Delhi High Court
Rajan Singh vs Ms. Roshan on 12 February, 2020
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 12th February, 2020.
+ CS(OS) 603/2019 & IAs No.16365/2019 (u/O XXXIX R-1&2
CPC), 1686/2020 & 1696/2020 (both u/O VI R-17 CPC)
RAJAN SINGH ..... Plaintiff
Through: Mr. Ashok Gurnani with Mr. Manish
Aggarwal & Ms. Runul Rastogi,
Advs.
Versus
ROSHAN ..... Defendant
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. On 22nd November, 2019 when this suit came up first before this
Court, the following order was passed;
"3. The plaintiff has instituted this suit for declaration of his
ownership on the basis of General Power of Attorney, Will,
Agreement to Sell and Affidavit of possession, of a piece of land
ad measuring 1150 sq. yds. in Khasra No.409, situated at Abul
Fazal Enclave Part-II, Shaheen Bagh, New Delhi and for
permanent injunction to restrain the defendant from disturbing
the possession of the plaintiff of the said plot.
4. I have enquired from the counsel for the plaintiff, how the
plaintiff, on the basis of unregistered document, be declared as
owner.
5. The counsel for the plaintiff states that the documents are
of 1987 and the land is situated in an unauthorised colony
registrations with respect to transfers wherein are not done.
6. The same would not still make the plaintiff the owner of
the land.
CS(OS) 603/2019 Page 1 of 10
7. The counsel for the plaintiff seeks adjournment.
8. The plaintiff though has valued the suit for the purpose of
court fees and jurisdiction at Rs.3 crores, to institute the suit in
this Court, but the suit insofar as for the purpose of injunction
is valued at Rs.130/- only and thus, once the relief of
declaration is not maintainable in law, the relief if any of
injunction will have to be claimed in the Court of the Civil
Judge, Delhi.
9. I may in this context also mention that in terms of the
dicta of the Supreme Court in Anathula Sudhakar Vs. P. Buchi
Reddy (2008) 4 SCC 594 an inquiry of title cannot be in a suit
for injunction simplicitor and without an inquiry into title it will
not be possible to grant any injunction also, especially in view
of the pleadings of the plaintiff, of the defendant having illegally
grabbed the land and wherefrom it appears that it is the
defendant and not the plaintiff who is presently in possession of
the land.
10. The plaintiff to consider all the said aspects also.
11. Subject to the plaintiff depositing costs of Rs.10,000/-
with the Delhi High Court Advocates Welfare Trust, list on 6th
December, 2019."
2. The plaintiff first filed IA No.17229/2019 under Order VI Rule 17 of
the Code of Civil Procedure, 1908 (CPC) which was allowed on 20 th
December, 2019. On consideration of the amended plaint, on 7 th January,
2020, the following order was passed:
"1. The amended plaint has been perused and it is found that
the questions raised and recorded in the order dated 27th
November, 2019 remain. The plaintiff cannot be granted relief
of declaration of ownership on the basis of Agreement to Sell,
CS(OS) 603/2019 Page 2 of 10
Power of Attorney, will and affidavit of possession and the
valuation of the suit is also composite for the reliefs of
declaration and permanent injunction and once the suit for
declaration is not maintainable, the plaint has to be rejected.
2. The counsel for the plaintiff states that the dicta of the
Supreme Court in Suraj Lamps and Industries Pvt. Ltd. Vs.
State of Haryana (2009) 7 SCC 363 and (2012) 1 SCC 656
poses a problem for agreement purchasers with possession in
part performance and who, for diverse reasons, may be unable
to sue for specific performance.
3. Even if persons like the plaintiff are in any difficulty, they
having opted to enter into an agreement with respect to land in
unauthorised colonies which have come up over public land,
are not entitled to any relief from the Court.
4. The counsel for the plaintiff states that the colony can be
unauthorised not only for the reason of being on public land but
also for the reason of being on agricultural land.
5. The same, in my view, would not make any difference.
Even if the colony is on agricultural land, use thereof for non-
agricultural purpose would itself lead to vesting of the land in
the Gram Sabha and for this reason also, the plaintiff would not
be entitled to any relief. Moreover, this is a matter of public
records, whether the subject unauthorised colony is on
agricultural land or on public land.
6. The counsel for the plaintiff seeks time to consider.
7. List on 22nd January, 2020."
3. The plaintiff thereafter filed IA No.1686/2020 for amendment of the
plaint which came up before this Court on 22nd January, 2020, when the
CS(OS) 603/2019 Page 3 of 10
counsel for the plaintiff stated that he was further revaluating the matter. On
request, the suit was adjourned to 6th February, 2020.
4. On 6th February, 2020, when the suit was listed before this Court, yet
another application for amendment of the plaint, being IA No.1696/2020
was for consideration.
5. On 6th February, 2020, both the applications for amendment were
considered and the counsel heard thereon and after substantive hearing, on
request of counsel for the plaintiff, the hearing adjourned to today.
6. On 6th February, 2020, it was found that the amendments sought in
the applications did not still answer the query, how the plaintiff, claiming to
be merely an agreement purchaser under an unregistered agreement to sell,
could seek the relief of declaration of ownership of the property.
7. The counsel for the plaintiff on 6th February, 2020 stated that I may
re-consider/review my dicta in Bishan Chand Vs. Ved Prakash 2018 SCC
OnLine Del 11408 holding that Suraj Lamps and Industries Pvt. Ltd. Vs.
State of Haryana (2009) 7 SCC 363 and (2012) 1 SCC 656 is retrospective
in operation. Again, the difficulties faced by purchasers of properties/parts
of the properties under unregistered Agreement to Sell, Power of Attorney,
Will, Receipt, Letter of Possession etc. were cited, to contend that the Courts
have to find a solution to protect the rights of such persons.
8. The counsel for the plaintiff has today drawn attention to the National
Capital Territory of Delhi (Recognition of Property Rights of Residents
in Unauthorized Colonies) Act, 2019 notified on 12th December, 2019, and
has taken me through Section 3 thereof which is as under:-
CS(OS) 603/2019 Page 4 of 10
"3.(1) Notwithstanding anything contained in the Indian Stamp
Act, 1899 and the Registration Act, 1908 as applicable to the
National Capital Territory of Delhi or any rules or regulations
or bye-laws made thereunder and the judgment of the Supreme
Court in the case of Suraj Lamp & Industries (P) Ltd. Vs. State
of Haryana & others, dated the 11th October, 2011, the Central
Government may, by notification in the Official Gazette,
regularise the transactions of immovable properties based on
the latest Power of Attorney, Agreement to Sale, Will,
possession letter and other documents including documents
evidencing payment of consideration for conferring or
recognising right of ownership or transfer or mortgage in
regard to an immovable property in favour of a resident of an
unauthorised colony.
(2) The Central Government may, by notification published in
the Official Gazette, fix charges on payment of which
transactions of immovable properties based on the latest Power
of Attorney, Agreement to Sale, Will, possession letter and other
documents including documents evidencing payment of
consideration for conferring or recognising right of ownership
or transfer or mortgage in regard to an immovable property in
favour of a resident of an unauthorised colony through a
conveyance deed or authorisation slip, as the case may be.
(3) Notwithstanding anything contained in Section 27 of the
Indian Stamp Act, 1899, the stamp duty and registration
charges shall be payable on the amount mentioned in the
conveyance deed or authorisation slip, as the case may be.
(4) Any resident of an unauthorised colony having registered or
un-registered or notarised Power of Attorney, Agreement to
Sale, Will, possession letter and other documents including
documents evidencing payment of consideration shall be
eligible for right of ownership or transfer or mortgage through
CS(OS) 603/2019 Page 5 of 10
a conveyance deed or authorisation slip, as the case, may be, on
payment of charges referred to in sub-section (2).
(5) No stamp duty and registration charges shall be payable on
any previous sale transactions made prior to any transaction
referred to in sub-section (4).
(6) The tenants, licensees or permissive users shall not be
considered for conferring or recognising any property rights
under this Act."
9. The counsel for the plaintiff has contended that the said legislation,
recently promulgated, is for the benefit of people such as the plaintiff and
should be given full effect.
10. However a bare perusal of Section 3 supra would show that the same
only empowers the Central Government to confer or recognise title on the
basis of Power of Attorney, Agreement to Sale, possession letter and other
documents including documents evidencing payment of consideration but
does not by itself confer or create or recognise title on the basis of such
documents. Admittedly the Central Government till date has not recognised
the title claimed by the plaintiff, for this Court to declare the plaintiff as
owner on the basis of such recognition or conferment. In fact, on such
recognition or conferment if any, there would be no need for the plaintiff to
seek declaration of title as owner, in this suit. Thus, in my view, the
plaintiff on the basis of the said legislation also is not entitled to maintain
the suit for declaration of ownership on the basis of Agreement to Sale,
General Power of Attorney, Will, affidavit of possession, etc.
CS(OS) 603/2019 Page 6 of 10
11. The counsel for the plaintiff has contended that the promulgation of
the legislation aforesaid indicates the intent of the Government to so confer
title and before the Government has had an occasion to exercise power
under the said legislation, if this suit of the plaintiff is dismissed, the
plaintiff would suffer injury.
12. This Court cannot entertain suits for reliefs, for which cause of action
in law is not available today, and on the ground that the same may be
available in future. Maintainability of the suit in law, has to be seen on the
date when the suit comes up for admission and as per the prevalent law, the
suit for relief of declaration of ownership is not maintainable in law as of
today. The question of the plaintiff suffering any injury or prejudice also
does not arise as the cause of action if any accruing in future, would be
unaffected by any adjudication today.
13. The counsel for the plaintiff then contends that though the Division
Bench of this Court in Zubair Ul Abidin [DR.] Vs. Sameena Abidin @
Sameena Khan 214 (2014) DLT 340 (DB) has held that the plaint can be
rejected in part but the view in Shri Satya Pal Gupta Vs. Sh. Sudhir Kumar
Gupta 2016 (230) DLT 73 (DB), Sejal Glass Ltd. Vs. Navilan Merchants
Pvt. Ltd. 2018(11) SCC 780 and Roop Lal Sathi Vs. Nachhattar Singh Gill
1982(3) SCC 487 is to the contrary and which judgments suggest that there
can be no rejection of the plaint in part. It is thus contended that the reliefs
claimed in the suit, being of declaration of ownership as well as of
permanent injunction to restrain the defendant from interfering with the
possession of the plaintiff of the property and/or from dealing with the
property, the plaint cannot be rejected qua the relief of declaration only and
CS(OS) 603/2019 Page 7 of 10
not qua the relief of permanent injunction and has to be entertained in
entirety.
14. I am unable to agree. Even in Zubair Ul Abidin supra, the judgments
including in Roop Lal Sathi supra, holding the rejection in part of the plaint
being impermissible, were considered and it was held that the said principle
cannot compel trial of claims which are barred by or unsustainable in law
and segregable from other claims. Here, the relief claimed of declaration of
title as owner is segregable from the relief claimed of permanent injunction
against forcible dispossession and the cause of action for the two is distinct.
The cause of action for the relief of permanent injunction is settled
possession and threat to dispossess and the enquiry therein is limited to this
aspect. As already observed in order dated 22nd November, 2019
reproduced above, in a suit for permanent injunction simplicitor,
investigation into title is not required. Moreover, a plaintiff, merely by
clubbing an untenable relief with another, cannot be permitted to abuse the
process of the Court by forcing the Court to undertake a trial on something
which is required to be shut out/thrown out at the threshold. In Satyapal
Gupta supra, the Division Bench differed with the reasoning on merits for
rejection of part of the claim and in Sejal Glass Ltd. supra it was found on
pleadings that the plaint could not be proceeded in some part. Such is not
the case here.
15. I also do not find any ground to review or re-consider my decision in
Bishan Chand supra, that Suraj Lamps and Industries Pvt. Ltd. supra is
retrospective in operation. Rather, Suraj Lamps and Industries Pvt. Ltd.
supra itself in paragraph 26 records that it merely declares the law as
CS(OS) 603/2019 Page 8 of 10
existing and has not declared any new law. The counsel for the plaintiff has
also been unable to show any law under which the plaintiff, merely by
having an agreement to purchase of an immovable property in his favour,
can become the owner of the said immovable property.
16. Agreement purchasers do not have any right in the property/land
agreed to be purchased. The Court, as far back as in Jiwan Das Vs. Narain
Das AIR 1981 Del 291 held that an Agreement to Sell does not create any
right in the property to which it pertains and merely gives a right to the
agreement purchaser to seek specific performance thereof. It was further
held that no rights in immovable property are created, even on passing of
decree for specific performance and till in execution thereof a Sale Deed is
executed.
17. Thus, the suit, insofar as for the relief sought of declaration of
ownership on the basis of General Power of Attorney, Will, Agreement to
Sell and Affidavit of Possession, even post amendment sought, including by
way of the aforesaid two applications, does not lie and no suit therefor can
be entertained and/or set in motion.
18. The plaintiff, besides the relief of declaration has also sought the
relief of permanent injunction to restrain the defendant from interfering with
the possession of the plaintiff of the property and/or from dealing with the
property.
19. However the suit, as per paragraph 17 of the amended plaint dated 4 th
December, 2019 is valued jointly for the purposes of declaration and
permanent injunction at Rs.3 crores and no separate valuation as required in
law to be given for the relief of declaration and injunction, has been given.
CS(OS) 603/2019 Page 9 of 10
20. The counsel for the plaintiff states that the plaintiff undertakes to
value the suit above the minimum pecuniary jurisdiction of this Court,
separately for the relief of permanent injunction alone.
21. Axiomatically, the plaint, insofar as for the relief of declaration of
ownership of the plaintiff of land admeasuring 1150 sq.yds in Khasra
No.409, situated at Abul Fazal Enclave Part-II, Shaheen Bagh, New Delhi,
on the basis of Agreement to Sell, Power of Attorney, Will, affidavit of
possession, is rejected. The plaintiff is held entitled to maintain the suit only
for the relief of permanent injunction to restrain the defendant from
interfering and disturbing the possession claimed by the plaintiff of the
property and to restrain the defendant from dealing with or creating third
party rights in the property.
22. The plaintiff to thus file an amended plaint confined to the relief of
permanent injunction and pay appropriate court fees thereon.
23. IA No.1686/2020 and IA No.1696/2020 are disposed of
24. On request, list on 27th February, 2020.
RAJIV SAHAI ENDLAW, J.
FEBRUARY 12, 2020 'ak' CS(OS) 603/2019 Page 10 of 10