Delhi District Court
Sh. Abdul Latif Ansari vs (1) Smt. Allah Rakhi on 15 July, 2014
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
IN THE COURT OF SH. GORAKH NATH PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
CS No. 70/14
Case I.D. Number : 02402C0368832009
IN THE MATTER OF :
Sh. Abdul Latif Ansari
S/o Sh. Abdul Aziz Ansari
R/o Nau Ganwa Sadat, Nai Basti,
Distt. Jyotiba Phule Nagar, U.P. ........ Plaintiff
VERSUS
(1) Smt. Allah Rakhi
W/o Sh. Abdul Sattar
H. No. C 337, Main Road,
Mulla Colony, Near Subhania Masjid,
Gharoli Extn., Delhi110096.
(2) Sh. Raees Ahmed Ansari
S/o Sh. Abdul Rasheed.
(3) Smt. Roshan Jehan
W/o Sh. Raees Ahmed
Both H. No. 373, Gali No. 2,
Near Ashrafia Masjid,
Main Kardampuri,
Delhi 110054. ......Defendants
CS No. 70/14 page 1 of 34
Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Date of Institution of suit : 18.12.2009
Received in this Court : 27.01.2014
Date of argument : 11.07.2014
Date of Judgment/Order : 15.07.2014
Decision : Suit is decreed
Suit for declaration with consequential relief of possession,
mandatory and permanent injunction
.
J U D G M E N T
1. The plaintiff filed this suit for declaration, possession, mandatory and permanent injunction against the defendants regarding property bearing H. No. C337, Main Road, Mulla Colony near Subhania Masjid, Gharoli Extention Delhi96 measuring 20 Sq. Yards ( hereinafter called the suit property) as shown red colour in the site plan Ex. PW1/1.
2. Briefly stated the plaintiff's case is that he had purchased the suit property No. C337, Main Road, Maulla Colony, Gharoli Extention, Delhi from defendant No. 2 on 10.07.2008 vide a receipt Bayana of Rs. 50,000/, further a receipt for balance sale consideration of Rs. 2,50,000/ dated 03.09.2009. Defendant No. 2 delivered the physical possession of the suit property to the plaintiff at the spot. It is alleged that after 10.07.2008 i.e. payment of Bayana amount of Rs. 50,000/, defendant No. 2 had attempted to create a third party interest in the suit property. Therefore CS No. 70/14 page 2 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. plaintiff had filed a suit No. 450/08 before Sh. M. P. Singh, Ld. Civil Judge. Defendant No. 2 gave an undertaking that he will not create third party interest in the suit property.
3. It is alleged that although plaintiff had taken physical possession of the suit property from defendant No. 2 but formal sale papers were yet to be executed by defendant No. 2. In the month of September, 2008, the eye of the plaintiff was operated and plaintiff stayed at his native place for about one month. In absence of plaintiff, defendant No. 1 damaged the shop. Plaintiff made a complaint to the police at police station Ashok Vihar on 11.10.2008. Plaintiff also filed a suit No. 176/2008 but during the pendency of the said suit, defendant No. 1 took the forcible possession of the suit property and even the shape of the suit property was changed. Therefore the said suit was dismissed being infructous.
4. It is alleged in the plaint that the defendant No. 1 claims himself to be the owner of the suit property on the basis of an agreement to sell dated24.09.2008. It is further stated that defendant No. 2 and 3 are under legal obligation to rescind and cancel the agreement to sell dated 24.09.2008, which has been executed in favour of defendant No. 1 and by which defendant No.1 had paid earnest money in the sum of Rs. 50,000/. It is stated that defendant No. 2 had already received full consideration from the plaintiff qua the suit property.
5. Plaintiff, therefore, prayed for a declaration that plaintiff is the CS No. 70/14 page 3 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. bonafide purchaser of the suit property. He also prayed that a decree of possession of the suit property and sought an injunction restraining defendant No. 1 from creating third party interest in the suit property and further praying that defendant No. 2 and 3 be restrained from executing the sale deed etc. of the suit property in favour of defendant No. 1 on the basis of agreement to sell dated 24.09.2008. It is further prayed that defendant No. 2 may be directed to execute sale deeds in favour of plaintiff qua the suit property.
6. In written statement, defendant No. 1 stated that suit has been filed by the plaintiff in collusion with defendant No. 2 and 3. He stated that defendant No. 1 is the owner of the suit property since 05.03.2008 and annexed copies of GPA, agreement to sell, will, receipt, possession letter and affidavit of dated 05.03.2008 and a copy of water bill dated 08.09.2008 as well as copies of the cash challan of property tax etc. It is clarified in written statement that defendant No. 2 has sold 40 Sq. Yards portion to defendant No. 1. Beside the said portion, there is 20 Sq. yds. Property/gallery. It is alleged that defendant No. 2 executed an agreement to sell dated 24.09.2008 with defendant No. 1 in respect of the said gallery for a consideration of Rs. 4 lacs and he received Rs. 50,000/ as earnest money from defendant No. 1. It was agreed between defendant No. 1 and 2 that balance amount of Rs. 3,50,000/ shall be paid by defendant No. 1 to him after 15 days from the decision of the court.
CS No. 70/14 page 4 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. However, later on the possession of the said property was handed over to defendant No. 1 by defendant No. 2. It is alleged that since there is collusion between plaintiff and defendant No. 2, all the documents executed by defendant No. 2 in favour of the plaintiff are bogus and same were prepared just to be used against defendant No. 1. He denied that physical possession of the suit property was delivered by defendant No. 2 to plaintiff. It is further submitted that in fact plaintiff had been never in possession of the suit property.
7. Defendant No. 2 and 3 filed their written statement stating therein that defendant No. 2 was owner of the property No. C337, total measuring 60 sq. yds. Out of said 60 sq. yds. Defendant No. 2 had sold a portion of 40 sq. yds to defendant No. 1 and subsequently sold the remaining portion of 20 sq. yards i.e. the suit property to the plaintiff. They further stated that they are ready to make a formal sale deed in favour of plaintiff qua the suit property. It is further stated that defendant No. 2 had already sold the said portion of 20 sq. yards of the suit property to the plaintiff and its possession was also delivered to the plaintiff. Defendant No. 2 and 3 stated in their written statement that the agreement dated 24.09.2008, purported to have been executed by defendant No. 2 in favour of defendant No. 1, is forged, fabricated and procured document.
8. Replication was filed by the plaintiff to the written statement of defendant No.2 and 3 and a separate replication to the written statement CS No. 70/14 page 5 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. of defendant No. 1. By way of the replication, the plaintiff reiterated the averments mentioned in the plaint while denying the contentions of the defendant No. 1 in the written statement.
9. In view of the pleading of the parties, following issues were framed vide order dt. 04.12.10:
(i) Whether the suit of plaintiff is liable to be dismissed under order 2 Rule 2 of PC? (OPD 1)
(ii) Whether the plaintiff has not paid the proper court fee?( OPD
1)
(iii) Whether the plaintiff has filed the present suit in collusion with the defendant No. 2 and 3?( OPD 1).
(iv) Whether the plaintiff had purchased the suit property measuring 20 Sq. yards consisting of one shop and open space in premises No. C337, Main Road, Mulla Colony, Gharoli Extension, Delhi from defendant No. 2 and had also got its possessions?(OPP).
(v) Whether defendant No. 1 had taken possession of the suit property illegally?( OPP).
(vi) Whether defendant No. 1 had purchased the suit property and had taken its possession since 05.03.08?( OPD 1).
(vii) Whether the documents executed by defendant No. 2 in favour of plaintiff are bogus having been prepared in collusion with each other to defeat the rights of defendant No. 1?( OPD 1).
CS No. 70/14 page 6 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
(viii) Whether the agreement dt. 24.09.08 relied upon by defendant No. 1 is a fabricated document?( OPD 2 & 3).
(ix) Whether the plaintiff is entitled to a decree of declaration as prayed in the plaint?( OPP).
(x) Whether the plaintiff is entitled to a decree of possession as prayed in the plaint?( OPP).
(xi) Whether the plaintiff is entitled to a decree of specific performance against defendant No. 2 as prayed in the plaint?( OPP).
(xii) Whether the plaintiff is entitled to mandatory and permanent injunction as prayed in the plaint?( OPP).
(xiii) Relief.
(xiv) Costs.
The case was thereafter fixed of Plaintiff's Evidence.
10. Plaintiff examined two witnesses i.e. himself as PW 1 and Sh. Raees Ahmad Ansari as PW2. PW 1/plaintiff has filed his affidavit by way of evidence Ex. PW1/A and deposed regarding the case. The witness has deposed nothing but the averments made in the plaint. The witness has also deposed regarding the relevant documents i.e. Site Plan Ex. PW 1/ 1, receipts of the sale consideration Ex. PW 1/ 2 and1/ 3, certified copies of the plaint Ex.PW1/4, copy of the DD No. 19 B Ex. PW1/5, certified copy of the plaint along with order dated 01.10.2009 Ex. PW1/6 and certified copy of agreement dated 24.09.2008 Ex. PW1/7.
CS No. 70/14 page 7 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. Mr. Raees Ahmad Ansari/defendant No. 2 was summoned and examined as PW2 who deposed that he knows the plaintiff and defendant No. 1 and proved his written statement Ex. PW2/1. The witness deposed that he was the owner of the property measuring 60 Sq. Yards bearing No. C337, situated at Mulla Colony, near Subhania Masjid Gharoli Extension, Delhi110096 and Out of the said property he had already sold the property measuring 40 Sq. Yards to the defendant No. 1 and the remaining portion of the said property measuring 9 X 20 Sq. Feet was sold by him to the plaintiff. The witness further deposed that he has handed over the physical possession of the respective portions of the said property to the plaintiff as well as defendant No. 1 at the spot.
As no other witness remained to be examined by the plaintiff, the PE was closed and the case was fixed thereafter defendant's evidence.
11. Defendant No. 1/Smt. Allah Rakhi has filed her evidence by way affidavit Ex. DW1/A and examined herself as DW1. The witness has deposed regarding the contentions as mentioned in the written statement and deposed regarding the relevant documents i.e. Copies of GPA, Agreement to Sell, will receipt, possession letter and affidavit all dated 05.03.2008 EX. DW1/1 to Ex. DW1/6, copy of water connection Ex. DW1/7, copy of cash challan Ex. DW1/8, photographs Ex. DW1/9 to DW1/13, copy of agreement dated 24.09.08 Ex. DW1/4, site plan Ex. DW/5, Copy of FIR No. 138/07 and FIR No. 224/08 Mark A and B CS No. 70/14 page 8 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. respectively and copy of complaint dated 15.07.08 Mark C. The defendant No. 1 further examined Mr. Ahmed Sayeed as DW2 and Mr. Babu Khan as DW3 in support of contentions. These witnesses deposed nothing but as deposed by DW1. As no other witness remained to be examined by the defendant No. 1, DE was closed.
12. I have heard the Ld. counsel for the parties and gone through the relevant materials on record. I have also gone through the written submissions filed by defendant No. 1 and considered the relevant provisions of law.
13. Having drawn my attention to the pleadings of the parties, testimony of witnesses and materials on records, it is submitted by learned counsel for the plaintiff that plaintiff has proved his case and the defendant No. 1 have no right, title or interest in the suit property and it has been proved that the plaintiff is the owner of the suit property. It is argued that the defendant No.1 has trespassed in the suit property without any right. The Ld. Counsel for the plaintiff prayed to pass decree in favour of plaintiff and against the defendant No. 1
14. The Ld. Counsel for the defendant No. 1 on the other hand, having drawn my attention to the testimony of the witnesses and documents on records submitted that the plaintiff has failed to prove the case and discharge the onus. It is argued that the plaintiff has filed this suit in collusion with defendant No. 2 and 3 without any right, title or CS No. 70/14 page 9 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. interest, this suit is false. It is also submitted by Ld. counsel for the defendant No. 1 that the suit property was purchased by the defendant No. 1 and possession of the same was handed over by the defendant No. 2, plaintiff has no locus standi to file this suit and plaintiff has concealed the material facts and therefore, the suit is liable to be dismissed. The Ld. Counsel for the defendant No. 1 prayed to dismiss the suit with cost.
15. I have given my thoughtful consideration to the submissions made on behalf of the parties. My findings issuewise are as under : Issue No. I, II & III
(i) Whether the suit of plaintiff is liable to be dismissed under order 2 Rule 2 of PC? (OPD 1)
(ii) Whether the plaintiff has not paid the property court fee? ( OPD 1)
(iii) Whether the plaintiff has filed the present suit in collusion with the defendant No. 2 and 3?( OPD 1).
16. The onus to prove these issues was upon the defendant No. 1. It appears that the defendant No. 1 failed to prove these issues and discharge the onus as there is nothing on record except their bald averments in support of the contentions. These issues are decided against the defendant No. 1 and in favour of the plaintiff.
CS No. 70/14 page 10 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. ISSUE No. IV, V, VI, VII & VIII
(iv) Whether the plaintiff had purchased the suit property measuring 20 Sq. yards consisting of one shop and open space in premises No. C337, Main Road, Mulla Colony, Gharoli Extension, Delhi from defendant No. 2 and had also got its possessions?(OPP).
(v) Whether defendant No. 1 had taken possession of the suit property illegally?( OPP).
(vi) Whether defendant No. 1 had purchased the suit property and had taken its possession since 05.03.08?( OPD 1).
(vii) Whether the documents executed by defendant No. 2 in favour of plaintiff are bogus having been prepared in collusion with each other to defeat the rights of defendant No. 1?( OPD 1).
(viii) Whether the agreement dt. 24.09.08 relied upon by defendant No. 1 is a fabricated document?( OPD 2 & 3)
17. As all of these issues i.e. regarding purchase of the suit property measuring 20 Sq. Yards consisting of one shop and open space in premises No. C337, Main Road, Mulla Colony, Gharoli Extension, Delhi by the plaintiff or defendant No. 1 from the defendant No. 2 and the subsequent taking over of the possession by the plaintiff or the defendant No. 1 along with execution of the documents by the defendant No. 2 in favour of the plaintiff or the defendant No. 1 are interconnected, all of CS No. 70/14 page 11 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. these issues are examined and adjudicated together. The onus to prove these issues was both on the plaintiff and defendant No. 1 as per their contentions in the pleadings.
18. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for partition, this suit is to be decided on the basis of preponderance of probabilities. In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe that "A civil case is decided on balance of probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a CS No. 70/14 page 12 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
19. Section 101 of the Evidence Act, 1872 defines " burden of proof"
and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
20. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn. In view of this legal position of the Evidence Act, it is clear that it is for the defendant No.1 to prove that she CS No. 70/14 page 13 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. has purchased the suit property from defendant no. 2 and received the possession.
21. It is argued by Ld. Counsel for the defendant No. 1 that this suit of the plaintiff is not maintainable and by way of this suit the plaintiff is seeking the relief of declaration regarding ownership of the suit property. This contention of Ld. Counsel for defendant No. 1 is not sustainable as the plaintiff has sought the relief of declaration itself regarding the suit property being bona fide purchaser having purchased from defendant No.
2. I have also gone through the judgment of Hon'ble Supreme Court reported as AIR 2008 SC 2033. The ration of the judgment is squarely applicable in the facts of this case. The suit of the plaintiff is therefore maintainable.
22. The Ld. Counsel for the defendant No. 1 further argued that on the basis of the documents Ex. PW1/2 and Ex. PW1/3, the plaintiff cannot be considered as owner or cannot purchase the suit property. The submission have no basis. It is appropriate and relevant to note the relevant legal provisions and authorities for proper examination and adjudication of the issues.
Section 5 of the Transfer of Property Act, 1882 ( ' TP Act' for short) defines ' transfer of property' as under: " 5. Transfer of Property defined: In the following sections " transfer of property " means an CS No. 70/14 page 14 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself 9 for to himself) and one or more other living persons; and " to transfer property"
is to perform such act." XXX XXX Further Section 54 of the TP Act defines ' sales' thus :
" Sale" is a transfer of ownership in exchange for a price paid or promised or partpaid and part promised.
Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale. A contract for the sale of CS No. 70/14 page 15 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property."
Section 53 A of the TP Act defines ' part performance ' thus :
" Part Performance. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
And the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and had done some act in furtherance of the contract.
And the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been CS No. 70/14 page 16 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
completed in the manner prescribed therefor b the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
Section 17 of the Indian Registration Act, 1908: " 17. Documents of which registration is compulsory. (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866 ( 20 of 1866), or the Indian Registration Act, 1871 ( 8 of 1871), or the Indian Registration Act, 1877 ( 3 of 1877), or this Act came or comes into force, namely CS No. 70/14 page 17 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
(a) Instrument of gift of immovable property;
(b) other nontestamentary instruments which purport or operate to create, declare, assign, limit or extinguish , whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
23. 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 Hon'ble Supreme Court in re Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, reported as 183 (2011) DLT 1 (SC) 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).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.
CS No. 70/14 page 18 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. 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.
24. It is settled that ownership and possession are two entirely different concepts. It necessarily follows that it is not only possible but also permissible to transfer one without the other. In simple words it is permissible to transfer ownership without transferring possession. Similarly, it is also possible to transfer possession without transferring ownership. It is relevant to note here that in this case the defendant No. 2 agreed to sell the suit property to the plaintiff and consequently handed over the possession to the plaintiff in pursuance of the provisions of the Transfer of Property Act. The plaintiff has therefore right, title and interest in the suit property.
25. This Court is conscious of the judgment of the Hon'ble High Court in the case of Sh. Ramesh Chand Vs. Suresh Chand reported in 188 (2012) DLT 538 in which the judgment in the case of Suraj Lamps (supra) was interpreted. In the case of Ramesh Chand (supra) the Hon'ble Delhi High Court was pleased to hold that right to possess immovable property arises not only from a complete ownership right but also by having a better CS No. 70/14 page 19 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. title. The judgment is squarely applicable in the facts of this case.
26. There is no dispute or denial of the ownership of the defendant No.
2. The plaintiff and the defendant No 1 claimed right, title or interest in the suit property only through the defendant No. 2. the plaintiff in support of contention placed on record the agreement Ex. PW 1/ 2 and PW 1/ 3 and also relied upon the statement of defendant No. 2. The defendant No. 2 supported the case of plaintiff and denied having executed any agreement to sell regarding the suit property in favour of defendant No. 1. the defendant no. 2 further mentioned that agreement to sell relied by defendant No. 1 is forged and fabricated.
The facts mentioned in the pleadings of the parties has been mentioned at the outset. The site plan of the suit property is Ex. PW1/1. It is admitted that defendant No. 2 was the original owner. Both the plaintiff and the defendant No. 1 are claiming their right, title and interest in the suit property through defendant No. 2 only. It is also not in dispute that out of total 60 sq. yards of defendant No. 2, the 40 sq. yards was purchased by the plaintiff on 05.03.2008. The dispute in this case is regarding the remaining 20 sq. yards which is claimed by the plaintiff as well as the defendant No. 1 being purchased from defendant No. 2. Admittedly, the defendant No. 1 is in possession of the suit property. The defendant No. 2 has supported the case of the plaintiff by way of the written statement as well as his examination as PW2 .
CS No. 70/14 page 20 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. As contended by the plaintiff, the suit property was purchased by him from defendant No. 2 on 10.07.2008 and paid the earnest money vide receipt Ex. PW1/2 and remaining consideration vide receipt Ex. PW1/3 dated 03.09.08. The possession of the suit property was also handed over to the plaintiff. On 11.10.08 the plaintiff found from returning his village, the defendant No. 1 in possession of the suit property and made complaint vide DD No. 19 B dated 11.10.08 at PS New Ashok Nagar vide Ex. PW1/5. One suit was also filed by the plaintiff against defendant No. 2 for restraining him from creating third party interest between the two payments by him i.e. 10.07.08 and 03.09.08. The defendant No. 1 on the other hand entered into agreement to sell with defendant No. 2 regarding the suit property on 24.09.2008 and paid the earnest money and agreement is Ex. DW1/4. As stated the defendant No. 2 and 3 are not concerned with the suit property and claimed the agreement dated 24.09.2008 as forged and fabricated.
27. The plaintiffs by way of this suit have prayed to declare as bona fide purchaser, decree of possession regarding the suit property, decree of mandatory injunction directing not to create third party interest and directing the defendant No. 2 to execute sale documents in his favour. In the background of these facts and claim of the respective parties, the above mentioned issues are to be examined and adjudicated.
28. The evidence of the parties led before this Court is somehow on the CS No. 70/14 page 21 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. similar lines as contended in the plaint and written statement. The plaintiff/PW1 supported his contention during his crossexamination and also proved the relevant documents. The execution of the receipts of Ex. PW1/2 and Ex. PW1/3 dated 10.07.08 and 03.09.08 and receiving of the consideration is also admitted by the defendant No. 2. The statement of defendant No. 2 and plaintiff was recorded by Ld. Civil Judge in the suit filed by the plaintiff against defendant No. 2 for permanent injunction on 12.08.2008 which is reproduced below: Statement of Defendant No.2: " I say that I am the defendant in the present suit. I say that I shall not create any third party interest in the suit property bearing No. C337, Main road, Mulla Colony, Near Subhania Masjid, Gharoli Extension, Delhi110096 measuring 20 Sq. yards consisting one shop and open space till 09.09.2008 that is the stipulated period of my agreement entered with the plaintiff dated 10.07.2008 as per the receipt bayana exhibited as Ex. CW1. Site plan is exhibited as Ex. CW2, suit property is shown in red colour. It is my true statement and I shall be bound by the same." Statement of plaintiff: " I say that I am the plaintiff in the present suit. I say that I shall pay the balance amount of Rs. 2,50,000/ against the CS No. 70/14 page 22 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. total consideration of Rs. 3,00,000/ to the defendant as sale consideration of the suit property in view of the bayana receipt Ex. CW1 up to 09.09.2008. If I fail to make the payment of said balance sale consideration to the defendant within the stipulated period I shall vacate the suit property and I shall have no objection if my earnest money forfeited. Is is my true statement and I shall be bound by the same." The Ld. Civil Judge vide his order dated 12.08.08 disposed the suit vide following order: Present: Counsel for the plaintiff along with plaintiff.
Counsel for the defendant alongwith defendant.
Matter has been amicably settled between the parties. Statement of the parties has been recorded. In terms of the settlement the plaintiff is to pay the balance consideration of Rs. 2,50,000/ on or before 09.09.2008. However, if there is failure on the part of the plaintiff to pay this balance consideration amount, the plaintiff has undertaken to vacate the same and further that the defendant would be at liberty forfeit his earnest money. On the other hand the defendant has undertaken not to create any third party interest in the suit property till CS No. 70/14 page 23 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
09.09.08. Parties are remain bound by their statement. Suit of the plaintiff is disposed of as settled. File be consigned to record room after due compliance.
The above said statement of the plaintiff and defendant No. 2 was recorded on 12.08.2008 before Ld. Civil Judge i.e. well before the alleged agreement dated 24.09.08 entered between the defendant No. 1 and defendant No. 2 as relied by defendant No. 1. The said suit filed by the plaintiff for permanent injunction was disposed off vide order dated 12.08.2008 of Ld. Civil Judge. The plaintiff has complied the said order of Ld. Civil Judge and accordingly Ex. PW1/3 was executed by the defendant No. 2 in his favour before the alleged agreement dated 24.09.2008 of defendant No. 1. The defendant No. 2 undoubtedly was bound by his statement dated 12.08.08 wherein he undertook not to create any third party interest in the suit property till 09.09.08. Therefore, any agreement including the alleged agreement entered by the defendant No. 2 with defendant No. 1 dated 24.09.08 is null and void and is of no consequence. It is reiterated that the defendant No. 2 admitted the receipt of the consideration amount. The claim of the defendant No. 1 therefore regarding the agreement dated 24.09.08 with defendant No. 2 is not helpful and defendant No. 1 cannot rely on any such agreement. In the document Ex. PW1/2 dated 10.07.2008 itself it is mentioned that the possession of the plot and shop have been given to the plaintiff by the CS No. 70/14 page 24 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. defendant No. 2 and the defendant No. 2 was under obligation to execute the sale documents after payment of remaining consideration till 09.09.08. The contentions of the plaintiff therefore appears to be true and correct regarding the transaction dated 10.07.08 and as the defendant No. 2 tried to create third party interest after agreement with plaintiff, he filed the suit for permanent injunction, statement of the parties were recorded including undertaking of defendant No. 2; the plaintiff paid the remaining consideration on 03.09.08 and Ex. PW1/3 was executed. Even in view of Ex. PW1/3 the defendant No. 2 undertook to execute the sale papers in favour of the plaintiff as called by him. In view of the documents Ex. PW1/2, Ex. PW1/3, Ex. PW1/4 , it is categorically proved that defendant No. 2 entered into agreement for sale and received the amount from the plaintiff and handed over the possession of the suit property to him. Therefore, there was no occasion for defendant No. 2 either to enter into any agreement to sell with the defendant No. 1 or to again hand over the possession to the defendant No. 1 when the possession was already handed over to the plaintiff on 10.07.08.
29. The learned counsel for defendant No. 1 has argued that plaintiff during cross examination deposed that he was never in possession prior to preparation of receipt Ex. PW 1/ 2 dt. 03.09.08 and therefore the contention of the plaintiff that he was in possession since 10.07.08 appears to be without basis. It is further argued that receipt Ex. PW 1/ 2 CS No. 70/14 page 25 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. dt. 10.07.08 is false and Ex. PW 1/ 2 and Ex. PW 1/ 3 are forged by the plaintiff in collusion with defendant No. 2 and 3. This contention of learned counsel for defendant No. 1 appears to be without any ground. Even if this contention is accepted to be true, the statement of defendant No. 2 was recorded before learned civil judge on 12.08.08 and thereafter Ex. PW 1/3 was executed on 03.09.08. The agreement relied by defendant No. 1 is dated 24.09.08 i.e. much after the execution of DW 1/ 2 or DW 1/ 3 by defendants No. 2 as well as recording of the statement before learned civil judge dt. 12.08.08. This court does not find any force in the arguments of learned counsel for defendant No. 1 that defendant No. 1 is in possession of suit property from 05.03.08 as this contention appears contrary to the record itself. On 05.03.08, the defendant No. 1 purchased only 40 sq. yards of the property out of 60 sq. yards and not the remaining 20 sq. yards i.e. the suit property at all. The defendant No. 1 in one way or other tried to mislead the court by raising such arguments and in view of averments in the pleadings.
30. From documents Ex. PW 1/ 2, PW 1/ 3 and PW 1/ 4, it is proved that the possession of the suit property has been handed over by defendant No. 2 to plaintiff. Suit property is proved by plaintiff in view of site plan Ex PW 1/ 1. It is contended by plaintiff that suit property was illegally occupied by defendant no. 1 when he went to his native place and returned on 11.10.08. This fact was corroborated in view of complaint made CS No. 70/14 page 26 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. by plaintiff to the police in this regard which is Ex. PW 1/ 5 dt. 11.10.08. The case of the plaintiff is further corroborated and supported in view of the contentions in the plaint Ex. PW 1/ 6. The plaintiff during cross examination deposed regarding the averments mentioned in the plaint and also proved the relevant documents. The testimony of PW 1 / plaintiff remained impeached and uncontroverted. More over the execution of PW 1 /2 and PW 1/3 is also proved in view of the contention of defendant no. 2/ DW 2. The defendant No. 1 on other hand failed to prove the agreement to sell relied by him in support of contention as well as failed to prove the fact that the possession of suit property was ever handed over to him by defendant no. 2. None of the witnesses to the said the agreement to sell was ever produced and even defendant No. 2 had denied the averments of defendant No. 1. Even if the plaintiff came in possession after execution of PW 1/ 3, the execution of any agreement to sell in favour of defendant No. 1 is of no value and as the possession was handed over to the plaintiff, the possession by the defendant No. 1 is illegal and unlawful. The plaintiff deposed that he came to know regarding the trespass by defendant No. 1 on 11.10.08 when he returned from his village and this testimony is supported in view of complaint Ex. PW 1/ 5. The contention of collusion between plaintiffs and defendant No. 2 as argued by defendant no. 1 without any ground. The defendant No. 2 / DW 2 admitted the transaction between him and plaintiff and rather agreed to execute the CS No. 70/14 page 27 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. sale deed in favour of plaintiff. The defendant/ DW 2 on other hand failed to prove the contention and discharge the onus. The testimony of DW 2 and DW 3 is not help of defendant no. 1. In view of the aforementioned discussion, It is proved that the plaintiff has entered into agreement and purchased the suit property from defendant No. 2 and also obtained its possession. It is further proved that defendant No. 1 is illegal and authorized possession of the suit property and the possession was never handed over of the suit property to defendant no. 1. It is further held that defendants No. 1 not purchased the suit property and agreement relied by defendant No. 1 is not executed by defendant No. 2 and documents executed by defendant no. 2 in favour of plaintiff are genuine. The agreement dt. 24.09.08 relied by defendant No. 1 is fabricated and has no value in the eyes of law. The issue No. 4 is decided in favour of plaintiff and against the defendants whereas issue No. 5, 6, 7 and 8 is decided against the defendants and in favour of plaintiff.
ISSUE No. IX
(ix) Whether the plaintiff is entitled to a decree of declaration as prayed in the plaint?( OPP).
31. In the present case, the defendant No. 2 has sold the suit property to plaintiff and consequently handed over the possession to him. The defendant No. 1 entered into unauthorized and illegal possession of suit property without any right, title or interest. There is nothing on record to CS No. 70/14 page 28 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. infer that defendant No. 2 ever sold the suit property to the defendant No. 1 or consequently ever handed over the possession. The defendant No. 1 further failed to prove that the possession was handed over as part performance of the agreement to sell and she was permitted to use the suit property as permissive user. The plaintiff categorically proved that the defendant No. 1 occupied the suit property illegally and unauthorizedly when he was at his native village and made complaint as and when he came therefrom. Thus the only inference which can be drawn in view of the pleadings and evidence led is that the plaintiff has purchased the suit property and is entitled to the possession of the same alongwith other reliefs as prayed in the suit. As the plaintiff has purchased the suit property the documents on the basis of which the defendant No. 1 is claiming the ownership right in the suit property are null and void and plaintiff is entitled for decree of declaration that he is bona fide purchaser and purchased the suit property from defendant No. 2. Issue No. IX is disposed off in favour of plaintiff and against the defendant No. 1.
Issue No. X
(x) Whether the plaintiff is entitled to a decree of possession as prayed in the plaint?( OPP).
32. The onus to prove this issue is upon the plaintiff. In view of the aforesaid discussions and findings, it has been proved that the plaintiff has purchased the suit property from defendant no. 2 and also received CS No. 70/14 page 29 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. possession. The defendant No. 2 have no right, title or interest in respect of the same. There is nothing on record to infer that defendant No. 2 has sold the suit property to the defendant No. 1 or consequently defendant No. 1 and handed over the possession. The defendant No. 1 further failed to prove that the possession was handed over as part performance of the agreement to sell and defendant No.1 was permitted to use the suit property. Thus the only inference which can be drawn in view of the pleadings and evidence led is that the plaintiff is the owner and the defendants have no right of possession. The plaintiff is therefore entitled for the possession as prayed in the suit. Issue No. X is thus decided in favour of the plaintiff and against the defendant No. 1. Issue No. XI
(xi) Whether the plaintiff is entitled to a decree of specific performance against defendant No. 2 as prayed in the plaint?( OPP).
33. In view of aforesaid discussions and findings, it is proved that plaintiff has purchased the suit property from defendant No. 2 by way of Ex. PW 1/ 2 , PW 1/ 3 and PW 1/ 4 and is therefore entitle for the decree of declaration as prayed in the suit. As the plaintiff has purchased the same from defendants No. 2 and got possession, the possession of defendant no. 2 is illegal and unauthorized. Defendant No. 2 has no right, title or interest in the suit property and is therefore liable to vacate the same. Plaintiff is entitled to the possession of the suit property as shown in CS No. 70/14 page 30 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. red colour of site plan Ex. PW 1/ 1 having purchased from defendant No.
2. As the defendant No. 1 has no right, title or interest in the suit property, the defendant No. 1 has not transferred or create any third party interest in the suit property and the agreement to sell dt. 24.09.08 relied by plaintiff have no value and is forged and fabricated. As the plaintiff has purchased the suit property to defendant No. 2, plaintiff is entitled that the sale documents be executed in his favour by defendant No. 2 and defendant No. 2 is directed to execute the sale papers in favour of plaintiff in respect of suit property within a period of three months from today. Issue No. XI is accordingly disposed of in favour of the plaitniff. Issue No. XII
(xii) Whether the plaintiff is entitled to mandatory and permanent injunction as prayed in the plaint?( OPP).
34. As regards the relief of injunction, the injunction is a discretionary relief and its grant of refusal depends upon the circumstances and facts of a particular case. The discretion has to be reasonable guided by judicial principles and law. It must not be arbitrary, vague and fanciful. Section 41 of the Specific Relief Act enumerates the cases where an injunction will be denied. Sub Section (h) of section 41 mention that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust the injunction cannot be granted. Sub Section (i) mention regarding refusal of injunction when the CS No. 70/14 page 31 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. conduct of the applicant or his agents has been such as to disentitle him to the assistance of the court. Section 38 of the Specific Relief Act enables the court to grant a perpetual injunction to prevent the breach of an obligation existing in favour of applicant whether express or implied. Meaningly the question is to be examined as to whether there exists an obligation in favour of the applicant and thereafter if the answer is yes, if the case falls within section 41 of the Act, an injunction cannot be granted. It is also necessary to mention that rights and obligation are corollary to each other and the right places a corresponding duty also for its existence.
35. As held in JT 1994 (6) SC 588 , interest of right not shown to be in existence cannot be protected by injunction. Issuance of order of an injunction is absolutely discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41 (j) of the Specific Relief Act, 1963 and the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence cannot be protected by injunction.
36. The plaintiff has prayed for restraining the defendants, agents, attorneys etc. from creating any third party interest in the suit property. It is the case of the defendant No. 1 that she has purchased the suit from the defendant No. 2. As mentioned the defendant No. 1 failed to prove the CS No. 70/14 page 32 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. documents. The defendant No.1 therefore cannot have valid title in respect of the suit property on the basis of said document. Further, defendant No. 2 supported the cae of plaintiff and denied that any agreement to sell was entered into between him and defendant no. 1. As the defendant No. 1 have no right, title or interest in the suit property, the plaintiff is entitled for grant of injunction as prayed in the suit. Issue No. V is decided in favour of the plaintiff and against the defendants. The defendants, their agents, assigns, associates are restrained from creating any third party interest or parting with possession of the suit property. Issue No. XII is decided in favour of the plaintiff and against the defendants.
RELIEF & COSTS
37. In view of the aforesaid discussions and findings, this court is of the considered opinion that plaintiff has proved his case and therefore, he is entitled for the following relief:
(i) It is declared that the plaintiff is the bona fide purchaser of the suit property as shown in red color in the site plan Ex.PW1/1 having purchased the same from defendant No. 2 .
(ii) The decree of possession is passed in favour of the plaintiff and against defendant No. 1, LRs, Agents, Successors etc. regarding suit property i.e. H. No. C337, Main Road, Mulla Colony, near Subhaniya Masjid, Gharoli Extension Delhi96 measuring 20 Sq. Yards as shown red CS No. 70/14 page 33 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.
Sh. Gorakh Nath Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. color in the site plan Ex. PW1/1.
(iii) The defendant No. 2 is directed to execute the sale documents in favour of the plaintiff in respect of the suit property within three months from today and defendant No. 2 and 3 are restrained from executing any sale documents in respect of the suit property in favour of defendant No. 1 on the basis of agreement to sell dated 24.09.08 which is declared null and void.
(iv) Decree of permanent injunction is passed in favour of the plaintiff and against the defendants and the defendants, attorneys, representative, agents etc. are restrained from selling, transferring, alienating or creating third party interest in the suit property bearing No. H. No. C337, Main Road, Mulla Colony, near Subhaniya Masjid, Gharoli Extension Delhi96 measuring 20 Sq. Yards as shown red color in the site plan Ex. PW1/1 except without due process of law.
(v) The plaintiff is also entitled for cost of the suit.
38. Decree sheet be drawn accordingly.
39. File be consigned to record room after necessary compliance. Announced in open Court on this 15th day of July, 2014 Gorakh Nath Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 70/14 page 34 of 34 Abdul Latif Ansari Vs. Allah Rakhi & Ors.