Delhi District Court
Yudhisther Sharma vs Om Prakash Sharma on 21 January, 2017
IN THE COURT OF DR. VIJAY KR DAHIYA:
ADJ07(Central)TIS HAZARI COURTS: DELHI
RCA NO. 61217/16
Yudhisther Sharma
S/o Late Johri Mal Sharma
R/o H. No. 16, Village DCM, Dasana,
Ghaziabad, UP.
Through General Power of Attorney
Shri Shiv Prakash
S/o Late Lakhi Chand
R/o 216, Rampura, Delhi35
.. PLAINTIFF/
APPELLANT
Versus
Om Prakash Sharma
S/o Late Hridey Sharma
R/o 1/6153, Gali no. 5,
Dev Nagar, New Delhi5
.. DEFENDANT/
RESPONDENT
DATE OF INSTITUTION : 26.02.2015
DATE OF ARGUMENTS : 21.01.2017
DATE OF JUDGMENT : 21.01.2017
JUDGMENT:
1. Vide this judgment I shall dispose of this appeal preferred against the impugned judgment and decree passed by Ld. Trial court whereby suit of the plaintiff/appellant has been dismissed.
2. For the sake of convenience, plaintiff/appellant and RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 1 of 23 defendant/respondent are referred to as plaintiff and defendant (as per their nomenclature) in the impugned judgment . Brief facts relevant for disposal of the present appeal is like this. That late Smt. Sarti Devi, mother of the plaintiff (hereinafter referred to as the deceased) was owner of the property bearing No. 483, Rampura, Delhi comprised in khasra No. 263, khata No. 404, khewat No. 131, Village Basai Darapur through sale deed dated 28.2.1962 (hereinafter referred to as the suit property) The plaintiff was the only son of his parents and his father Johri Mal Singh had predeceased the deceased therefore, the plaintiff being only child succeeded to the estate left behind by his mother. Plaintiff executed a registered GPA, Will, Agreement to sell and affidavit in favour of Shri Shiv Prakash whereby the said Shiv Prakash was authorised to deal with the suit property under the assurance of ratification and confirmation. The physical possession of the suit property was also handed over to said Shiv Prakash. Defendant claimed ownership over the suit property but never give sale document despite being asked for by the plaintiff and his attorney. 3 The said Shiv Prakash made a complaint to the police on RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 2 of 23 12.7.2004 and sought intervention of the police party. The SHO, Keshavpuram by misusing his official position and without going through the title document of said Shiv Prkash compelled Shiv Prakash to sign already written papers purported to be a compromise note. The defendant was put in possession of the suit property by dispossessing said Shiv Prakash forcibly and illegally at the behest of SHO and one Krishan Kumar Sharma, son of the defendant. The said Shiv Prakash was compelled to sign the agreement without going through the contents thereof under the immediate threat of illegal arrest and confinement. The said Shiv Prakash informed the plaintiff and plaintiff, in turn, informed him that defendant has no right, title or interest in the suit property. Legal notice dated 23.7.2004 was served upon the defendant as well as Sh. Krishan Kumar Sharma and SHO, PS Keshavpuram. Shri Kishan Kumar Sharma filed vague and evasive reply to the notice. Hence the plaintiff filed a suit for restoration of the possession of suit property and mesne profit. 4 The defendant filed a written statement stating therein that suit is barred by limitation. There is no cause of action in RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 3 of 23 favour of the plaintiff. The suit is bad for misjoinder of necessary parties as Shri Harshvardhan Sharma son of the defendant is owner of the suit property who has not been impleaded as party in terms of the Family Settlement dated 23.12.1995. The possession of the defendant is protected under the provisions of Section 53A of Transfer of Property Act in as much as the defendant is in possession of the suit property since 23.5.1980 in terms of the agreement to sell executed by Late Smt. Sarti Devi, mother of the plaintiff in favour of the defendant. The suit property was partly occupied by some of the tenants at the time of suit property was handed over by Smt. Sarti Devi to the defendant, therefore, defendant had litigated with one of the tenant and obtained eviction order. The plaintiff is not sole surviving legal heirs of late Smt. Sarti Devi as one Krishan Kumar and Santosh are other legal heirs of late Smt. Sarti Devi.
5 The factum of transfer of property in favour of the defendant by Smt. Sarti Devi was very much in the knowledge of the plaintiff during the life time of his mother and, thereafter, the plaintiff and his mother himself acknowledged RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 4 of 23 the defendants as owner of the suit property through acknowledgment letter. The tenants who were allegedly in possession of the suit property have either vacated the tenanted premises or handed over the possession to the defendant and the last tenant Sh. Ishwar Singh, who was in possession of a portion of the suit property has also handed over the possession thereof to the defendant in June 2004. Smt. Sarti Devi approached the defendant and proposed to dispose off the suit property to the defendant as she did not want to continue haggling with the old tenants, who had occupied certain portion of the suit property. Smt. Sarti Devi had handed over the zerox copies of the title documents of the previous owner of the suit property to the defendant. The plaintiff tried to dispossess the defendant but on account of intervention of the local police on 13.7.2007 the plaintiff failed in his attempt to illegally occupy the suit property.
6 The plaintiff filed the replication denying the assertions made in the written and reiterated the averments made in the plaint. The defendant was an old acquaintance of the father of the plaintiff was requested to lookafter the suit property as a RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 5 of 23 licencsee thereof as the father of the plaintiff has been transferred to Dasana, Ghaziabad, UP. The defendant started and managing the suit property as its ostensible owner. Defendant thereafter became greedy and forged and fabricated the documents in order to usurp the suit property. 7 On the pleadings of the parties, following issues were framed on 20.12.2005.
ISSUES
1. Whether the present suit is barred by limitation? OPD
2. Whether the present is bad for non joinder of necessary parties? OPD
3. Whether the present suit is barred by the principles of Estopel? OPD
4. Whether the present suit has been properly valued for the purposes of court fees and jurisdiction? OPD
5. Whether the plaintiff is entitled for the relief of possession as prayed for? OPP
6. Whether the plaintiff is entitled to the relief of mesne profit? If so at what and for what period? OPP
7. Relief.
8 Thereafter parties evidence and after conclusion of the argument, the Ld. Trial Court dismissed the suit. Feeling aggrieved by the impugned judgment, the plaintiff has filed the RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 6 of 23 present appeal.
9 It has been contended by Ld. Counsel for plaintiff that Ld. Court has not appreciated the facts in right prospective and erroneously held the suit being barred by limitation. The possession over the suit property of the defendant was interpreted in the year 2004 when attorney of the plaintiff happened to be in possession of the suit property and said attorney has been wrongly dispossessed. The respondent is not entitled for benefit of Section 53A of the Transfer of Property Act in as much as the sale agreement has not been proved by the respondent, which is writ large in the admission of DW2 who only testified that he identified the thumb impression of Smt. Sarti Devi on the agreement to sell. In addition to, it the said agreement appears to be attested on 14.5.1980 that is much prior to the execution of the said agreement on 23.5.1980. The defendant has no right, title or interest in the suit property. Plaintiff proved the title but he has been denied the possession without any reason.
10 The Trial Court has not appreciated the admission of the defendant in eviction petition ( EP No. 269/83) i.e. Ex. DW2/6 RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 7 of 23 whereby the defendant has admitted that he was not the owner of the suit property. Therefore, the Ld. Trial Court has wrongly appreciated the documents Ex. DW2/P1 i.e. affidavit produced by the defendant whereby all the original title documents of the suit property were given to the defendant which is contrary to the admission made by the defendant during her examination. 11 Per contra, the Ld. Counsel for the defendant has contended that defendant has become owner on the basis of doctrine of part performance in as much as the deceased had executed agreement to sell in respect of the suit property and handed over the possession of the property to the defendant on the same day. The defendant has never claimed title over the suit property by way of adverse possession as contended by the counsel for the plaintiff in this appeal. The suit is barred by limitation has been rightly held so by the Ld. Trial Court. There is no substance in the appeal and the same is deserve to be dismissed.
12 I have heard counsels for the parties and have perused the material available on record.
13 The first contention of the counsel for the plaintiff is that RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 8 of 23 suit has been erroneously held as barred by limitation and the defendant is not entitled to benefit of Section 53A of Transfer of Property Act and once the defendant has taken the defence of adverse possession he is not entitled to seek defence of the doctrine of part part performance of the contract. In this regard, reliance have been placed on record the following cases laws: (1) Rama Kant Jain vs. M S Jain passed by Delhi High Court on 24.03.1999 in Suit No.1740/1984 (2) D S Parvathamma vs. A. Srinivasan AIR 2003 SC 3542 (3) Aslam Parwez vs. Govt. of NCT of Delhi AIR 2003 SC 3547 (4) Illikkal Dewaswom vs. Narayanan Raghavan & anr.
AIR 1966 Kerala 96.
(5) Sardar Govindrao Mahadik & anr. vs. Devi Sahai & Ors. AIR 1982 SC 989 (6) Anil Yadav vs. The State of Bihar AIR 1982 SC 1008 (7) Nirakar Das vs. Gaurhari Das & Ors. AIR 1995 Orissa 270 (8) Smt. Annapurna Barik Dei & anr. vs. Smt. Inda Bewa & Ors.
(9) Abbot India Ltd. vs. Rajinder Mohindra & anr. 208 (2014) DLT 201 RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 9 of 23 (10) Sabina Sablok vs. Promila Mehra & anr. 2014 (1) RLR 748 (11) Ramesh Chand vs. Suresh Chand & anr. 188 (2012) DLT 538 (12) Roop Singh vs. Murti Sri Radha Krishan Ji 2009 (1) RCR 618 (13) M. Sarojini Devi vs. K. Ramachandra Prasad 2002(4) ALT 376 (14) Venkatesh & Ors. vs. DAC Venkoosa 2008 AIHC 430 (15) Gava Parshad Dikshit vs. Dr. Nirmal Chander & anr. AIR 1984 SC 930.
(16) Raysing Hurji Bhil & Ors. vs. Vaniben Manjibhai & Ors. AIR 2007 Gujarat 69 (17) Praveen Bansal & Ors. vs. Financial Commissioner & Ors. 214 (2014) DLT 155 (18) Mohan Lal (deceased) through his Lrs Kachru & Ors. vs. Mira Abdul Gaffar & anr. AIR 1996 SC 910. (19) Bhagwan Dass Parsadilal vs. Surajmal & anr. AIR 1961 MP 237 (20) Pusa Ram Maniklal vs. Dfeorao Gopalrao AIR (34) 1947 Nagpur 188 (21) Syed Burhan vs. Mohd. Jahangir AIR 2007 AP 225 (22) Hukma & Ors. vs. Manga & Ors. AIR 2003 P & H 287 (23) AMA Sultan vs. Seydu Zohra Beevi AIR 1990 Ker.186 (24) Sohan Singh vs. Gulzari AIR 1997 HP 13 RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 10 of 23 (25) B R Koteshwara Rao vs. G. Rameshwari Bai AIR 2004 A.P. 34 (26) Brahmanath vs. Chandrakali AIR 1961 Patna 79 14 It may be noted the contention of plaintiff regarding limitation of doctrine of part performance of contract appears to be attractive but the same is fallacious and deserve to be rejected in much as in case Rama Kant Jain (supra) daughter (therein) were in possession on the property in question was that of defendants/licencee and, therefore, their claim for the property in question by way of adverse possession was rejected and defendants were held to be licencee but in the present case the defendant is claiming ownership by way of the doctrine of the part performance of the contract and he has never pleaded ownership by way of adverse possession and therefore this judgment has no relevance to the facts of the present case. 15 In FGP Ltd. (supra) the following were held to be the ingredients by invoking provisions of Section 53A of Transfer of Property Act:
1) a contract to transfer immovable property; 2) the transfer should be for consideration; 3) the contract must be in RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 11 of 23 writing:4)it should be signed by or on behalf of the transferor; 5) the terms of the contract can be ascertained with reasonable certainty from the writing; 6) the transferee takes possession of the whole or part of the property or if already in possession continues in possession; 7) such taking of or continuance in possession should be in part performance of the contract; 8) the transferee should do some act in furtherance of the contract;
and 9) he should have performed, or be willing to perform, his part of the contract.
In that case suit for specific performance was filed after 10 years and completion of sale was sought to be affected after the suit for ejectment was filed by the real owner of the immovable property only and in such circumstances it was held that doctrine of part performance could not be invoked. Therefore, this case law has no relevance to the matter in controversy.
16 In D.S. Parvathamma (supra) the doctrine of part performance could not be invoked as the appellant (therein) was in possession of the property in question as a tenant and his suit for specific performance was dismissed and he was also RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 12 of 23 not shown to be delivered the possession in part performance of the contract and in such circumstances the doctrine was held not applicable and, therefore, this case law has no applicability in the present case. In Illikkal Devaswom (supra) the plaintiff had not claimed title of the property in question on the basis of sale whereas in appeal his alternative case was that he was in possession of the property in question and become owner on the basis of doctrine of part performance and in such circumstances his defence based on the doctrine of part performance of the contract was rejected. Therefore, this case law has no relevance to the facts of the present case.
17 In Sardar Govindrao Mahadik and another (supra) there was no evidence of the doctrine of part performance of the contract in as much as the mortgagee was not entitled to the doctrine of part performance and the mortgagee has failed to prove that he did any act in furtherance of the contract and therefore continuance of possession was a circumstances of neutral character in the facts and circumstances of the case. Therefore, this case has no relevance to the facts of the present case. In Nirankar Das (supra) the possession was acquired RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 13 of 23 under the agreement for sale and being permissive possession it was held that plaintiff was not entitled to claim title qua the property in question by adverse possession. But defendant has never claimed adverse possession, therefore, this case law has no relevance. In the same manner in H.C. Nagappa (supra) the vendee entered into the possession of the property in question through agreement to sell. The seller cancelled the agreement but possession remained with the purchaser for more than 12 years and, therefore, claim of the purchaser by way of adverse possession was rejected. But in the present case defendant has never claimed adverse possession.
18 In Abbot India ltd. (supra) the defendant therein had not claimed that he continued in possession of the suit on the basis of doctrine of part performance of the agreement to sell whereas the agreement to sell specifically provided that possession of the property in question was to be handed over to the purchaser at the time of execution of the sale deed and, therefore, plea of doctrine of part performance was held to be not available. But the facts of the present is distinguishable to the facts of the above said case law. In Kumar Consusab (supra) it was only RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 14 of 23 held that agreement to sell did not create any right in property in question in favour of the Vendee until and unless the proprietary title does not validly pass from the vendor to the vendee. Therefore, the present case has no relevance. 19 In Sabina Sablok (supra) it was held that transfer of ownership right in immovable property can only be always by registered documents, therefore, has no relevance to the present case wherein defendant claimed title through agreement to sell on the basis of doctrine of part performance. In Ramesh Chand(supra) the agreement to sell was not registered as per the amended provisions of Transfer of Property Act, therefore, has no relevance to the agreement to sell in the present case which was executed way back in 1980. In Roop Singh (supra), it was observed that by way of admission no title in immovable property could be transferred. Therefore, this case law has no applicability to the facts of the present case. In Achhal Reddi (supra) it was held that purchaser put in possession in pursuance of contract and therefore his possession cannot be held adverse to the true owner., therefore, no relevance to the present appeal wherein the defendant never RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 15 of 23 claimed title to suit property by way of adverse possession. 20 In Sarojini Devi (supra) the provisions of Section 53A was held not applicable in as much as the defendant therein was not ready to perform his part of the contract under the agreement and therefore she was not entitled to the benefit of doctrine of part performance. It was further observed that possession received under the agreement to sell cannot be held to be adverse possession and so this case has no relevance to the present case. In Shivavya (supra) the agreement holder who has obtained possession of the property in part performance of the contract can resist suit for possession as a shield. But transferee who has obtained possession of property in part performance of the contract cannot resist suit for possession if his right to obtain specific performance is barred by limitation. Therefore, this case law has no relevance in the present case as plaintiff is legal heir of the deceased, therefore, the doctrine of part performance can be invoked against him. In Vankatesh & Ors (supra) the tenant was in possession as the tenanted premises in part performance of the contract but in written statement said tenant never pleaded that they are ready to pay RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 16 of 23 the remaining sale consideration to the Vendee. Therefore, they were not held entitled to doctrine of part performance. But in the present case defendant has performed his part of the contract.
21 In Gaya Parshad Dixit (supra) a licencee was held not to the benefit of claiming ownership of the property in question by way of adverse possession, therefore, has no relevance to the present case. In Raysing Hurji Bhil (supra) oral mortgage of the property was executed and defendant (therein) was put in possession and their claim by way of adverse possession was rejected, therefore, this case law has no relevance to the present case. In Praveen Bansal (supra) it was observed that a person cannot claim simultaneously ownership right in the property in question on the basis of title document and on the basis of adverse possession in the suit property. But defendant is not claiming title to the suit property by way of adverse possession and, therefore, this case has no relevance to the facts of the present case.
22 In Mohan Lal (supra) the party in possession of suit land came in possession in terms of agreement to sell by way of part RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 17 of 23 performance of the contract and therefore the said party was not entitled to seek the defence of ownership by way of adverse possession and therefore this case law has no relevance to the present case. In Bhagwandas Parsadilal (supra) the provisions of Section 53A was held not to be applicable and the appellant (therein) in order to secure benefit the said section has either to fulfill his part of bargain or be ready to perform and said facts must be pleaded by the said party. Therefore, this case law has no relevance in as much as the defendant has fulfill his part of contract under the agreement executed by Smt. Sarti Devi in the year 1980. In Pusaram Maniklal Izardar (supra) it was held that for invocation of dotrine in part performance there must be written contract. The party relying on the said document himself fulfill his part of obligation. The readiness and willingness must be pleaded but the defendant has fulfill his part of the contract therefore this case law has no relevance to the present case.
23 In Syed Burhan (supra) it was held that benefit of doctrine of part performance cannot be granted to the transfer who had earlier lost suit for specific performance on the finding RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 18 of 23 that he was not willing to perform his part of contract. Therefore, this case has no relevance to the facts of the present case. In Hukma (supra) the defendant therein failed to plead in their written statement that they were ready and willing to perform their contract. Therefore, the doctrine of part performance was held to be not available to the said defendant, therefore, this case law has no applicability to the present case. In A.M.A. Sultan (supra) there was no pleading on behalf of the defendant (therein) that they obtained possession pursuance to agreement to sell and said defendant performed and willing to perform his part in furtherance of that agreement. Therefore, benefit of section 53A was not given to the defendant(therein) and as such this case law has no applicability to the present case. In Sohan Singh (supra) necessary ingredients of section 53A of Transfer of Property Act were neither pleaded nor proved and therefore claimant was held not entitled to benefit of Section 53A. In Brahamnath (supra) it was held that provisions of section 17 (1) (b) of Registration Act implied definite change of legal relation to a property by an expression of will embodied in the document and therefore required registration. But this RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 19 of 23 case law is also not going to help the appellant in as much as the agreement to sell executed in 1980 did not require to be registered under the provisions of the Transfer of Property Act and, therefore, this case law has no relevance to the facts of the present case.
24 So far as the limitation is concerned, the contention of the counsel for the respondent is also devoid force in as much as the plaintiff was admittedly out of possession from the property since 1980 or at the most 4.11.1992, the day on which the deceased has admitted the defendant as owner of the suit property through document Ex. PW2/D2 and thereafter plaintiff himself admitted the defendant in possession of the suit property as owner. The plaintiff is claiming ownership on the basis of title, therefore, the Trial court has rightly held that article 65 Schedule 1 of the Limitation Act is applicable to the facts of the case of the plaintiff and I found no ostensible reason to differ from the reasonings assigned by the Trial Court while recording finding on this issue.
25 As far as contention of the counsel for the plaintiff that document Ex. DW2/1 is forged is concerned, it may be noted that RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 20 of 23 Ex. DW2/1 bears the date of 23.5.1980 whereas attestion on the last page of this document appears to be that of 14.5.1980. First of all this arguments deserve to be rejected on the ground that an agreement to sell did not required to be notarised and on the second count date alleged to be appended on the last page of this agreement to sell is 14.6.1980 which can be noted even by a deep scanning of the said document. Document Ex. PW2/D1 and Ex. PW2/D2 which are admittedly executed by the deceased and the plaintiff also corroborate the execution of agreement to sell Ex. DW2/1 by the deceased in favour of the defendant. The deceased has also proved to have received the consideration in terms of the agreement to sell Ex. DW2/1 through receipt Ex. DW2/2. The Ld. Trial Court has also rejected the contention of the plaintiff that Ex. DW2/1 did not bear the thumb impression of the deceased and defendant has failed to led evidence that said document was read over and explained to the deceased in as much as the deceased has stated in the document Ex. PW2/D1 that deceased sold the said property to the defendant in the year 1980 and such verification is contained in the Hindi language at the end of this document. RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 21 of 23 The non collection of the rent by the plaintiff and thereafter non seeking rendition of account from the defendant who is alleged to have inducted in the suit property as an authorised person by the father of the plaintiff to collect rent from the tenants in occupation of the various portion of the suit property. Therefore, Ld. Trial Court has rightly taken a plausible view from the evidence on record. Taking into consideration the preponderance of the probabilities and rightly came to the conclusion that the suit property was disposed off by the deceased to the defendant through agreement to sell and on the basis of doctrine of part performance of the contract and the defendant has become the owner of the suit property and the suit of the plaintiff is barred by limitation. 26 As far as the contention regarding admission of defendant in eviction petition Ex. DW2/6 that he did not have any title document of the suit property. The Ld. Trial Court has rightly held that title is not decided in eviction proceedings and I found no reason to disagree with the said findings. In the same manner the contention regarding evidence of defendant regarding title document of the suit property is contrary to documents Ex. DW2/P1 is concerned, the same contention is also devoid of favour in as much as the non production of title RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 22 of 23 documents of previous owner as well as the other necessary documents by defendant is not going to cause a dent in the defence, in as much as Ex. DW2/1 and Ex. DW2/2 are agreement to sell and receipt executed by the deceased in favour of the defendant which are insufficient to entitle the defendant to seek benefits of doctrine of part performance of the contract as per law. The contention of the plaintiff regarding interruption of the possession of the defendant over suit property deserve to be rejected in view of the finding recorded by the Ld. Trial Court in para 16 of the impugned judgment which are not reproduced for the sake of bravity in as much as plaintiff failed to prove that plaintiff ever came into the suit property through his attorney. 27 From the above discussion there is no substance in the present appeal and I find there is no ostensible reason to disagree with the opinion of the Ld. Trial Court on merits after appreciating the evidence. The appeal being devoid of merits deserves to be dismissed and is hereby dismissed. No order as to cost. Decree Sheet be prepared accordingly. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 21.01.2017 (DR. VIJAY KR DAHIYA) ADJ03 (CENTRAL) TIS HAZARI COURTS:
DELHI RCA No. 61217/16 Yudhisther Sharma . V. Om Pk. Sharma Page 23 of 23