Delhi District Court
Ghirau vs B.L. Goel (Through Lr) on 28 January, 2021
IN THE COURT OF SHRI NARESH KUMAR LAKA
ADDITIONAL DISTRICT JUDGE - 03, SOUTH EAST,
SAKET COURTS, NEW DELHI
CS No. 7883/16
In the matter of:
Ghirau
S/o Sh. Algu
R/o H.No. 72, Village Pakardiha,
PO- Bhawari, Tehsil Bansi,
District- Siddharth Nagar, UP
Presently residing:
E-49, Sector-27,
NOIDA, Gautam Budh Nagar, UP
........ Plaintiff
versus
B.L. Goel (Through LR),
S/o Maman Chand Goel,
R/o H.No. 121/8,
Block-C, Main Road Madanpur,
Khadar Extension, New Delhi-110076
.........Defendant
Date of Institution : 21.09.2013
Final arguments concluded : 15.01.2021
Date of decision : 28.01.2021
Result : Decreed
SUIT FOR RECOVERY OF POSSESSION
DECLARATION, INJUNCTION AND DAMAGES
JUDGMENT
Suit in brief The present suit was filed by claiming that plaintiff is the owner of the property bearing Khasra No. 590/592, measuring 162 sq. yards, situated village Madanpur Khadar, abadi known as Madanpur Khadar Extension Part-II, CS No. 7883/16 Page No. 1 of 15 Kanchan Kunj, Tehsil Kalkaji, PO Sarita Vihar, New Delhi-110076 (hereinafter referred to as 'suit property') after purchasing from his relative, namely, Sh. Rohit Rawat on 17.12.2012 after execution of the documents. It is clarified that this property was initially 200 sq. yards but later on, it was partly acquired by the Irrigation Department twice and the area of suit property became 162 sq. yards only.
2. It is alleged that the boundary wall of the property was in deteriorated condition and asbestos sheets on the roof were also broken and same were got repaired by the plaintiff. It is averted that on 08.04.2013 when the plaintiff visited the suit property, he saw that the defendant and his two sons were trying to break open the lock of room and on inquiry the defendant threatened him with dire consequences and on being afraid, he left the spot and matter was reported to the police. It is further alleged that the chain of the title documents of plaintiff and the defendant are different and there is some foul play by the defendant to grab the suit property.
Defence in brief
3. On the other hand, the defendant contested the present suit and filed his written statement alleging that instant suit is a counter blast to a earlier suit filed by the defendant against the plaintiff which is pending before the Court of Civil Judge, Saket Court. The possession of plaintiff has been denied by the defendant on the premise that that he had purchased the suit property from Jitender Sharma vide various documents executed on 01.10.2010 and since then the defendant is in continuous possession thereof.
Replication, issues & trial
4. The plaintiff filed replication to the written statement of the defendant wherein the averments made in the plaint were reiterated/reaffirmed and the allegations of the defendant were controverted. During the course of trial, the defendant expired and his legal heir were brought on record but for the sake of convenience, the original defendant is being referred to hereinafter.
CS No. 7883/16 Page No. 2 of 155. From the pleadings of the parties, following issues were framed on 02.09.2015:
1. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD
2. Whether defendant is the owner of the suit property? OPD
3. Whether plaintiff was in settled possession of the suit property at the time of his alleged dispossession on 08.04.2013? OPP
4. Whether the plaintiff was illegally dispossessed by the defendant from suit property on 08.04.2013? OPP
5. Whether plaintiff is the owner of the suit property? OPP
6. Whether plaintiff is entitled to the relief of decree of possession as prayed for? OPP
7. Whether the plaintiff is entitled for decree of declaration as prayed for? OPP
8. Whether plaintiff is entitled to any damages, if so, at what rate and for which period? OPP
9. Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP
6. In order to prove its case, the plaintiff examined following witnesses:
(i) PW-1 Sh. Ghirau
(ii) PW-2 Sh. Satbir Singh Yadav
(iii) PW-3 Sh. Pramod Kumar
(iv) PW-4 Sh. Iqbal
(v) PW-5 Sh. Rohit Rawat
7. Likewise, the defendant examined the following witnesses:
(i) DW1 Sh. Yogesh Goel
(ii) DW-2 Sh. Birender
8. I have heard arguments from Mr. Alamgir, Ld. Counsel for the plaintiff and Sh. Praveen Kumar, Ld. Counsel for the defendant. Record perused.
REASONS FOR DECISION Issue No. 1: Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD
9. The onus to prove this issue was upon the defendant but the CS No. 7883/16 Page No. 3 of 15 defendant did not lead any evidence to prove that the present suit has not been properly valued by the plaintiff. The defendant also took a stand that the value of the suit property is not as per the circle rate but no such circle rate or the prevailing rate at the time of filing of the suit has been brought on record. On the other hand, the plaintiff has valued the suit for the purpose of court fee and jurisdiction and paid required court fees of Rs. 25700 which is found correct in the absence of contrary evidence and the discretionary right of the plaintiff to value the suit. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
Issue No.3. Whether plaintiff was in settled possession of the suit property at the time of his alleged dispossession on 08.04.2013? OPP And Issue No.4. Whether the plaintiff was illegally dispossessed by the defendant from suit property on 08.04.2013? OPP
10. The aforesaid issues are interconnected with each other and therefore they are being decided together. Both the parties are claiming their ownership right as well as possession in the suit property by relying on various chains of documents and other facts.
11. The evidence on the aspect of possession can be summarized as under:
1) It is the case of the plaintiff that he was in possession of the suit property which is a plot of 162 sq. yards in which one room was constructed and an iron gate was also installed and that the defendant and his associates forcibly broke open the lock/latches of the iron gate and dispossessed the plaintiff from the suit property. Towards the said incident, the plaintiff proved on record that he made a complaint to the police and consequently an FIR was registered bearing no. 351/13, dated 11.09.2013 by indicating the date of incident as 08.04.2013. The said factum shows the contemporary situation of the spot about the incident of trespassing.CS No. 7883/16 Page No. 4 of 15
2) The plaintiff also proved on record various photographs which clearly proved that the latches of the iron gate were broken by force which imply that the defendant was not having any key or previous possession that is why need arose the break open the gate and this fact strengthen the stand of the plaintiff about his previous possession int eh suit property.
3) The plaintiff has also examined one Mistry to show prior possession in the suit property, who deposed that he repaired/constructed extended boundary wall and also installed the iron gates. On the other hand, the Mistry examined by the defendant is not convincing because he deposed about the repairs made on the existing structure only.
12. In the light of aforesaid evidence, this court holds that the aforesaid facts established that the plaintiff was in settled possession of the suit property prior to defendant and he was forcibly and illegally dispossessed by breaking open his iron gate. The aforesaid issues are decided accordingly in favour of the plaintiff and against the defendant.
Issue No. 2. Whether defendant is the owner of the suit property? OPD And Issue No.5: Whether plaintiff is the owner of the suit property? OPP And Issue No.7: Whether the plaintiff is entitled for decree of declaration as prayed for? OPP
13. As far as ownership or title in an immovable property on the basis of registered sale deed is concerned, hardly any dispute arises. But disputes are invariably raised when ownership or title is claimed on the basis of standard set of documents, namely, the GPA/SPA, Agreement to sell, Will, Possession Letter, Receipt etc. An argument is frequently raised that after the judgment of the Hon'ble Supreme Court of India in the famous case of Suraj Lamp & CS No. 7883/16 Page No. 5 of 15 Industries (P) Ltd. v. State of Haryana, (2012) 1 SCC 656, no ownership right can be recognized without a registered sale deed. The ratio decendi of the said judgment and the legal interpretation of the aforesaid standard documents can be understand from the following series of judgments:
14. An SLP No.5804/2009 in the case of Suraj Lamp & Industries (P) v. State of Haryana & Anr was filed before Hon'ble Supreme Court of India. The facts of the said SLP were - 'A' claimed that 'B' had sold 2.5 acres of land in Gurgaon to 'A' by means of an Agreement to Sale, General Power of Attorney and a Will in the year 1991 for a consideration of Rs.716,695/-. Thereafter 'A' verbally agreed to sell a part of the said property to 'C' for Rs.60 lakhs in December 1996. But 'C', instead of proceeding with 'A', directly got in touch with 'B' in 1997 and got executed and registered a GPA in favour of C for the entire 2.5 acres of land and also illegally got cancelled the earlier GPA in favour of 'A'. In the year 2001, 'A' lodged a criminal complaint against 'B' and 'C'. When no action was taken, 'A' filed an RTI application to the police agency but finding contradictory replies, 'A' approached CIC and High Court and being aggrieved, he filed the above SLP before the Hon'ble Apex Court.
15. On 15.05.2009, Hon'ble Supreme Court observed that the matter involves an issue whose seriousness was underestimated and direction was given to the States of Punjab, Haryana, Delhi, Uttar Pradesh and Maharashtra to file a report about PoA-sale and the steps being taken or to be taken to deal with the chaotic situation and confusion arising from such transactions.
16. On 11.10.2011, in the aforesaid case 1, Hon'be Justices R.V. Raveendran, A.K. Patnaik and H.L. Gokhale, (three Judges Bench) of Hon'ble Apex Court passed inter alia the following order:
"Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of 1 Suraj Lamp & Industries (P) Ltd. v. State of Haryana, (2012) 1 SCC 656 CS No. 7883/16 Page No. 6 of 15 Sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject- matter.
A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. An attorney-holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.
Therefore, an SA/GPA/will transaction does not convey any title nor creates any interest in an immovable property. The observations by the Delhi High Court in Asha M. Jain v. Canara Bank [(2001) 94 DLT 841] , that the "concept of power-of-attorney sales has been recognised as a mode of transaction" when dealing with transactions by way of SA/GPA/will are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/will transactions are some kind of a recognised or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognise or accept SA/GPA/will transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law."
17. Soon after passing of the aforesaid judgment, a case, namely, Ramesh Chand v. Suresh Chand, came up for hearing before the Hon'ble Apex Court and after hearing the matter, it was remanded back to the High Court of Delhi for giving a fresh decision in view of the observations as made in the case of Suraj Lamp case (supra).
18. On April 9, 2012, Hon'ble Justice Shri Valmiki J. Mehta, High Court of Delhi decided the said case of Ramesh Chand v. Suresh2 and 2 RFA No.: 358/2000 decided on 09.04.2020, High Court of Delhi.
CS No. 7883/16 Page No. 7 of 15observed as under:
"2. Before I proceed to dispose of the appeal, and which would turn substantially on the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. (supra), it is necessary to reproduce certain paras of this judgment of the Supreme Court, which read as under:
"12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53A of Transfer of Property Act). According to Transfer of Property Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of Transfer of Property Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.
13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.
3. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will (para 14). Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will.
CS No. 7883/16 Page No. 8 of 154. There is also one other aspect which needs to be clarified before proceeding ahead and which is whether a power of attorney given for consideration would stand extinguished on the death of the executant of the power of attorney. The answer to this is contained in illustration given to Section 202 of the Contract Act, 1872, and the said provision with its illustration reads as under:
"Section 202. Termination of agency, where agent has an interest in subject matter.-- Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
Illustrations
(a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death."
The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney.
The summarization is that the documents which were executed by the father-Sh. Kundan Lal in favour of the respondent No. 1/plaintiff/son dated 16.5.1996 would not stricto sensu confer complete ownership rights, however, the said documents would create rights to the extent provided for by Section 202 of Contract Act, 1872 and ownership on account of devolution in terms of the Will after the death of the testator in terms of relevant provisions of Indian Succession Act, 1925. Of course, I hasten to add that so far as the facts of the present case are concerned, I am not giving the benefit of the doctrine of part performance under Section 53A of the Transfer of Property Act, 1882 to the respondent No. 1/plaintiff inasmuch as learned counsel for the appellant is correct in arguing that the benefit of the said doctrine cannot be given as the CS No. 7883/16 Page No. 9 of 15 physical possession of the property was not transferred to the respondent No. 1/plaintiff by the father-Sh. Kundan Lal under the agreement to sell dated 16.5.1996.
7. Accordingly, even if we do not give the benefit of Section 53A of the Transfer of Property Act, 1882 to the respondent No. 1/plaintiff, the respondent No. 1/plaintiff however would be entitled to benefit of Section 202 of the Contract Act, 1872 and the fact that ownership had devolved upon him in terms of the Will executed by the father in his favour on 16.5.1996. The argument urged on behalf of the appellant by his counsel that power of attorney, Ex. PW 1/6 ceased to operate after the death of the father is an argument without any substance in view of the provision of Section 202 of the Contract Act, 1872 alongwith its illustration and which shows that power of attorney given for consideration operates even after the death of the executant.
12. In view of the aforesaid facts and the validity of the documents, being the power of attorney and the Will dated 16.5.1996, the respondent No. 1/plaintiff would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the appellant/defendant No. 1. In fact, I would go to the extent saying that by virtue of para 14 of the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) taken with the fact that Sh. Kundan Lal has already died, the respondent No. 1/plaintiff becomes an owner of the property by virtue of the registered Will dated 16.5.1996. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof."
19. Now coming to the facts of the present case, it is seen that documents placed on record by both the parties are not registered as per the Section 17 of the Indian Registration Act, 1908 and legally speaking they do not confer any absolute ownership or title upon the parties. However, this court is required to decide the present suit not only on the point of ownership alone but on the basis of established principle of 'better title/claim theory'. Moreover, apart from the ownership rights, there are various other implicit interest or rights, which are though not in the nature of absolute ownership but they attribute or attach certain rights in respect of the immovable property especially CS No. 7883/16 Page No. 10 of 15 the negative rights against the seller/transfer/previous owner.
20. To be specific, Section 53-A of the Transfer of Property Act, 1882 provides that if a person enters into an agreement to sell for buying an immovable property and pay part or full consideration amount after taking possession of the such property, the transferor or any person claiming through him is debarred from claiming any right or seek possession of such property from the transferee except for claiming the reliefs as per the terms of the agreement. Thus the transferor has limited right of seeking cancellation of such agreement or refund of the amount or damages which is not the case herein.
21. Likewise, although a General Power of Attorney (GPA) does not confer any absolute right and title upon an attorney but it generally gives an authority to the agent to get a sale deed executed or registered in his name or in the name of any other person and if such document, is executed after payment of consideration amount to the principal by the agent, it cannot be revoked or canceled by the principal as per Section 202 of the Indian Contract Act, 1872. In that sense, said document also confers some negative rights of the principle though not absolute rights in favour of agent. A will is also a valuable document if the testator of the will dies without revoking it thereby bequeathing the assets of the testator in favour of his beneficiary.
22. In the light of aforesaid peculiar rights, the better title/claim of the parties are required to be decided and the parties cannot be left remedy-less by ignoring such valuable documents. It is also an established principle of law that while deciding the civil suits, the principle of preponderance of probabilities applies and in the instant case, it is required to be seen as to which party produced the best evidence or better evidence in comparison to other party to arrive at just decision of the case. Keeping in mind these principles, this court holds that the plaintiff succeeded in proving his case in view of the following facts and circumstances:
CS No. 7883/16 Page No. 11 of 15(i) Both the parties are claiming their ownership right in the suit property. The plaintiff has filed the present suit to prove the said aspect by specifically claiming the relief of declaration whereas the defendant had filed earlier a suit for injunction only but it was withdrawn by him without seeking declaration. It indirectly shows that the defendant had no case and that is why he did not claim the same in the previous suit or in the present suit by filing the counter-claim.
(ii) In order to prove his case, the plaintiff examined various witnesses which include the executant or witnesses of various previous chains of documents whereas the defendant did not examine even a single witness of his alleged chain of documents.
However, Sh. Yogesh, son of the defendant examined himself as DW-1, but his evidently value is in great doubt because of the fact that he was not a witness to the documents which were executed in favour of his father/defendant. This is proved from the fact that the copies of the documents (allegedly executed on 01.10.2010) which were placed on record on behalf of the defendant on 21.03.2014 do not show the name of Yogesh or his signature on any such document whereas his signatures were shown in the original documents (the same are compared after summoning the file of the criminal court). These facts prove that initially the son of the defendant was not a witness and he appended his signatures on the original documents subsequently and as such his evidence is not trustworthy or reliable. In the absence of examination of any other attesting witness or executant, none of the documents of the previous chain, as relied on behalf of the defendant has been proved on record.
(iii) From the chronological events of the execution of various chains of documents, it is seen that the documents of the plaintiff CS No. 7883/16 Page No. 12 of 15 were executed prior in time.
(iv) From the chain of documents as relied by the plaintiff, it is also seen that huge consideration amount was paid at some point of time through banking mode whereas there is none of the document of the defendant where consideration amount was ever paid through banking mode.
(v) The plaintiff has also specifically demonstrated the area as 162 sq. yards of the suit property by acquisition of some area by the Irrigation Department whereas the documents of the defendant show area of 200 sq. yards without any explanation in the WS.
23. In the light of the aforesaid evidence, this court holds that the plaintiff succeeded in proving his better title/claim in comparison to the claim of the defendant. Consequently, it is held that the plaintiff is the purported owner of the suit property and the defendant has no right therein. These issues are accordingly decided in favour of the plaintiff and against the defendant.
Issue No.6. Whether plaintiff is entitled to the relief of decree of possession as prayed for? OPP
24. In view of my findings on the aforesaid issues, especially the settled possession and purported ownership of the plaintiff, he is entitled for recovery of possession of the suit property from the defendant. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
Issue No.8. Whether plaintiff is entitled to any damages, if so, at what rate and for which period? OPP
25. In the light of findings on the previous issues, this court grants a reasonable amount of Rs.3,000/- per month for unauthorized occupation from the date of unlawful dispossession i.e. 08.04.2013 till the date of delivery of CS No. 7883/16 Page No. 13 of 15 possession to the plaintiff. This issue is accordingly decided in favour of the plaintiff and against the defendant.
Issue No. 9. Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP
26. In view of my findings of the other issues in favour of the plaintiff, the plaintiff is also entitled for a decree of permanent injunction against the defendant. This issue is decided accordingly in favour of the plaintiff and against the defendant.
Conclusion/relief
27. In view of my aforesaid findings, the suit of the plaintiff is decreed in his favour and against the defendant as under:
i) A decree of declaration is passed by holding that plaintiff is the purported owner of the suit property or has better title of the claim from the defendant.
ii) A decree is passed for delivery of the suit property to the plaintiff by the defendant within 30 days.
iii) A decree of permanent injunction is passed thereby defendant and his agents are restrained to create third party interest in the suit property by any recognized mode of transfer, raising construction or parting with its possession.
iv) A decree of damages is also passed in favour of the plaintiff and against the defendant for the amount of Rs.3,000/-
per month from the date of dispossession of the plaintiff i.e. 08.04.2013 till the date of delivery of possession of the suit property to the plaintiff.
v) There is no order as to interest.
vi) Cost of suit is also awarded to plaintiff as per rules, which
CS No. 7883/16 Page No. 14 of 15
will include the entire costs of Ld. Local Commissioner, if any, payable by the defendant.
28. Decree sheet be drawn accordingly. File be consigned to record room after due compliance.
Announced & dictated in the open court on 28.01.2021 (Naresh Kumar Laka) Additional District Judge-03 South East District, Saket Courts, New Delhi.
CS No. 7883/16 Page No. 15 of 15