendants by taking up only legal and technical pleas (in fact the record of this case shows that the plaintiff had also initiated various other litigations against the defendants and most of which have been dismissed or CS(OS) 2043/1989 Page 14 of 15 withdrawn) and by initiating present wholly malicious/dishonest litigation, I exercise my discretion under Rule 14 of the Delhi High Court (Original Side) Rules, 1967 to exempt the applicability of rules on the aspect of costs in the present case, and apply the ratio of the recent judgment of the Supreme Court in the case of Ramrameshwari Devi and Others v. Nirmala Devi and Others, (2011) 8 SCC 249 which holds that it is high time that actual costs be imposed moreso when dishonesty is apparent. I therefore award actual costs to the defendants while dismissing the suit. Let the contesting defendants file affidavits within a period of two weeks from today of the costs which have been incurred by these defendants towards payment to their lawyers. The certificates of the lawyers of having actually received the fees must also be attached with the affidavits showing making of payments of fees to the lawyers for the present suit. Such costs will be the costs awarded against the plaintiff and in favour of the defendants in the present suit. Suit is dismissed and disposed of accordingly. Decree sheet be prepared.
SEPTEMBER 03, 2012 VALMIKI J. MEHTA, J
ib
CS(OS) 2043/1989 Page 15 of 15