Delhi District Court
Sh. Ganpat (Deceased) vs Rca No. 29/2017 (54764/2016) on 23 May, 2022
IN THE COURT OF :
Dr. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Regular Civil Appeal no. 29/2017 (54764 / 2017)
In the matter of:
Sh. Ganpat (deceased)
Through LRs
(i) Sh. Chand Ram
(ii) Sh. Jai Bhagwan
(iii) Sh. Hari Om
All residents of
H. No. 1506/21A, Maksudabad Colony,
Najafgarh, New Delhi
(iv) Smt. Bharto
W/o Sh. Chattar Singh
R/o Village Khera Kalan, Delhi
(v) Smt. Khajani
W/o Sh. Om Prakash
R/o Village Khera Kalan, Delhi
(vi) Smt. Chotto Devi
W/o Sh. Anoop Dangi
R/o Shahbad Mohammadpur, Delhi
......Appellants
Versus
RCA no. 29/2017 (54764/2016)
Ganpat & Ors. v. Jameela Khatoon
Page no.1 of 45
Smt. Jamila (Jameela) Khatoon
W/o Khwaja Syed Anis Hussain Baqai
R/o H. No. 4207, Urdu Bazarm Jama Masjid,
Delhi - 110 006
....Respondent
Date of Institution of Appeal : 19.08.2013
Date of transfer to this court : 21.01.2017
Date of reserving judgment : 20.05.2022
Date of pronouncement : 23.05.2022
Appearance :
1. Sh. Anil Kumar Sharma, Advocate ld. Counsel for the appellant
2. Sh. N.C. Sharma, Advocate Ld.Counsel for the respondent.
REGULAR CIVIL APPEAL AGAINST THE JUDGMENT/DECREE
DATED 02.06.2012 PASSED IN CIVIL SUIT NO. 678/02/91 AND
AGAINST ORDER DATED 19.07.2013 PASSED IN REVIEW
APPLICATION
J U D G M E N T:
1. The present appeal has been filed against the impugned Judgment/decree dated 02.06.2012 passed in Civil Suit No. 678/02/91 (in short, the impugned judgment) and order dated 19.07.2013 (in short, the review order) passed on the review application in Civil Suit No. 678/02/91 both passed in the matter titled as "Jameela Khatoon v. Ganpat" (in short, the civil Suit). The parties i.e. the appellant/defendant and plaintiff/respondent are hereinafter referred to as the defendant and plaintiff as per their litigative status before the ld. Trial Court.
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2. It is averred that Mr. Jai Bhagwan, who was duly appointed as attorney of the defendant through general power of attorney dated 07.04.2006 has been authorized to do all such acts necessary for the purpose of contesting the present proceedings.
3. Brief facts relevant for disposal of present appeal are like this:
(i) The plaintiff in the plaint claimed to be owner of land measuring 7 Bighas 19 Biswas comprising Khasra No. 10/10/2 (1 Bigha), 10/11 (5 Bighas 6 Biswas) and Khasra No. 10/19 (1 Bigha 13 Biswas) situated in Village Najafgarh as allotted to her on 08.11.1976 by the Central Government (hereinafter referred to as the said property).
(ii) It is averred that plaintiff sold 250 sq. yards of land in Kh. no.
10/10/2 in front of the road to Smt. Ram Devi w.o Sh. Sant Lal Dingra, (in short, the said plot) and the remaining land in the said khasra no. 10/10/2 is in possession of the plaintiff and the description of the said land is as follows :
East : Land in khasra no. 10/10/1 belonged to other persons West : Plot of Mrs. Ram Devi now illegally encroached by defendants and house of Des Raj North : land in khasra no. 10/10/1 South : Land in khasra no. 10/11 belonged to the plaintiff, and is shown by the words A.B.C.D in the plan filed with the plaint. Besides the plaintiff is also owner and possession of land in khasra no.10/11 as shown by words K,L,M,N,O,P,F,G,H,I & J RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.3 of 45
(iii) It is averred that the defendant illegally occupied the 124 sq. yards of land in khasra no. 10.10/2 of the plaintiff (in short the suit plot) and raised construction thereon and despite the efforts made by plaintiff, defendant did not stop construction over the suit plot. The defendant being illegal possession of the suit plot is liable to pay the mesne profit/damages @ Rs. 300 per month. Plaintiff demanded possession of the suit plot but defendant refused to handover the same. The plaintiff was having apprehension in her mind that defendant after encroaching the land in khasra no. 10/10/2 (the suit plot) will also like to encroach upon the adjoining land of the plaintiff which falls in khasra no. 10/11.
(iv) The plaintiff further pleaded in the plaint, that in the month of February, 1991 the defendant illegally occupied the land of Smt. Ram Devi, (the said plot) and after breaking a wall illegally occupied approximately 124 sq. yards of land in Khasra No. 10/10/2 (the suit plot). The plaintiff stated in the plaint that after coming into possession of the said plot and suit plot, the defendant started raising construction and illegally occupied the suit plot.
(v) The plaintiff further claimed to be the absolute owner of the suit plot. The plaintiff further stated that she had entered into the agreement to sell dated 04.08.1982 for a portion of the said property (in short, the said land) with Sh. Jeet Singh whereby Rs. 50,000/ were paid vide cheque to the plaintiff and balance amount of Rs.
RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.4 of 45 1,50,000/ was to be paid by Sh. Jeet Singh to the plaintiff at the time of registration of the sale deed.
(vi) It is further averred that cheques given by Sh. Jeet Singh were dishonoured and thus the consideration did not pass on to the plaintiff, therefore, Sh. Jeet Singh did not become the owner of the suit plot as well as the said plot. The plaintiff further stated to have revoked the general power of attorney in respect of the said land in favour of Sh. Jeet Singh through notice dated 26.03.1984 (Ex.PW3/9). Hence, the suit for possession has been filed.
4. The defendant was served & filed written statement with following averments. :
(i) The defendant filed written statement rebutting the contentions raised in the plaint by plaintiff, and averred that plaintiff is not the owner of the suit plot as the portion of the said property (in short, the said land) was sold by plaintiff to Mr. Jeet Singh, who paid the consideration through the receipt (Ex. DW1/12) and, Sh Jeet Singh, further sold a part of the said land admeasuring 1100 sq. yards (in short, the suit property) to Smt. Parmeshwari Devi who, in turn, sold the suit plot (a part of the suit property) to Sh. Hari Kishan, and from whom the suit plot has been purchased by the defendant.
(ii) The defendant thus stated that plaintiff did not have any locus to file the suit against defendant. The plaintiff did not have any cause of RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.5 of 45 action against defendant. The defendant in the written statement has contended that there is no cause of action in favour of the plaintiff as defendant is owner in possession of the suit plot much prior to the alleged date of accrual of cause of action on 07.02.1991.
(iii) It is submitted that the present suit cannot be proceed further as the matter in issue, in the present suit was also directly and substantially in issue in a previous suit, in which the defendant was also impleaded as a defendant (therein) and both the parties in the said suit are having the same character. The plaintiff had never been in possession of the suit plot. The defendant never illegally occupied the said plot of Smt. Ram Devi W/o Sh.Sant Lal Dhingra. The defendant never entered into the land of plaintiff in Khasra no.10/10/2 and illegally occupied approximately 124 sq. yards of land in Khasra no. 10/10/2 (the suit plot).
(iv) It is submitted that the plaintiff had executed a general power of attorney date 04.08.1982 in favour of Mr. Jeet Singh (Exhibit DW 1/11) and agreement to sell dated 04.08.1982 (Exhibit PW4/1) with respect to land measuring 15 Biswas (750 sq. yards) out of Khasra No. 10/10/2 and 1 Bigha 5 Biswas (1250 sq. yards) out of Khasra No. 10/11 (the said land). The sale consideration for the purchase of the sale of the said land, was supplied in term of the registered receipt dated 04.08.1982. (Ex. DW1/12).
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(v) It is submitted that Smt.Parmeshawari Devi, on 15.10.1982 purchased a piece of land admeasuring 22 Biswas (1100 sq. yards) out of Khasra No. 10/10/2 and 10/11 (the suit property) for a consideration of Rs. 30,000/ from her husband Mr. Jeet Singh through a registered sale deed dated 15.10.1982 (Ex. DW1/10) i.e. half of the said land (the suit property). The mutation of the sale deed in respect of the suit property was also entered into in favour of Smt. Parmeshwari Devi on 15.10.1982 in the revenue records of Tehsil, Najafgarh, New Delhi.
(vi) It is averred that on 05.02.1988, Smt. Parmeshwari Devi sold a piece of land measuring 376 sq. yards (the suit plot) out of 22 Biswas (1100 sq. yards/the suit property) out of Khasra No. 10/10/2 and 10/11 to Mr. Hari Kishan for a total sale consideration of Rs. 18,000/ in terms of the agreement to sell, power of attorney, affidavit of money, receipt all dated 05.02.1988 (Ex. DW1/6 to DW 1/9) in favour of Mr. Hari Kishan.
(vii) It is further submitted that Mr. Hari Kishan, on 20.05.1998 sold the suit plot to defendant for a total consideration of Rs. 22,000/ in terms of the agreement to sell, general power of attorney, receipt and affidavit all dated 20.05.1988 (Ex. DW1/2 to DW1/5) in favour of the defendant. The defendant became the owner of the suit plot and constructed a residential house over the suit plot and has been residing over the plot since more than 20 years.
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(viii) It is further averred that the plaintiff (in the year 1991) i.e. after about 9 years of entering into the agreement for sale of the said land, instituted a civil suit against the defendant seeking permanent injunction, recovery of possession, damages and mesne profits.
5. The plaintiff filed its replication rebutting the contentions raised by defendant and after considering the pleading of the parties, the following issues were framed by the ld. trial Court :
(a) Whether the plaintiff has no locus standi to file the present suit? OPD
(b) Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD
(c) Whether the suit has been filed without any cause of action? OPD
(d) Whether the plaintiff is entitled for a decree of permanent injunction, as prayed for ? OPP
(e) Whether the plaintiff is entitled to decree of possession, as prayed for ? OPP
(f) Whether the plaintiff is entitled for any damages/mesne profits and if yes, at what rate? OPP
(g) Relief.
6. Thereafter, the plaintiff led evidence. The plaintiff to prove her case has examined a witness from Allahabad Bank, who was the banker of Sh.Jeet Singh, to whom the alleged attorney was given by the plaintiff. PW2 is the husband of plaintiff. PW3 is the plaintiff herself. PW4 is the witness from record room who has placed on record the copy of agreement to sell executed between RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.8 of 45 plaintiff and Sh.Jeet Singh and PW5 and PW6 are not material witnesses.
7. The defendant has examined his son/attorney as DW1 and a witness from office of Patwari, Najafgarh as DW2 and a witness from the office of SubRegisrar, Kashmere Gate as DW3, a witness to the documents executed by Smt. Parmeshwari Devi in favour of Sh.Hari Kishan as DW4 and a witness to the documents executed by Sh.Hari Kishan in favour of the defendant as DW5. The Ld. trial court decreed the suit through the impugned judgment/decree.
8. It is averred that the defendant on 03.07.2012, filed a review application against the impugned judgment/decree before the ld. trial Court elucidating that certain settled position of law has not been considered by the ld. trial Court in passing the impugned judgment and there is an error apparent on record which needs to be rectified. It had been stated that the plaintiff has failed to implead Mr. Jeet Singh, Smt. Parmeshwari Devi, Mr. Hari Kishan, who were necessary and proper parties to the civil suit. The defendant further stated that plaintiff has also not sought cancellation of the sale deed (Ex. DW1/10) and the entries made in the revenue record of Tehsil, Najafgarh, New Delhi, nor has sought cancellation of the other documents which have been executed by Parmeshwari Devi in favour of Mr. Hari kishan and by Mr. Hari kishan in favour of the defendant. The defendant apprised the ld. trial Court about the RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.9 of 45 settled position of law that a mere suit for possession is not maintainable without seeking cancellation of the sale documents. However, the said application for review of the judgment/order was dismissed through order dated 19.07.2013.
9. Being aggrieved by the impugned judgment and the review order passed by ld. trial Court, the LRs of defendant have filed the present appeal.
10. During the course of arguments, the ld. counsel for the defendant no. 3 has raised the following contentions :
(i) The judgment/decree and the review order passed by the ld.
trial Court are not sustainable in the eyes of law in as much as ld. trial Court has wrongly appreciated and misinterpreted the facts.
(ii) The ld. trial Court has failed to apply the law laid down in several judgment passed by the Hon'ble High Court of Delhi and Hon'ble Apex Court and if the ld. trial Court had applied the ratio of the said judgments to the facts of the suit, it would not have been certainly dismissed the suit. . The defendant brought the correct position of law and correct facts before the ld. trial Court in the review application, however, the same was dismissed by the ld. trial Court without appreciating the contentions and submissions on behalf of the defendant.
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(iii) That the impugned order and the review order passed by the ld. trial Court are not sustainable in the eyes of law as it is against the settled position laid down by the Hon'ble Apex Court and the Hon'ble High Court of Delhi.
(iv) That the ld. trial Court has not appreciated the correct position of law and facts and thus the impugned judgment/decree and the review order suffer from severe infirmity which needs to be rectified, and are thus being pointed out by the defendant through the present appeal.
(v) The ld. trial court has not appreciated that the notice dated 26.03.1984 issued by the plaintiff for the cancellation of the power of attorney and the agreement to sell in favour of the Mr. Jeet Singh was actually never issued, which fact is evident from the evidence of the PW3 in as much as, the original of the postal receipt and UPC were in possession of the plaintiff, but plaintiff has not filed the same during the trial, and thus the receipt of the notice dated 26.03.1984 (Ex. PW3/9) has not been proved by plaintiff. The testimony of plaintiff also elucidates and lead to conclude that plaintiff is not sure about the issuance of the notice to Sh. Jeet Singh and the answers given by plaintiff cast serious doubt on the issuance of the said notice. In addition to it, the alleged notice dated 26.03.1984 has only been issued after almost 2 years of entering into the agreement to sell and execution of the power of attorney, and after almost 1 year RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.11 of 45 of the alleged dishonor of the cheques, which itself displays the ill intention of plaintiff.
(vi) That the plaintiff has duly received the consideration amount from Sh. Jeet Singh, which has been proved on record vide the registered receipt dated 04.08.1982 (Ex. DW 1/12) through the testimony of Sh. Chitranjan/DW3, who has proved on record the execution of the registered receipt and also the registration of the sale deed dated 15.10.1982 (Ex. DW1/10) in favour of Smt. Parmeshwari Devi.
(vii) The ld. trial Court has not appreciated that the signatures of the plaintiff on the plaint, the agreement to sell (Ex. PW4/1) and power of attorney (Ex. DW1/11) and the receipt (Ex. DW 1/12) are evidently the same, therefore, it cannot even be inferred that these documents are the fraudulent sale documents. Furthermore, in case, the said sale documents/receipt was got registered by Mr. Jeet Singh by playing fraud upon plaintiff, then why plaintiff has instituted any criminal complaint against Mr. Jeet Singh for cheating.
(viii) The ld. trial Court has not appreciated that plaintiff has failed to produce any witness to show that the registered receipt is a forged and fabricated document in as much as the husband of plaintiff was himself the witness to the execution of the registered receipt in favour of Sh. Jeet Singh. The plaintiff has merely stated in her cross RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.12 of 45 examination that she has not executed the receipt for Rs. 2,00,000/ before the subregistrar office in favour of Sh. Jeet Singh.
(ix) The ld. trial Court has not appreciated that plaintiff has failed to implead Sh.Jeet Singh, Smt.Parmeshwari Devi, Sh.Hari Kishan as party to the Civil Suit who were not only the necessary parties but also were proper parties, therefore, the suit was liable to be dismissed by the ld. trial Court. The plaintiff had complete knowledge about the sale documents executed in favour of Sh.Jeet Singh, Smt. Parmeshwari Devi and Sh.Hari Kishan, however, plaintiff has failed to implead them as parties to the present suit.
(x) The ld. trial Court has not appreciated the fact that plaintiff has sold the suit land to Sh.Jeet Singh in terms of agreement to sell through which Rs. 50,000/ was paid vide cheque at time of agreement to sell, which was duly encashed as directed by Smt. Jameela Khatoon and remaining Rs.1,50,000/ was to be paid at time of execution of the sale deed and thus Sh.Jeet Singh handed over the cheques to plaintiff. However, it had been decided, later on, the same day that Sh.Jeet Singh would like to give the total sale consideration for sale of the said land and thus Sh.Jeet Singh got executed a registered power of attorney and registered receipt and made payment of Rs.15,000/ in cash to the plaintiff. Thus, Sh.Jeet Singh made the request for stopping payment of the cheques as the plaintiff did not return the cheques. Despite the fact that defendant RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.13 of 45 made such pleadings even though Sh.Jeet Singh, being a necessary and proper party, has not been impleaded as a party, therefore, the suit is liable to be dismissed on this ground alone.
(xi) The ld. trial Court has not appreciated that there is a strong presumption of genuineness in favour of a registered document and the said presumptions cannot be rebutted by merely making a statement before the ld. trial Court that the same was not executed by plaintiff in favour of Sh.Jeet Singh. The plaintiff has also failed to put any suggestion to DWs that plaintiff did not receive the consideration of Rs. 2,00,000/ at the time of execution of the registered receipt of money in favour of Sh. Jeet Singh.
(xii) The ld. trial Court has not appreciated that plaintiff had filed the suit merely for possession, injunction and damages/mesne profits without seeking cancellation of the documents i.e. the general power of attorney and the agreement to sell in favour of Sh. Jeet Singh; the plaintiff, inspite of having knowledge about the execution of the sale deed in favour of Smt. Parmeshwari Devi, and the mutation entries entered in favour of Sh. Parmeshwari Devi in the revenue records, has failed to seek cancellation of the documents which have created right adverse to that of plaintiff.
(xiii) The ld. trial court has not appreciated that plaintiff has filed a mere suit for possession, injunction and damages in as much as the RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.14 of 45 plaintiff, after selling the suit land to Sh.Jeet Singh in 1982, developed ill intentions and wanted to grab the suit plot and, therefore, to avoid the limitation of three years, plaintiff by way of clever drafting, instead of filing suit for seeking cancellation of sale documents, has filed the suit for possession and injunction which has a limitation period of 12 years. The plaintiff had knowledge about the sale of the suit property made by Sh.Jeet Singh to Smt. Parmeshwari Devi and, thereafter, sale of suit plot by Smt.Parmeshwari Devi to Mr. Hari kishan and, thereafter, sale of suit plot to defendant but plaintiff never challenged such sale documents.
(xiv) The ld. Trial Court has not appreciated that the suit is also barred under the provisions of Specific Relief Act, 1963 as the plaintiff has not sought the relief for cancellation of documents executed in favour of Sh. Jeet Singh and other transferee. Therefore, the plaintiff now cannot seek cancellation of the entire transaction being bound by the rule of estoppel. The limitation period of filing the suit for cancellation of the said documents is three years and even after lapse of nine years, the plaintiff only instituted a suit for possession, damages and injunction. Hence, the relief for cancellation of the said documents has become time barred as per the law of limitation.
(xv) The ld. trial court has not appreciated that the plaintiff without seeking declaration of cancellation of documents has filed the suit for RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.15 of 45 possession in order to get rid of rigours of avoiding the statutory bar of limitation, which is three years. The plaintiff has purposely and knowingly filed the suit of possession, where limitation is twelve years. The said act has been done by the plaintiff in order to create an illusion of cause of action and plaintiff tried to cover the period of limitation by means of clever drafting which is not permissible in view of the settled law. In this regard, reliance is placed upon Sh.Mukhinder Singh (Deceased) through LRs & Ors. v. Sh.Gurbux Singh & Ors. (2012) ILR 4 Delhi 578. The plaintiff came to know about the execution of the sale deed (Ex. DW 1/10) by Sh.Jeet Singh in favour of Smt.Parmeshwari Devi, the plaintiff has failed to institute any suit for the cancellation of the sale deed nor has sought cancellation of the documents executed by Smt. Parmeshwari Devi in favour of Sh.Hari Kishan and sale documents executed by Sh.Hari Kishan in favour of defendant (Ex.DW1/2 to Ex.DW1/9). The plaintiff has very cleverly even after having knowledge, has filed a mere suit for possession, injunction and mesne profits against the defendant.
(xvi) The defendant has placed reliance upon judgment Raj Kumari Garg v. S.M. Ezaz & Ors. 2012 (132) DRJ 108 in order to contend that Article 58 of the schedule of limitation prescribed 3 years of limitation from the date on which the right to sue accrues and the suits instituted after the period of prescribed period of limitation are liable to be dismissed even through limitation may not have been set RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.16 of 45 up as a defence. The filing mere suit for possession with an injunction without seeking declaration of cancellation of documents would lead to create an illusion of cause of action to get over the period of limitation. Therefore, the suit of plaintiff is also barred being only suit for possession without seeking cancellation of the sale documents.
(xvii) The ld. Trial Court has not appreciated that the plaintiff along with Smt.Ram Devi and other hatched a conspiracy to grab the suit plot of defendant and, therefore, Smt.Ram Devi has not filed any criminal complaint against plaintiff for selling her plot in the year 1982 to Sh.Jeet Singh. The plaintiff, being the seller of the land, sold the land twice i.e. first to Sh.Jeet Singh and later by executing false and fabricated documents transferred 250 sq. yards plot to Smt.Ram Devi and a separate suit being CS No. 348/04/87 titled as Smt.Ram Devi v. Smt. Parmeshwari Devi & Ors. has been dismissed by the ld. trial Court through judgment/decree dated 08.03.2011.
(xviii) The ld. trial Court has not appreciated that plaintiff had filed another suit against Sardar Malkiat Singh who had purchased another piece of land measuring 234 sq. yards out of 1100 sq yards in Khasra No.10/11 (a portion of the suit property) through Smt.Parmeshwari Devi, who had purchased the same from Sh.Jeet Singh through a registered sale deed, as in the present case before this Court. Plaintiff, in the said suit, had impleaded Smt.Parmeshwari RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.17 of 45 Devi as defendant no.2. The plaintiff had raised exactly similar pleas in the said suit as are in the present suit before this Court. The said Civil Suit No. 778/96/88 titled as Jameela Khatoon v. Sardar Malkiat Singh & Ors. was dismissed by the ld. trial Court on 29.11.2004.
(xix) The ld. trial Court has erroneously observed in the impugned judgment that the registered receipt (Ex. DW1/12) is a fabricated document for the reason that Sh.Jeet Singh purchased 2000 sq yards (the said land) for a consideration of Rs. 2 lacs on 04.08.1982 but very surprisingly, he sold 1100 sq yards out of the said land (the suit property) to his wife Smt.Parmeshwari Devi for an amount of Rs.30,000/, without apprehending the settled proposition of law that the parties can enter into an agreement for sale of land at the consideration settled between the parties, until and unless, the same is not below the circle rates prescribed by the Government, and there is no tax evasion from the transaction, therefore, the inadequacy of consideration cannot lead to the conclusion that the registered receipt dated 04.08.1982 is a fabricated documents.
(xx) The ld. trial Court has erroneously held in the impugned judgment that 'either the sale deed Ex.DW1/10 is a sham deal or the receipt dated Ex.DW1/12 is a fabricated document'. The logic behind the reasoning arrived at by the ld. trial Court that either the sale deed is a sham or receipt is a fabricated documents is totally illogical in as much as the execution of the receipt has been duly RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.18 of 45 proved on record by DW3. The plaintiff has failed to challenge either the registered sale deed or the registered receipt and have not sought declaration of cancellation of the said documents. The said documents and the revenue entries made on the basis of these documents still remain recorded.
(xxi) The ld. trial Court has not appreciated that the cheques (Ex.PW1/1 and Ex.PW1/2) issued by Sh.Jeet Singh were for an amount of Rs.70,000/ and the consideration amount allegedly to be paid by Rs.1,50,000/. Then in what circumstances, the plaintiff accepted the cheques of Rs. 70,000/ only against the amount of Rs.1,50,000/ have not been explained by the plaintiff. It can be easily made out the actual situation was different and the plaintiff has already received consideration amount through the registered receipt.
(xxii) The ld. Trial Court has not appreciated the fact that suit is bad for nonjoinder of necessary and proper parties namely Sh.Jeet Singh, Sh.Hari Kishan and Smt.Parmeshwari Devi. Although, this legal objection has not been raised by the defendant before the trial Court, however, it is evident that the plaintiff did not implead the necessary and proper parties mentioned herein above and therefore, the Suit was liable to be dismissed.
RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.19 of 45 (xxiii) The ld. trial Court has erroneously applied the law laid down by the Hon'ble Apex Court in the matter titled as Suraj Lamp Industries Pvt. Ltd. v. State of Haryana & Anr. VII (2011) SLT 494. In as much as the Hon'ble Apex Court has clearly laid down in the above mentioned judgment that SA/GPA/WILL transactions can be used to defend possession under Section 53A of the Transfer of Property Act and further that the observations made by the Hon'ble Court shall not be intended, in any way, to affect the validity of power of attorneys issued in genuine transactions like in the present case. The defendant is entitled to the benefit of the doctrine of part performance u/s 53A of the Transfer of Property Act.
(xxiv) The ld. trial Court had erroneously held that the transaction being based upon unregistered documents is incapable of creating any right, title or interest in favour of Sh.Hari Kishan or the defendant. The ratio of judgment decidendi of Suraj Lamp (supra) did not cast doubt over the sale documents in favour of defendant. It is apparent that the sale transactions upto the agreement of sale of the defendant are genuine. Observations of the judgment of Hon'ble Supreme Court are not intended in any way to affect the validity of sale agreements and power of attorney in genuine transactions.
(xxv) That the ld. trial Court has erroneously not considered the testimony of the DW4 & DW5 and observed that the documents executed by Smt.Parmeshwari Devi in favour of Sh.Hari Kishan and RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.20 of 45 the sale documents executed by Sh.Hari Kishan in favour of the defendant have no value. However, the suit is not maintainable as the defendant is a bonafide purchaser of the suit plot from Sh.Hari Kishan and had purchased the same after verifying the documents of Sh.Hari kishan and for valuable consideration. The defendant had taken reasonable care to ascertain that Sh.Hari Kishan, Smt.Parmeshwari Devi and Sh.Jeet Singh were authorized to make the transfer of the suit plot in favour of the defendant. It is thus submitted that the suit is barred by the provisions of Section 41 of the Transfer of the Property Act.
(xxvi) It is evident from the provisions of Section 41 of the TP Act, the defendant is covered under the provisions of the said Section. The plaintiff was evidently owner of the said property, who had transferred the said land for consideration to Sh.Jeet Singh with the rights to further transfer the said land, to anyone, half of which (the suit property) later on, was transferred by Sh.Jeet Singh to Smt.Parmeshwari Devi. That Sh.Hari Kishan acted in good faith to transfer the suit plot purchased from Smt.Parmeshwari Devi to the defendant taking reasonable care and had the right to transfer the suit plot in favour of the defendant in view of the clauses of the agreement to sell executed by Smt.Parmeshwari Devi in favour of Sh.Hari Kishan.
RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.21 of 45 (xxvii) The ld. trial court has not appreciated that defendant has been in peaceful possession of the suit plot purchased through genuine sale transactions since 1988 and the plaintiff has left no effort to deprive the defendant of his legitimate rights. Therefore the damages claimed by the plaintiff @ Rs. 300/ ought not to have been allowed.
(xxviii) The ld. trial Court has erroneously laid down in the review order that the review application has been filed merely to delay the proceedings and erroneously imposed the cost of Rs. 5,000/ on the defendant. The plaintiff has misled this court by not disclosing the true facts and has concealed necessary documents from this Hon'ble court to give the truth in the present suit a distorted version of her own.
(xxix) It is contended by ld. counsel for the defendant that the plaintiff has already sold 1 Bigha/1000 sq. yds land comprised in khasra No. 10/10/2 out of which 250 sq. yds. was allegedly sold to Smt.Ram Devi W/o Sh.Sant Lal Dhingra and the balance 750 sq. yds. in Khasra No. 10/10/2 was given to Sh.Jeet Singh, who sold the same to Smt.Parmeshwari Devi and no area admeasuring 125 sq. yds. (the said plot) was left with plaintiff. This information was withheld by plaintiff which tantamount to fraud on this court inasmuch as the said information was withheld by the plaintiff from this court. Therefore, the claims of plaintiff that defendant entered upon the suit plot of plaintiff and the said plot belonging to Smt.Rama Devi is false one.
RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.22 of 45
11. Per contra, ld. counsel for the plaintiff has contended that the plaintiff has disposed of an area of about 2000 sq. yds. (the said land) to Sh.Jeet Singh through GPA and agreement to sell. The cheques issued by Sh.Jeet Singh were dishonoured and, therefore, plaintiff cancelled the said agreement to sell/GPA executed in favour of Sh.Jeet Singh. The subsequent sale documents executed by Sh. Jeet Singh namely sale deed in respect of the suit property in favour of his wife Smt.Parmeshwari Devi and, thereafter, the sale documents in respect of the suit plot executed by Smt.Parmeshwari Devi in favour of Sh.Hari Kishan and, ultimately, the sale documents in respect of the suit plot executed by Sh.Hari Kishan in favour of defendant/Ganpat are null and void and did not require any declaration of the same as null and void. The suit has rightly been decreed. This appeal is devoid of merits and deserves to be dismissed.
12. I have heard the counsel for the parties and with their assistance have gone through the record.
13. In the backdrop of aforementioned facts, circumstances, events and from the pleading of the parties, evidence on record and perusal of the trial Court record, and in view of the submissions made before this court, the following points for determination in this appeal arises, namely :
i) Whether the plaintiff being owner, without seeking declaration of the sale documents executed in favour of Sh.Jeet Singh and RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.23 of 45 subsequent vendees of the suit plot, is entitled to the possession thereof ?
ii) Whether the defendant has become owner in possession of suit plot by virtue of Section 53A of the Transfer of Property Act ?
iii) Whether defendant has been an ostensible owner of the suit plot?
iv) Whether the suit is barred by limitation.
POINT OF DETERMINATION NO. (i) & (ii)
i) Whether the plaintiff being owner, without seeking declaration of the sale documents executed in favour of Sh.Jeet Singh and subsequent vendees of the suit plot, is entitled to the possession thereof ?
ii) Whether the defendant has become owner in possession of suit plot by virtue of Section 53A of the Transfer of property Act ?
The point for determination nos. (i) & (ii) are overlapping each other, therefore, these points of determination are disposed off by this common order.
14. It may be noted that plaintiff has filed the suit for possession, permanent injunction claiming that she sold 250 sq. yds. of land in Khasra No.10/10/2 (the said plot) to one Smt.Ram Devi. The defendant in the month of February, 1991 illegal encroachment upon the said plot as well as the said portion of land belonging to plaintiff approximately 125 sq. yds. out of Khasra No.10/10/2 (the suit plot).
RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.24 of 45 Admittedly, the plaintiff has sold 2000 sq. yds. of her immovable property (the said land) on 04.08.1982 to Sh.Jeet Singh through the sale documents as detailed in the foregoing paras on this judgment. Thereafter, said Sh.Jeet Singh out of the 2 Bighas land (2000 sq. yds. of the said land) sold a port of the same to his wife namely, Smt. Parmeshwari Devi admeasuring 1100 sq. yds. (the suit property) through the sale deed dated 15.10.1982 and the mutation of the same was entered into the name of Smt.Parmeshwari Devi on 19.03.1987. However, Sh.Jeet Singh has not given the details of the khasra numbers of the area of land sold by Sh. Jeet Singh to his wife Smt.Parmeshwari Devi in sale deed Ex.DW1/10.
15. It may be noted that Smt. Parmeshwari Devi sold 376 sq. yds. (the suit plot) out of 1100 sq. yds. (the suit property) to Sh.Hari Kishan through sale document Ex.DW1/2 to DW1/5 on 05.02.1988 and, thereafter, Sh.Hari Kishan sold the suit plot to defendant through sale documents.
16. It may be noted that plaintiff has executed the GPA (Ex.DW1/11), agreement to sell (Ex.PW4/1) and the registered receipt (Ex.DW1/12) through which 2 Bighas of land (2000 sq. yds. i.e. the said land) was sold to Sh.Jeet Singh. Though, the plaintiff has denied the receipt (Ex.DW1/12). However, it is registered document and there is a presumption in favour of the registered document that those documents are being executed by the parties as per law. Though not quoted, reliance has been placed upon Prem Singh v. Birbal (2006) 5 SCC RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.25 of 45 353 wherein it has been observed as under:
"There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent No.1 has not been able to rebut the said presumption."
17. Ld. counsel for defendant has raised the contention that Sh.Jeet Singh has paid amount of Rs.2 lakhs in cash as detailed in the registered receipt (Ex.DW1/12). However, cheque has been issued by Sh.Jeet Singh in advance and on payment on account of Rs. 1.5 lakhs in cash by Sh.Jeet Singh to plaintiff, the said cheques were to be returned by plaintiff to Sh.Jeet Singh, however, she did not return the same to Sh.Jeet Singh and presented the same before the banker, which stood dishonoured.
18. It may also be relevant to observe herein that ld. Trial Court has observed that the cheque no.4291 (Ex.PW1/1) issued by Sh.Jeet Singh to plaintiff was dishonoured vide documents Ex.PW1/2. However the cheque (Ex PW1/1) was not in the name of Smt.Jamila Khatoon/plaintiff as deposed by PW1. The cheques bearing no. (i) 898880 dated 10.04.1983 (Ex.PW3/5) was returned through returned memo of the said cheque (Ex. PW3/6), (ii) The cheque no. 955441 dated 10.04.1983 (Ex. PW3/7) for amount of Rs.35,000/ issued by Sh.Jeet Singh, returned through return memo dated 02.06.1983 (Ex. PW3/8), and (iii) cheque no. 004291 dated 10.04.1983 amount of Rs. 35,000/ returned through return memo Ex.PW1/2.
RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.26 of 45
19. Admittedly, an amount of Rs. 50,000/ was received by plaintiff from Sh.Jeet Singh, as sale consideration of the said land as per her admission, however, the registered receipt (Ex.DW1/12) depicts that the amount of Rs. 2 lakhs was paid in cash at the time of execution of the sale documents. The plaintiff had never taken any action against Sh.Jeet Singh for dishonour of the said cheques. The contention of the counsel for defendant that the amount of Rs.1.5 lakhs was paid in cash and plaintiff failed to return the cheques so given as sale consideration to plaintiff belies logic in as much as had been the sale consideration of Rs.1.5 lakhs was paid in cash as detailed in the receipt (Ex.DW1/2) defendant would have got incorporated the fact that the cheques in question were to be returned by plaintiff to defendant.
20. It may be relevant to mention that if plaintiff has received cheques from Sh.Jeet Singh as remaining sale consideration for the purchase of the suit plot, which on presentation stood dishonoured, plaintiff must have taken any action against Sh.Jeet Singh. It is, however, inconceivable that if the payments have remained unpaid, the plaintiff has remained silent for a period of about 9 years without even issuing a legal notice for payment of the unpaid sale consideration or instituting any proceedings for recovery of the amount by filing the suit. The plaintiff even had neither cancelled the sale documents executed in favour of Sh.Jeet Singh nor sought possession from Sh.Jeet Singh immediately in as much as Sh.Jeet Singh admittedly was in possession of the suit land, therefore, it may RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.27 of 45 be presumed that plaintiff has failed to prove that Sh.Jeet Singh has not paid the remaining sale consideration.
21. It may be relevant to note herein that, if it is presumed for the sake of argumetns, though not admitted, that the part payment of Rs1.50 lacs has not been made by Sh.Jeet Singh to plaintiff as per the contention of plaintiff, but despite the fact that the cheques issued by Sh.Jeet Singh to Smt.Jamila Khatoon/plaintiff have been dishonoured, plaintiff has neither filed any proceeding either u/S 138 of the N. I. Act against Sh.Jeet Singh nor any suit for recovery has been filed by plaintiff against Sh.Jeet Singh for recovery of the alleged remaining sale consideration. Therefore, this fact if on the anvil of the preponderance of probabilities, it can be inferred the Smt.Jamila Khatoon had received the full sale consideration.
22. It may be noted that the ld. Trial Court has discarded the sale documents by making observation that the receipt (Ex.DW1/12) appears to be fabricated for the reason that Sh. Jeet Singh purchased 2000 sq. yds. of land (the said land) for consideration of Rs. 2 lakhs on 04.08.1982 and sold the portion of the suit land (1100 sq. yds. i.e. the suit property) to his wife Smt.Parmeshwari Devi for a meager sum of Rs. 30,000/. Therefore, either the sale deed (Ex.DW1/10) dated 15.10.1982 executed by Sh.Jeet Singh in favour of his wife Smt.Parmeshwari Devi is a sham deal or the receipt Ex.DW1/12 is a fabricated document. It was further observed that the plaintiff had agreed to sell the suit land to Sh.Jeet Singh for an RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.28 of 45 amount of Rs.2 lakhs and the balance amount of Rs. 1.5 lakhs was to be paid on or before the registration of the sale deed The payment of remaining sale consideration was a condition precedent for execution of the sale deed and for passing of title of the said land, in favour of Sh.Jeet Singh u/s 53A of the Transfer of Property Act.
23. The ld. Trial Court has wrongly discarded the execution of sale deed (Ex.DW1/10) inasmuch as the sale deed was executed by Sh.Jeet Singh, on the basis of the GPA (Ex.DW1/11) executed in his favour by plaintiff, in favour of his wife Smt.Parmeshwari Devi for an amount of Rs.30,000/ for sale of about half of the said land (the suit property), which was purchased by Sh.Jeet Singh from plaintiff for an amount of Rs. 2 lakhs, on the ground that sale consideration was inadequate, therefore, it is sham document. In this regard, suffice it to say that inadequacy of the consideration, is no ground for treating the sale documents as void, otherwise also, the non payment of sale consideration is a dispute between the vendor and the vendee, and the third party has no right to dispute the sale deed on the ground of inadequacy. In addition to it, as per Section 25 of the Indian Contract Act, an contract made out of love and affection did not require any consideration and furthermore, the said sale documents have been acted upon by Sh. Jeet Singh by way of execution of the sale deed Ex. Dw1/10 in favour of his wife Smt. Parmeshwari Devi. Therefore, on the ground of inadequacy of consideration, the sale deed (Ex.DW1/10) cannot be termed to be illegal per se. So far as the receipt (Ex.DW1/12) is concerned, the RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.29 of 45 same is registered document in whose favour a presumption is there that the same is executed as per law.
24. It may be also relevant to mention here that after execution of sale documents/receipt by plaintiff in favour of Sh.Jeet Singh. Plaintiff has no right to cancel the GPA (Ex.DW1/11)executed in favour of Sh.Jeet Singh by virtue of Section 202 of Indian Contract Act in as much as, a contract of agency cannot be terminated by the principle in respect of the property in which agent has interest. Otherwise also, if the remaining sale consideration had not been paid by Sh.Jeet Singh, for the sake of arguments, though not admitted, even then the plaintiff has only the right to recover the balance sale consideration from Sh.Jeet Singh and has no right to cancel the sale documents i.e. GPA, agreement to sell and the registered receipt. In this regard, though, no quoted reliance is placed upon the judgment Dahiben v. Arvindbhai Kalyanji Bhanusali, 2021(1) CLJ 397 SC, wherein, it has been observed as under :
"15.3 The Plaintiffs have made out a case of alleged non payment of a part of the sale consideration in the Plaint, and prayed for the relief of cancellation of the Sale Deed on this ground.
Section 54 of the Transfer of Property Act, 1882 provides as under :
"54. 'Sale' defined.--'Sale' is a transfer of ownership in exchange for a price paid or promised or partpaid and part promised." The definition of "sale" indicates that there must be a transfer of ownership from one person RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.30 of 45 to another i.e. transfer of all rights and interest in the property, which was possessed by the transferor to the transferee. The transferor cannot retain any part of the interest or right in the property, or else it would not be a sale. The definition further indicates that the transfer of ownership has to be made for a "price paid or promised or part paid and part promised". Price thus constitutes an essential ingredient of the transaction of sale.
In Vidyadhar v. Manikrao & Anr. (1999) 3 SCC 573 this Court held that the words "price paid or promised or part paid and part promised" indicates that actual payment of the whole of the price at the time of the execution of the Sale Deed is not a sine qua non for completion of the sale. Even if the whole of the price is not paid, but the document is executed, and thereafter registered, the sale would be complete, and the title would pass on to the transferee under the transaction. The nonpayment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground. In order to constitute a "sale", " the parties must intend to transfer the ownership of the property, on the agreement to pay the price either in praesenti, or in future. The intention is to be gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on record."
25. It may be noted that the ld. Trial Court has observed that Section 53A of the Transfer of Property Act enable the transferee to protect his possession but he cannot seek the possession of the suit plot. It was further observed that as Sh.Jeet Singh never became the owner of the said land, therefore, he was incapable of passing title in respect of about half of the said land (the suit property)in favour of his RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.31 of 45 wife Smt.Parmeshwari Devi. This observation is however not sustainable in the eyes of law in as much as a GPA holder is competent to act on behalf of the principal and furthermore, the plaintiff/PW3 has testified that she has cancelled the power of attorney/agreement to sell executed in favour of Sh.Jeet Singh through her counsel Sh.Gauri Shankar Mathur, vide Ex.PW3/9. However, the original postal receipt and UPC through which the sent notice was sent burnt on 15.301.2000 in fire. In crossexamination, she admitted that she cannot say whether any notice dated 26.03.1984 was sent to Sh.Jeet Singh or not.
26. From the deposition of PW3, it can be safely concluded that the legal notice canceling the sale document including the GPA (Ex. DW1/11) executed in favour of Sh.Jeet Singh, was never sent to Sh.Jeet Singh and, if the same was sent was not received by him. Therefore, Sh. Jeet Singh never received any notice regarding the cancellation of the GPA executed in favour by the plaintiff. In addition to it, as observed in foregoing paras of this judgment, plaintiff was not entitled to cancel the GPA by virtue of Section 202 of the Indian Contract Act, though not quoted reliance is placed upon Shashi vs Rajesh Kumari judgement passed in RSA No. 88/2017 by Hon'ble High Court of Delhi, wherein it has been observed as under :
"6. I may also note that once the documents Ex. PW1/1 to PW1/10 were executed by the mother Smt. Parvati in favour of the respondent's/plaintiff's husband then in law the mother had no rights to cancel documentation by RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.32 of 45 her alleged documentation dated 30.8.2012. A contract for transfer of rights in a property once entered into, cannot be unilaterally cancelled by the transferor in as much as a bilateral contract can only be cancelled by a bilateral contract, and therefore the unilateral act of the mother Smt. Parvati cannot result in cancelling of documents and contract of transfer of rights in an immovable property. As per Section 202 of the Indian Contract Act, 1872, a power of attorney given for consideration operates even after the death of a person, and which deceased person is the mother Smt. Parvati in this case and who had executed the power of attorney dated 29.3.2012 in favor of the husband of the respondent/plaintiff. This legal aspect of Section 202 of the Indian Contract Act has been considered by this Court in detail in the judgment in the case of Ramesh Chand vs. Suresh Chand and Anr. 188 (2012) DLT 538 wherein the relevant paras of the judgment of the Supreme Court in the case Suraj Lamps Industries Pvt. Ltd. Vs. State of Haryana, 183 (2011) DLT 1 SC were referred and it was held that the judgment in Suraj Lamps Industries Pvt. Ltd. (supra) case protects rights under agreements to sell falling within Section 53A of the Transfer of Property Act, 1882, power of attorneys falling under Section 202 of the Indian Contract Act, as also Wills which are executed. It is also held by this Court in the judgment in the case of Kamla Nijhawan Vs. Sushil Kumar Nijhawan and Ors., 2014 VIII AD (Delhi) 330 that when a Will is a part of the set of documents for transferring rights in an immovable property, the same has not to be classically proved like in a classic case of disputes between the natural legal heirs of a deceased testator. The first appellate court has rightly relied upon this judgment and rightly held that the trial court has wrongly distinguished the ratio of this judgment.
RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.33 of 45 The defendant purchased the suit plot from Sh.Hari Kishan, in whose favour Smt.Parmeshwari Devi had executed the sale documents as detailed in the foregoing paras. The ld. Trial court has observed that sale documents though not registered and therefore, the said sale documents cannot be stated to be sufficient to create any right, title or interest in favour of defendant by virtue of Section 53A of the Transfer of Property Act, taking into consideration the ratio law laid down by the Hon'ble Supreme Court in Suraj Lamp Industries (supra).
27. The said observation is also against the ratio of law laid down in Suraj Lamps (supra) in as much as in the above said judgment, the Hon'ble Supreme Court has protected the sale documents which are covered by Section 53A of TP Act on the principle of part performance. The sale documents including the agreement to sell executed on or before 24.09.2001 did not require any registration with payment of 90% of the stamp duty and after the amendment in Section 53A of the Transfer of Property Act w.e.f. from the above said date, the agreement to sell is required to be registered with 90% of the stamp duty so that the vendee can seek the benefit of Section 53A of TP Act. However, in the present case all the sale documents executed in favour of defendant are prior to 24.09.2001 therefore, viewed from any angle, it cannot be stated that the defendant is entitled to invoke the provisions of Section 53A of the Transfer of Property Act to protect the possession in as much as the defendant is not having the sale documents of the suit plot RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.34 of 45 executed in his favour by Sh. Hari Kishan, but also is having the possession of the suit plot. Therefore, defendant was entitled to seek the benefit of Section 53A of TP Act.
28. In this regard though not quoted reliance is placed upon Ashok Indoria v. Vidyawanti 2015 AIR (Delhi) 5 , wherein it has been observed as under: "8. It may be noted that Section 53A of the Transfer of Property Act, 1882 was amended by Act 48 of 2001 which came in to operation from 24.09.2001. Prior to the amendment there was no requirement of an agreement to sell in the nature of part performance to be stamped and registered. Therefore, once the documents being the agreement to sell, power of attorney etc are executed prior to 24.09.2001, the same can always be looked into for the purpose of Section 53A of Transfer of Property Act and Section 202 of the Contract Act, although these documents are not stamped and registered, and which requirements came into existence only after 24.09.2001. Accordingly, it is held that the first appellate court has committed a clear illegality and perversity in holding that the documents dated 31.01.2001 executed by the respondentdefendant in favour of the appellantplaintiff could not be looked into."
So is the ratio of Mukhinder Singh (supra) and Rajkumari (supra).
29. It may be relevant to note herein that the plaintiff has filed the suit for possession only without seeking cancellation of the other sale document as null and void despite having knowledge of RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.35 of 45 execution of such sale documents way back in the year 1982 or at least the year 1984 when she allegedly issued notice canceling the said GPA. The said sale documents cannot be stated to be void ab initio and observation made by the ld. trial court in this regard is not sustainable in the eyes of law in as much as the payment/part payment has been paid by Sh. Jeet Singh to plaintiff, which fact plaintiff failed to prove as discussed in the forgoing para of this judgment. Therefore, being voidable sale documents, the said documents are required to be cancelled before the plaintiff could seek the possession of the suit plot. Though not quoted reliance is placed upon Ganga Prasad Vs. Munna Lal & Ors. 2018, (126) ALR 681, wherein it has been observed as under.
73. In the case of Rankanidhi Sahu Vs. Nanda Kishore Sahu (Supra), relied by learned counsel for the appellant, it has been held that Article 59 of the Limitation Act applies when a suit is filed for cancellation or setting aside a document which is void ab initio. If a document is void ab initio and is an illegal document from very inception it is not required to cancel or set aside by filing a suit because according to law such a document does not exist. Same view was reiterated in the case of Smt. Sanghiran Vs. D.D.C.Meerut and others (Supra), that if the sale deed is void, question of getting it cancelled does not arise and no question of relief for getting the sale deed cancelled would be involved. There is no quarrel to the aforesaid proposition that Article 59 of Limitation Act may apply where the document is prima facie valid or is voidable. It would not apply to the instruments which are preemptly invalid or void ab initio."
RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.36 of 45
75. In the case of Hamida Begum alias Alo Bibi Vs. Umran Bibi & others (Supra), the Apex Court has held that there is no dispute that the suit was filed by virtue of the right created under Section 31 of the Specific Relief Act, 1963. The period of limitation of filing such suit is 03 years according to Article 59 of the Limitation Act. The time runs when the facts entitling the plaintiffs to have the instrument cancelled or set aside first become known to them. It has also held that if a party admits execution of a deed of transfer is vitiated by fraud either as to the contents or as to the nature of transaction, he is under obligation to file a suit under Section 31 of the Act for avoiding such transaction within the period of limitation provided in Article 59 of the Limitation Act. The Apex Court has also held that if a suit is not covered by any of the specific articles prescribing a period of limitation it must fall within the residuary article. Article113 (corresponding to Article 120 of the Act of 1908) is a residuary article for cases not covered by any other provisions of the Act. It prescribes a period of three years when the right to sue accrues. Same is the ratio of A. K. Sharma.
30. From the above discussion, it can be safely concluded that the plaintiff never cancelled the sale documents executed in favour of Sh.Jeet Singh, therefore, she can not claim possession of the suit plot without cancellation of such sale documents and defendant is entitled to retain the possession of suit plot on the basis of principle of part performance provided under Section 53A of the Transfer of property Act. These points of determination are decided in favour of the defendant and against the plaintiff.
RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.37 of 45 POINT OF DETERMINATION NO. (iv) : Whether the suit is barred by limitation.
31. Ld. Counsel for the plaintiff during the course of arguments had contended that the limitation for filing suit for possession is 12 years and the defendant has encroached upon the suit plot in the year 1991 and the suit has been filed within the period of limitation in 1993 as limitation for filing the suit for possession is 12 years.
32. Per contra, ld. counsel for the defendant has contended that plaintiff has executed the sale documents including the registered receipt in favour of Sh. Jeet Singh whereby the suit plot was transferred in the name of Sh. Jeet Singh in the year 1982 and the said documents, even it, void or voidable required to be declared null and void so that plaintiff could seek possession of the suit land either from Jeet Singh or the suit plot either from the defendant. The sale documents are very much in the knowledge of the plaintiff right from the day of execution of the same in the year 1982 but plaintiff has never cancelled those documents at any point of time in as much as the notice allegedly sent by plaintiff to Sh. Jeet Singh in the year 1984 has not been proved to have been served upon said Jeet Singh, Therefore, the period of limitation for filing the suit for declaration of the said documents is three years from the date of execution of the sale documents in favour of said Sh. Jeet Singh and RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.38 of 45 plaintiff failed to file the suit within the prescribed period of limitation, therefore, the suit is hopelessly barred by limitation.
33. It may be noted that no issue was framed regarding the maintainability of the suit being barred by limitation, however, the court is under a boundened duty to see whether the suit is filed within the period of limitation or not as per the mandate of section 3 of the limitation Act, 1963, which is reproduced as under :
"3. Bar of limitation (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. .........XXX"
34. A bare perusal of the said section depicts that even if, the point of limitation is not pleaded by the defendant in the written statement, the court is supposed to throw away a matter, if the same is barred by limitation. Therefore, this point of determination has been framed in this regard.
35. I have given my thoughtful consideration to the fact of case or cancellation of the sale documents admittedly executed by plaintiff in favour of Sh. Jeet Singh and the only relief which has been sought by the plaintiff, is for the possession of the suit plot without seeking any declaration. For the sake of repetition, it is hereby observed that plaintiff has not filed any declaration of the sale documents executed by the plaintiff in favour of Sh.Jeet Singh and RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.39 of 45 straightaway filed a suit for possession. The execution of the sale documents was very much in the knowledge of the plaintiff in as much as she has presented the cheque handed over supplied by Sh. Jeet Singh as a part and parcel of the sale consideration, however, the said cheques were allegedly dishonoured, but plaintiff, as observed, has not taken any legal proceedings in respect of those dishonoured cheques, therefore, the execution of the sale knowledge was very much in the knowledge of the plaintiff but plaintiff failed to challenged such sale documents.
36. Under Article 58 & 59 of the Limitation Act, the period of limitation for seeking the declaration or cancellation of documents is three years respectively. The period of limitation starts, when the right to sue accrues. The right to sue in case of declaration/cancellation of sale documents as null and void will be considered from the date from which the plaintiff would have come to know about the execution of such sale documents. It is not the case of the plaintiff that she was not having knowledge of the sale documents executed by her in favour of said Sh. Jeet Singh, therefore, she failed to challenge such documents within three years and, therefore, in any circumstances, it cannot be said that the suit of the plaintiff has been filed within the period of limitation. Though not quoted reliance is placed upon Dahiben (supra) wherein it has been observed as under:
14. The Limitation Act, 1963 prescribes a timelimit for the institution of all suits, appeals, and RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.40 of 45 applications. Section 2(j) defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suits, appeals or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article.
Articles 58 and 59 of the Schedule to the 1963 Act, prescribe the period of limitation for filing a suit where a declaration is sought, or cancellation of an instrument, or rescission of a contract, which reads as under :
Description of Period of Time from which
Suit Limitation period begins to run
To obtain any other Three years When the right to sue
declaration. Three first accrues
years
To cancel or set Three years When the facts entitling
aside an the plaintiff to have the
instrument or instrument or decree
decree or for the cancelled or set aside
rescission of a or the contract
contract rescinded first become
known to him.
The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years, which commences from the date when the right to sue first accrues."
37. The plaintiff failed to challenge the sale documents executed in favour of Sh.Jeet Singh by seeking declaration or cancellation of such sale documents within the period of three years RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.41 of 45 and without challenging such sale documents, therefore, the suit is barred by limitation. The plaintiff cannot be held entitled to seek possession of the suit plot as observed above in the foregoing paras of this judgment apart from the fact that the suit is barred by limitation. This point of determination is decided in favour of the defendant.
POINT OF DETERMINATION NO.(iii) : Whether defendant has been an ostensible owner of the suit property ?
38. Before deciding the real controversy between the parties as to whether plaintiff is bonafide purchaser and, therefore, entitled to seek the benefit of a bonafide purchaser on the basis of the principles of ostensible owner as provided, under Section 41 of the Transfer of Property Act, I would like to delve upon the basic per requisite of the principle of bonafide purchaser and the applicability to the case of the defendant thereof.
39. It may be noted that the Transfer of Property Act, 1882, was passed with the purpose of making transfer of property easier and makes it accessible to the population at large. This Act lays down certain general principles as to transfer of property which has to be followed. Transfer of property by an ostensible owner is a concept which was incorporated to protect the rights of innocent third parties visàvis the property owners, as per the ratio of law laid down in Ramcoomar Koondoo v. John and Maria McQueen, (1872) 11 Bengal LR 46, the decision which found its way to be codified as RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.42 of 45 Section 41 of the Transfer of Property Act. This doctrines seeks to protect the interests of innocent third parties.
40. Section 41 of the Act deals with ostensible owner and it has been defined as:
"Transfer by Ostensible Owner: Where, with the consent, express or implies, of the persons interested in immovable property, a person is the ostensible owner of such property and transfer the same for consideration, the transfer shall not be voidable on the grounds that the transferor was not authorized to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."
The section lays down certain requirements to avail the benefit of this section. They are:
I. The primary condition is that the person who is transferring the property should be ostensible owner.
II There should be consent form the real owner, which can be implied or express form.
III. The ostensible owner should get some consideration in return of the property.
IV. Reasonable care has to be taken by the transferee about the authority of transferor to the property and the transferee had acted in good faith.
V. It goes without saying that this section is applicable only to transfer of immovable property and not in case of movable property.
RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.43 of 45
41. As far as the burden of proof is concerned it is on the transferee to prove that the transferor was actually the ostensible owner and had the consent to sell the property and also he has to prove that he actually acted in good faith and had taken all reasonable care that was required from him while taking the property. This is because he has to prove that he was not at fault while taking the property and to shift the burden on the real owner. Alternatively, to shift his burden, he can also prove that the transferor did not allow the transferee to know the real facts and tried everything to suppress the facts.
42. Suffice is to say that Section 41 of the Act has done a fair job in protecting the interest of the innocent third party. Though this section may seem to be a bit biased towards the third party but this is mainly if the real owner is himself at some fault. No one can simply say that he has now acquired the property and he cannot be evicted now. The third party has to take a lot of care while purchasing the property and these necessary requirements has been put by law itself to check the misuse of this section by ostensible owner and the third party. This, in a way protects the interest of the real owner also.
43. So far as the question of title of the defendant of the suit property is concerned as observed above that plaintiff has sought possession without seeking cancellation of the sale document executed during the interregnum. Defendant had purchased the suit plot and mutation of the suit property was already entered in the RCA no. 29/2017 (54764/2016) Ganpat & Ors. v. Jameela Khatoon Page no.44 of 45 name of Smt. Parmeshwari Devi therefore, defendant as well as his pre decessor of defendant are entitled to the benefit of Section 41 of the Transfer of Property Act being ostensible owner. This point of determination is decided in favour of the defendants.
44. From the abovesaid discussion and findings recorded on the points of determination, it can be safely concluded that defendant has proved its title and possession over the suit plot being ostensible owner as well as owner by virtue of Section 53A of Transfer of Property Act. Therefore, the impugned judgment/decree as well as the impugned review order are hereby set aside. This appeal is allowed accordingly.
Trial court record be sent back along with copy of this judgment.
Decree sheet be drawn accordingly.
Appeal file be consigned to the record room.
Digitally
signed by
VIJAY VIJAY KUMAR
Announced and dictated on DAHIYA
KUMAR
23rd Day of May 2022. Date:
DAHIYA 2022.06.22
16:31:44
+0530
(V.K. DAHIYA)
ADDL. DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
RCA no. 29/2017 (54764/2016)
Ganpat & Ors. v. Jameela Khatoon
Page no.45 of 45