Delhi High Court
Sh. Ashwani Kumar vs Smt. Sukh Devi & Ors. on 22 August, 2014
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRP No.19/2014
% 22nd August, 2014
SH. ASHWANI KUMAR ......Petitioner
Through: Mr. Avinash Lakhanpal, Advocate.
VERSUS
SMT. SUKH DEVI & ORS. ...... Respondents
Through: Mr. Dilip Singh, Advocate for
respondent Nos.1 to 5.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.3481/2014 (condonation of delay)
1. For the reasons stated in the application, delay of 50 days in filing the petition is condoned.
C.M. stands disposed of.
+ C.R.P. No.19/2014 and C.M.No.3479/2014 (stay)
2. This revision petition under Section 115 of the Code of Civil Procedure 1908 (CPC) impugns the order of the trial court dated 19.9.2013 CRP No.19/2014 Page 1 of 5 by which the trial court has rejected the application filed by the petitioner/applicant under Order 1 Rule 10 of the Code of Civil Procedure, 1908 (CPC) for his being added as a defendant in the suit.
3. The subject suit is a suit for declaration, mandatory and permanent injunction which has been filed by five plaintiffs and who are respondent nos.1 to 5 in this petition. The subject suit was filed by respondent nos.1 to 5 against the respondent nos.6 and 7 herein who are the defendant nos.1 and 2 in the suit. Defendant no.3 in the suit is the sub- Registrar.
4. Disputes pertain to the property measuring one bigha out of khasra no.47/5, village Saffipur, Ranhaula, Delhi (known as Shiv Dharamkanta). Plaintiffs/respondent nos. 1 to 5 as also defendant no.1/respondent no.6 were the legal heirs of late Sh. Dharamvir Malik. As per the case in the plaint, defendant no.1/respondent no.6 was guilty of murdering his father Sh. Dharamvir Malik and he was prosecuted and convicted and sentenced to life imprisonment with a further fine of Rs.1 lakh by the court of sessions. Respondent nos.1 to 5/plaintiffs claim that they are therefore the owners of the suit property.
CRP No.19/2014 Page 2 of 5
5. The petitioner/applicant claims to have purchased rights in the suit property by an unregistered agreement to sell dated 10.7.2012 from defendant no.1/respondent no.6. Petitioner/applicant also relies upon the Local Commissioner's report dated 5.8.2013 prepared pursuant to the order passed by the trial court on 1.8.2013 which observes that both the parties are in joint possession of the suit property. It is therefore argued on behalf of the petitioner/applicant that since the petitioner/applicant is in joint possession alongwith the respondent nos.1 to 5, the applicant/petitioner is a necessary party to the suit.
6. Section 53A of the Transfer of Property Act, 1882 was amended by Act 48 of 2001 w.e.f 24.9.2001. The amendment was brought about by the Registration and Other Related laws (Amendment) Act, 2001. As a result of the amendment, an agreement to sell cannot be relied upon to claim part performance and entitlement to possession unless the agreement to sell is registered and stamped at 90% of the value of the sale deed. This aspect is noted in para 21 of the impugned order dated 19.9.2013 by which the application of the petitioner/applicant under Order 1 Rule 10 CPC has been dismissed and which para 21 reads as under:-
CRP No.19/2014 Page 3 of 5
"21. It is a fact that this Court is conscious about the fact that Earnest money Receipt-cum-Agreement is not a registered document. Section 17(1A) of Indian Registration Act provides that the documents containing contract to transfer for consideration any immovable property for the purposes of Section 53-A of Transfer of Property Act shall be registered if they have been executed on or after the commencement of Registration and Other Related laws (Amendment) Act 2001 and if such documents are not registered on or after such commencement then they shall have no effect for the purposes of said Section 53-A of Transfer of Property Act. However, this Court is not giving any opinion, at this stage, on the document Earnest money Receipt-cum-Agreement in this case."
7. In view of the above, it is clear that the applicant/petitioner cannot claim any rights whatsoever on the basis of the alleged unregistered and inadequately stamped agreement to sell dated 10.7.2012. I may also note that the payment under the alleged agreement to sell dated 10.7.2012 is in cash and not by cheque, thus leading to a grave doubt even with respect to the existence and validity of the agreement itself.
8. Since the petitioner/applicant cannot claim any rights on the basis of the agreement to sell dated 10.7.2012 and since the agreement to sell dated 10.7.2012 is the only basis for the applicant/petitioner to claim rights in the suit property, consequently once the agreement to sell dated 10.7.2012 itself is void and illegal, the petitioner/applicant would have no rights in the suit property, and once the petitioner/applicant has no rights in the suit property, hence he has no right to be impleaded as a party to the suit. CRP No.19/2014 Page 4 of 5
9. The petition therefore being wholly misconceived, the same is dismissed with costs of Rs.25,000/-. Costs be paid within six weeks.
VALMIKI J. MEHTA, J AUGUST 22, 2014 Ne CRP No.19/2014 Page 5 of 5