Delhi District Court
Sh. Mange Ram vs Sh. Rajesh Jain & Others on 20 September, 2007
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IN THE COURT OF SH. RAJ KUMAR CHAUHAN :
ADDITIONAL DISTRICT JUDGE : DELHI
In the matter of: -
Suit No. 74/2007/2006.
Sh. Mange Ram. ... Plaintiff.
Vs.
Sh. Rajesh Jain & Others. ... Defendants.
- : ORDER : -
1.By this order, I propose to dispose of an application u/o
39 r 1 and 2 CPC of the plaintiff filed alongwith the
present suit in which the plaintiff has sought ad-interim
injunction against the defendants from transferring or
selling or alienating or creating third party interest in plot
bearing no. 143/982, situated in Village Kanjhawala,
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Delhi, as shown in the red colour in the site plan
attached with the plaint (hereinafter referred as the suit
property).
2.The brief facts of the pleadings of the parties as
narrated in the plaint, written statement and the
replication are that the plaintiff is stated to be the
owner of two plots measuring 2100 square yards and
another plot measuring 300 square yards i.e. the suit
property in Village Kanjhawala in khata no. 760 land
bearing no. 142/704 of Village Kanjhawala, Delhi and
the said lands have also been in the use, occupation
and possession of the plaintiff and the same have also
been acquired during the consolidation proceedings in
the year 1997-98. It is further alleged that plaintiff
approached the defendant no. 1 i.e. property dealer to
sell his property of 2100 square yards. With the
assistance of the defendant no. 1 and 2 being residents
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of same village, the plaintiff has agreed to sell the said
land measuring 2100 square yards to the defendant no.
3 by executing the sale deed in favour of the defendant
no. 3. It is further alleged that all the defendants in
collusion with each other at the time of execution of
documents with regard to the above property
fraudulently got executed the documents with regard
to the suit property which is alleged to have been sold
to the defendant no. 1. It is further alleged that this fact
came to the knowledge of the plaintiff when the
plaintiff approached the defendant no. 2 to know the
rates of the suit property as many property dealers were
approaching him for sale of suit property. At that time,
the defendant no. 2 informed the plaintiff that he has
no right to sell the suit property as the suit property has
already been sold by the plaintiff to the defendant no. 1
by executing the GPA and other documents before the
office of the Sub Registrar, Delhi. Immediately, the
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plaintiff approached the Sub Registrar, Delhi for
cancellation of the said GPA, photocopy of which is
annexure B and, accordingly, cancelled the GPA in
favour of the defendant no. 1 vide cancellation deed
dated 3.11.2006 filed as annexure F. It is further alleged
that a fraud had been committed upon the plaintiff at
the time of execution of the sale deed in favour of the
defendant no. 3 because his signatures on the
documents i.e. GPA in favour of the defendant no. 1
were obtained fraudulently at that time. It is further
alleged that the defendant no. 1 has no right or interests
in the suit property and the plaintiff is absolute owner of
the said land; that the defendant no. 1 on 6.11.2006
came alongwith 2-3 other persons and threatened the
plaintiff stating that he has no right qua suit property,
hence, the present suit was instituted with a prayer to
pass a decree of permanent injunction in favour of the
plaintiff and against the defendants from interfering in
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the peaceful possession of the plaintiff in the suit
property. A decree of declaration is also prayed by the
plaintiff in his favour and against the defendants for
declaring the plaintiff as absolute owner of the suit
property because the plaintiff has already cancelled
the GPA allegedly executed in favour of the defendant
no. 1.
3.In the written statement, the defendants took the
preliminary objections that the suit was not
maintainable and plaint was liable to be rejected u/o 7
r 11 CPC. All averments in the written statement have
been controverted and denied stating that the plaintiff
is a cunning man and has filed the present suit to get
the illegal gains. It is further stated that the defendant
no. 1 is the sole owner of the suit property as the same
was sold by the plaintiff to him vide agreement to sell,
GPA, SPA, receipts, registered will etc. dated 6.1.2001;
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the GPA and will dated 6.1.2001, were duly registered
with the Sub Registrar, Delhi; the plaintiff has received
the entire sale consideration from the defendant no. 1
and, thereafter, has executed all the documents in
favour of the defendant no. 1.
4.In replication, the plaintiff has controverted and denied
the averments in the written statement.
5.I have heard the learned counsel for parties. The
learned counsel for defendants vehemently argued
that the plaintiff has failed to show any prima facie case
in his favour because the documents executed by the
plaintiff in favour of the defendant no. 1 with regard to
the suit property are legal documents and as per
various judgments delivered by the Hon'ble High Court
of Delhi, registered GPA coupled with registered will
alongwith payment of consideration is sufficient to
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transfer ownership in the immovable property. It is
further pointed out that from the contents of the
cancellation deed 3.11.2006, it is clear that the
execution of those documents is admitted. The learned
counsel for defendants has particularly pointed out the
page no. 2 of the cancellation deed wherein it is stated
that "I have executed a vide registered GPA as
document no. 4145 dated 6.2.2001 in additional book
no. IV, volume no. 3703, registered in the office of Sub
Registrar-VI, Delhi, in respect of said property/land in
favour of Sh. Rajesh Jain S/o Sh. B.R. Jain R/o H-34/105,
Sector-3, Rohini, Delhi and hereinafter called the
General Attorney and I have informed the General
Attorney. And whereas due to some unavoidable
circumstances, I hereby cancel the said GPA and now
my said General Attorney Sh. Rajesh Jain S/o Sh. B.R.
Jain R/o H-34/105, Sector-3, Rohini, Delhi or any of
his/her/their legal heirs, successors, executors, attorney
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(if any) etc. shall have no right to do any act, deed and
thing in respect of the said property/land."
6.The learned counsel for defendants vehemently argued
that the above contents of the cancellation deed
shows that the said documents were duly executed and
the cancellation has been sought due to unavoidable
circumstances and not due to allegations of fraud and
cheating as alleged in the plaint. With regard to the
transfer of property by agreement to sell and registered
GPA and registered will; the learned counsel for
defendants has relied upon the following citations: -
1.In 2006 (91) DRJ 683 it was held that the transfer by
way of agreement to sell with simultaneous
execution of GPA and agreement of the
construction were judicially recognized.
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2.In 2004 VII AD (Delhi) 473 it was held that the
power of attorney of premises makes the
respondent became landlord on the date when
the agreement to sell executed and got symbolic
possession of the suit premises. Delivery of
possession need not to be physical.
3.In 1998 V AD (Delhi) 28 it was held that the
agreement to sell and irrevocable power of
attorneys executed, for consideration for sale
received by the defendants, in favour of the
plaintiff company were meant not only to get the
sale deeds executed, but also conferred rights on
the plaintiff to manage the properties and deal
with the tenants, create leases or sub-leases.
Pursuant to their execution, the properties being in
occupation of tenants/occupants, constructive
possession of the properties appears as handed
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over to the plaintiff, since the plaintiff has been
dealing with the tenants, recovering rent and
virtually exercising ownership rights all this while... ...
...
4.In 1999 V AD (Delhi) 932 it was held that a power of attorney, agreement to sell, will etc. clearly leads to the prima facie conclusion that the plaintiff had gone through a transaction of sale. These documents are the routine documents executed when a sale of immovable property takes place in Delhi and execution and of further registration of the documents, thus, prima facie indicates that what was intended was a sale of the property.
5.In 1999 RLR 20 it was held that power of attorney sales in Delhi is the common mode of sale of
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immovable properties to get over the legislative restriction on transfer of properties. The power of attorney is for consideration and the bargain is followed by delivery of possession to complete the possession. Further to prevent arbitration and cancellation, will and affidavits about renouncing rights are taken. If power of attorney and will are executed alongwith payment of consideration, it amounts to contract u/s 202 of Contract Act, 1872, because there is no doubt that interest has been created in the property and by delivery of possession, the provisions of Section 53 (A) of Transfer of Property Act, would also come into play.
6.In addition to above, 2002 II AD (Delhi) 734 alongwith 2001 (60) DRJ 738 have also been relied.
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7.It is, therefore, vehemently argued on behalf of the defendants that the defendant no. 1 has become absolute owner of the suit property and, as such, the plaintiff has no right to seek the ad-interim injunction against him for dealing with the suit property in any manner he likes.
8.The learned counsel for plaintiff on the other hand argued that the plaintiff being illiterate person, was cheated by the defendants and at the time of another transaction with regard to his another property, the alleged documents were got executed fraudulently from the plaintiff with regard to the suit property. It is further argued that possession of the suit property is with the plaintiff which is itself shows that the documents allegedly relied by the defendant no. 1, has no value. It is further argued that if the defendant no. 1 has become owner of the suit property on the basis of those
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documents dated 6.1.2001, what steps the defendant no. 1 has taken for taking the possession of the suit property from the plaintiff. Since, no steps have been taken for taking the possession of the suit property, it gives credence to the version of the plaintiff, at this stage, that he has never sold the suit property to the defendant no. 1. With regard to the contents of the cancellation deed dated 3.11.2006, it is argued that the plaintiff is an illiterate person. He has shown his intention to cancel all the documents allegedly got registered fraudulently from him. The contents of the cancellation deed were written by a typist, therefore, the plaintiff was not aware about the intricacies of the contents of the cancellation deed, therefore, it cannot be concluded that the plaintiff has admitted the execution of GPA and will dated 6.1.2001. In the last, it is argued that the plaintiff being in possession of the suit property, as its owner, notwithstanding the alleged GPA in favour of
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the defendant no. 1 cannot be dispossessed from the same without following due process of law.
9.I have considered the rival submissions made at bar and gone through the record. In order to seek the ad- interim injunction, the plaintiff is required to satisfy three basic conditions i.e. the prima facie case in his favour, balance of convenience to be in his favour and apprehension of irreparable loss in case the injunction is refused that may not be compensated in terms of cost. Admittedly, the plaintiff is in possession of the suit property. No steps have been taken by the defendant no. 1 since 6.1.2001 for taking the possession of the suit property on the basis of GPA and will dated 6.1.2001. Admittedly, the GPA and will have already been cancelled by the plaintiff vide cancellation deed dated 3.11.2006. The defendant no. 1 has neither instituted any suit for specific performance against the plaintiff nor
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filed any counter claim in the present suit for seeking possession of the suit property. All these facts shows that the plaintiff is in settled possession of the suit property and his possession is to be protected under law till the possession of the suit property is taken from him with the due process of law. The reliance can be placed on 2004 RLR 251 wherein it was held that if a person is in settled possession even if he is tress passer, then he is entitled to relief u/s 6 of Specific Relief Act. In these circumstances, the case of the plaintiff is such which cannot be thrown away forthwith and, therefore, needs serious consideration by this Court. The plaintiff has, therefore, succeeded in showing prima facie case in his favour. In these given circumstances, the balance of convenience also lies in his favour because it is the plaintiff being in settled possession who is likely to suffer more inconvenience in case the ad-interim injunction is not granted. The plaintiff being in possession of the suit
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property also claiming ownership since long is likely to suffer irreparable loss which cannot be compensated in terms of cost. The application u/o 39 r 1 and 2 CPC is, accordingly, allowed. All the defendants are restrained from dealing with the suit property in any manner i.e. from transferring or selling or alienating or creating third party interest in the same during the pendency of the suit. Nothing expressed herein shall tantamount to expressions of the opinion on the merits of the case. Announced in the open Court on 20.9.2007.
(RAJ KUMAR CHAUHAN) ADDITIONAL DISTRICT JUDGE, DELHI