Delhi District Court
Sh. Umrao Singh ( Deceased) vs (1) Smt. Nirmala Sharma W/O Sh. Vinod ... on 10 May, 2014
Sh. Gorakh Nath Pandey
Additional District Judge (NE),Karkardooma Courts, Delhi.
IN THE COURT OF SH. GORAKH NATH PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
Regular civil appeal No. 35/14
Case I.D. Number : 02402C0287732009
IN THE MATTER OF :
Sh. Umrao Singh ( Deceased)
Through LRs.
(1) Smt. Geeta Singh W/o Late Umrao Singh.
(2) Sh. Rahul S/o Late Umrao Singh
(3) Sh. Nukul S/o Late Umrao Singh
(4) Monika D/o Late Umrao Singh
All R/o H. No. B30, B, Gali No. 4/6,
Rama Garden, Karawal Nagar, Delhi .......Appellants
VERSUS
(1) Smt. Nirmala Sharma W/o Sh. Vinod Kumar Sharma
R/o H.No. D22/14, Madhuban Mohalla, Gali No. 2,
North Ghonda, Delhi53.
(2) Sh. Dharam Singh S/o Late Sher Singh
R/o H. No. B160, Gali No. 4/4, Near Bhagmal Murgi Farm
Rama Garden, Delhi93.
(3) Smt. Sudesh W/o Sh. Mahesh Chand
R/o K258, Pushta Road, Main Karawal Nagar, Delhi94.
(4) Smt. Kailashwati W/o Sh. Mam Chand
R/o K94, Village Karawal Nagar, main Chowk, Delhi94.
(5) Smt. Yashodha W/o Shri Pal
R/o H. No. 82, Shakarpur Khas, Delhi. ........Respondents
RCA No. 35/14 1/29
Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey
Additional District Judge (NE),Karkardooma Courts, Delhi.
Date of Institution of Appeal : 30.09.2009
Date of receipt in this Court : 10.02.2014
Reserved for Judgment : 07.05.2014
Date of Judgment/Order : 10.05.2014
Decision : Appeal dismissed with costs.
J U D G M E N T
1. The present appeal impugns the judgment and decree dated 07.08.09 passed by Ld. CCJ/ARC/MM (NE), Karkardooma Courts in suit No. 93/08 whereby the suit for permanent injunction in respect of property bearing H. No. B225/6, Gali No. 6, Karawal Nagar, Delhi94 measuring 200 Sq. yards as shown in red colour in site plan Ex. PW1/1 ( hereinafter called the suit property ) filed by the plaintiff/appellant has been dismissed.
2. The brief and relevant facts in the background of which the present suit was filed by the appellant who is the plaintiff in the original suit are as follows:
(i) That the plaintiff is the sole and absolute owner in possession of the property bearing H. No. B225/6, Gali No. 6, Karawal Nagar, Delhi94, measuring 200 Sq. Yards as shown red in the site plan. It is further alleged that the plaintiff had purchased the aforesaid property from his father namely Late Sh. Shr Singh on 10.05.2001 who had executed the G.P.A, Agreement to Sell, Receipt and Will in respect to the suit property in his favour. It is further RCA No. 35/14 2/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. alleged that the suit property was purchased by the father of the plaintiff from one Sh. Chander Pal on 27.05.2000 and the said Sh. Chander Pal Singh executed the Regd. G.P.A, the Reg. Special Power of Attorney, Agreement to Sell, Receipt, Will dated 27.05.2000 in favour of the father of the plaintiff and the said Chanderf Pal Singh had purchased the aforesaid property from Sh. Satyanarayan on 08.07.1987 and got executed GPA, Agreement to Sell, Affidavit, Registered Receipt. Deed of Will dated 08.07.1984 from Satyanarayan. It is further alleged that the said Satyanarayan purchased the aforesaid property from Smt. Ram Murti on 04.05.1984 and got executed GPA, Agreement to Sell, Regd. Receipt dated 04.05.1984. It is further alleged that the father of the plaintiff and the defendant expired on 08.02.2005 at Delhi and after the death of the father of the parties, defendant no. 1 filed a false and baseless suit on 18.01.2008 for seeking partition and permanent injunction against the plaintiff and the defendant no. 2 to 5 and the same is still pending before the Court of Sh. S.C. Malik, Ld. ADJ Delhi case titled as Smt. Nirmala Sharma V/s. Sh. Umrao Singh & Ors. vide case No. 44/08. It is further alleged that the defendants want to grab the aforesaid property by way of the said false suit and in furtherance of their intention, on 08.12.2008 the plaintiff visited the aforesaid property, but suddenly two persons came and they said to the plaintiff that they have been sent by the defendants informed and threatened to the plaintiff that the vacant possession of the aforesaid property be handed over to them within three days, otherwise they will get the RCA No. 35/14 3/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. possession of the said property forcibly with the help of anti social elements. It is further alleged that on 08.12.2008, the plaintiff shad made a written complaint to the SHO, P.S. Karwal Nagar, Delhi against the defendants and thereafter has filed the present suit thereby seeking the relief that the defendants be restrained not to dispossess or interfere in the peaceful possession of the suit property.
(ii) Defendants have filed their written statement to the plaint and have contended that the suit is not maintainable as the plaintiff has suppressed the material facts and the present suit is sheer misuse of the process. It is further alleged that the defence of the defendants has been strucked off in the case pending before Ld. ADJ, Sh. Lal Singh in case titled as Smt. Nirmala Sharma Vs. Umrao Singh and in that case, possession of the plaintiff has been admitted and status quo order has been passed by the Ld. ADJ. It is further alleged that the suit of the plaintiff is not maintainable and same is liable to be dismissed. It is further alleged that the plaintiff has no locus standi to file the present suit and the suit is without cause of action as the suit has neither been properly valued for the purpose of court fees and jurisdiction nor the proper and requisite court fees has been paid. It is further alleged that the plaintiff has filed a false suit just to get the undue benefit from the litigation and all the allegations of the plaintiff have been denied by the defendants thereby alleging that the suit is liable to be dismissed. Other defendants have also denied all the allegations, however, it is admitted that the parties are the RCA No. 35/14 4/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. real brothers and sisters and the father of the parties was the absolute owner of the suit property. It is further alleged that the parties have equal share in the suit property and plaintiff wants to grab the share of the defendants and to grab the share of the defendants, this case has been filed. It is specifically denied that on 08.12.2008, the plaintiff visited the suit property or two person ever extended threat for the forcible dispossession from the suit property. Defendants have prayed that the suit be dismissed.
(iii) The plaintiff has filed replication to the WS of the defendants and has reaffirmed his pleadings and has prayed that the suit is liable to be decreed.
(iv) As per the pleadings of the parties following issues have been framed vide order dated 25.02.2009.
(1) Whether the plaintiff is entitled for the relief of permanent injunction?( OPP) (2) Relief.
3. The appellant have preferred the instant appeal on the ground that the impugned judgment and decree dated 07.08.09 is not sustainable in law and facts and is passed without application of judicial mind. It is further contended that the impugned judgment and decree is not passed on the basis of the admitted and proved facts and the judgment suffers from illegality and infirmity. As mentioned the Ld. Trial Court failed to appreciate the correct facts and impugned judgment and decree liable to be set aside. The learned trial court reached on ground for conclusion regarding the title of the appellant RCA No. 35/14 5/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. misreading the relevant provision of law. As further contended, the Ld. Trial Court failed to appreciate the facts in proper perspective and reached to wrong conclusion; the Ld. Trial Judge has not applied his mind and disposed off the suits without following due process of law and considering the relevant aspects. This appeal is filed praying to set aside the impugned judgment and decree.
4. The respondents did not wish to file reply to the appeal.
5. I have heard the Ld. Counsel for the appellant and respondent.
6. Having drawn my attention to the pleadings of the parties, testimony of the witnesses and materials on record, it is submitted by Ld. Counsel for the appellant that the documents relied by the appellant in support of his owner ship is admissible in evidence and learned trial court wrongly reached to the conclusion that they have no value in the eyes of law. It is further argued that the appellant is the owner of the suit property, the impugned judgment and decree is not sustainable in law being passed without application of judicial mind and prayed to allow the appeal.
7. The Ld. Counsel for the respondent on the other hand supported the impugned judgment and decree and argued that the appeal filed by the appellant is not maintainable and is filed only to delay the legal proceedings and harass the respondent. It is further argued that suit partition is pending before competent court and there is no basis for filing of this suit. It is argued that by way of this simplicitor suit for injunction, the plaintiff is seeking RCA No. 35/14 6/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. declaration of ownership regarding the suit property in one way or other. The Ld. Counsel for the respondent prayed to dismiss the appeal with heavy cost.
8. I have given my thoughtful considerations to the submissions made on behalf of the parties and gone through the trial court records. Before rendering findings in each appeal, I shall analyze the evidence of the parties led by them before the Ld. Trial Court along with legal provisions together.
9. To appreciate the rival contentions of the parties, it is necessary to refer relevant provisions of law regarding injunction i.e. Section 38 of Specific Relief Act, 1963 which is as below: Section 38. Perpetual injunction when granted. (1) Subject to the other provisions contained in or referred to by this chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
10. Section 38 of Specific Relief Act enables the court to grant perpetual injunction to prevent the breach of an obligation existing in favour of applicant, whether expressed or implied. Meaningly, the question is to be examined as to whether there exists an obligation in favour of the applicant and if the answer is in affirmative and the case falls within the ambit of Section 41 of the Specific Relief Act an injunction cannot be granted. It is also necessary to mention that rights and obligations are corollary each other and the right places a correspondence duty also for its existence. The injunction is a RCA No. 35/14 7/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. 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 conduct of the applicant or his agents has been such as to disentitle him to the assistance of the court.
11. The relief of injunction is based on equity and person claiming the same must come to the court with clean hands. As held in (1994) 5 SCC 47: "Issuance of an order of injunction is absolutely a discretionary and equaitable 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 mere asking such relief should be given. Injunction is a personal right under section 41(j) of the Specific Relief Act 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction".
12. The plaintiff claimed the discretionary and equatable relief of injunction and he was to show the perfect legal right and the encroachment thereof on RCA No. 35/14 8/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. the same for the grant of relief of injunction. The plaintiff is bound to be prove its case and discharge the onus to succeed. The Ld. Counsel for the respondent vehemently argued that by way of this simplicitor suit of injunction, the plaintiff is seeking the relief of declaration of ownership regarding the suit property and therefore, this suit is not maintainable. This contentions of learned counsel for defendant appears to have substance. I have gone through the judgment reported as AIR 2008 SC 2033 wherein the scope of a suit for permanent injunction was examined by Hon'ble Supreme Court in detail and the position in regards to the suits for prohibitory injunction relating to immovable property is summarized as under:
(i) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor.
(ii) As a suit for injunction simplicitor is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for RCA No. 35/14 9/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of the title to the property, as in thecase of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(iii) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title ( either specific, or implied). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine orrender a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(iv) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties RCA No. 35/14 10/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. lead evidence, if the matter involved is simple and straight forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
It was further held while answering the scope of the suit for permanent injunction relating to immovable property, the general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief are well settled. It is mentioned:
1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or RCA No. 35/14 11/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. threatened by the defendant, a suit for an injunction simplicitor will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in lawful possession is not entitled to an injunction against the rightful owner.
2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simplicitor, without claiming the relief of possession.
3. Where the plaintiff is in possession but his entitled to the property in dispute, or under a cloud, or where a defendant asserts a title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. The ratio of the judgment is squarely applicable in the facts and RCA No. 35/14 12/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. circumstances of the case and the simplicitor suit of the plaintiff for permanent injunction appears to be not maintainable particularly when the suit for partition regarding the suit property is pending adjudication.
13. The brief and relevant facts for the filing of suit, the defence of the defendants and the issues framed in the shit have been mentioned at the outset. The onus to prove the issue regarding entitlement of the plaintiff as prayed in the suit remained upon the plaintiff. The plaintiff has prayed for restraining the defendants from dispossessing or interfering in the peaceful possession of the suit property. The plaintiff has filed the suit for injunction claiming to the absolute owner in possession of suit property having purchase from his father late Sher Singh on 10.05.01 on the basis of documents ie. GPA, agreement to sell, receipt, will dt. 10.05.01. The parties in the suit are the brothers and sisters i.e. LRs of late Sh. Sher Singh. There is no dispute between the parties that suit for partition and permanent injunction regarding the suit property filed by defendant No. 1 is pending adjudication before the competent court and all the parties to this suit are the party in the said partition suit. The defendants denied the contention of the plaintiff mentioning that plaintiff has suppressed the material facts; suit is not maintainable and liable to be dismissed u/o 7 Rule 11 CPC; this suit is misused of process of law; in the suit for partition filed by defendant No. 1, defence of the plaintiff has been struck off which is pending before competent court; there is no cause of action for filing of the suit and plaintiff has no locus standi to file this RCA No. 35/14 13/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. suit. The defendants denied the contentions of the plaintiff regarding purchase of property from late Sh. Sher Singh and mentioned that Sh. Sher Singh died instantly never transfer the suit property in favour of any one and documents relied by plaintiff are forged and fabricated. The defendants prayed to dismiss the suit with costs.
14. In support of contentions, the plaintiff examined three witnesses i.e. himself as PW 1, Smt. Sarvati Devi as PW 2 and Sh. Rakesh as PW 3. All the defendants examined themselves as D1 to D5 respectively.
15. The evidence of the parties led before Ld. Trial Court was somehow on the similar lines as contended in the plaint. The Plaintiff admitted the pendency of suit for partition and permanent injunction filed by plaintiff against all the parties of the suit and status qua order has been passed in the said suit on 29.01.08. This suit was filed by plaintiff on 11.12.08 i.e. after the grant of status qua in the suit for partition and injunction filed by defendant No. 1. In one way or the other, the plaintiff being party in that suit, the interest of the plaintiff is also protected by way of status qua order dt. 29.01.08 and the apprehension of the plaintiff therefore for filing of this suit appears to be without any cause of action having no merits. Admittedly the plaintiff has engaged his counter to conduct that case. The falsity of filing of this suit by the plaintiff is highlighted as the plaintiff during cross examination admitted that he filed present suit against the order of striking off defence of filing his WS in Tis Hazari Case. Therefore the filing of this suit merely appears to be RCA No. 35/14 14/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. after thought and as a counter attack to the suit for partition filed by defendant No. 1.
16. As regard the execution of document by late Sh. Sher Singh in favour of plaintiff, the testimony of PW 1 was totally shattered. Moreover none of this documents are either registered or properly stamped. The plaintiff admitted the instant relation between the parties during cross examination and none partition of the property left by late Sher Singh. Admittedly the plaintiff has not filed any suit for declaration regarding ownership of suit property. No complaint in support of the allegations made by the plaintiff in the plaint after calling the relevant witness or proving the documents and defendant made no complaint in the PS regarding the threats. The testimonies of PW 2 and PW 3 examined by the plaintiff is of no help. All the defendants / DWs categorically deposed that the suit property was never partitioned and are co owners of the suit property. The testimonies of the Defendant/ DWs remained un controverted and unimpeached in one way or the other.
17. 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 as 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 injunction, this suit is to be decided on the basis of preponderance of probabilities. As held in Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418 & Vishnu Dutt Sharma Vs. Daya RCA No. 35/14 15/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. Sapra, reported in (2009) 13 SCC 729, "A civil case is decided on balance of probabilities.
18. 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. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. 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.
19. The plaintiff claimed to have purchased the suit property. The ownership of the plaintiff is denied by the defendants and the suit for partition between the parties is pending before the competent court. In view of this legal position of the Evidence Act, it is for the plaintiff to prove that he is absolute owner of the property having purchased the same from late Sher RCA No. 35/14 16/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. Singh and the defendants have no right, title or interest thereon.The issue to be adjudicated is as to whether the plaintiff has become the absolute owner of the suit property by virtue the documents Ex. PW 1/2 to PW 1/ 5. ? This issue appears mainly issue of law.
20. The pleadings of the parties and evidence on record reveals the following:
(a) that the suit property was initially purchased by the Sher Singh and the suit property has not been partitioned.
(b) The suit for partition is pending between the parties and status quo order has been granted regarding the suit property.
(c) That the plaintiff allegedly purchased the suit property from late Sher Singh by way of unregistered documents Ex. PW 1/ 2 to Ex. PW 1/ 5 i.e. GPA, Agreement to sell, receipt and will.
(d) that the plaintiff claimed himself to be the absolute owner of the suit property and defendants have denied any transaction alongwith ownership of the plaintiff.
(e) the plaintiff has not filed any suit for declaration against the defendants or suit for specific performance on the basis of documents Ex. PW1/2 to Ex. PW1/5.
(h) No sale deed has been executed by late Sher Singh in favour of the plaintiff.
(i) There is no cause of action for filing of this suit as there was no threat RCA No. 35/14 17/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. or dispossession by the defendants. Even otherwise the plaintiff being party in the suit for partition filed by defendant No. 1 and status quo being granted in the said suit, the interest of the plaintiff stands protected and there is no cause of action for filing of this suit.
21. 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 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 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 RCA No. 35/14 18/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. 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 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 RCA No. 35/14 19/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. 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 completed in the manner prescribed therefor by 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: RCA No. 35/14 20/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
" 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
(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.
22. It is settled law that title of immovable property above the value of Rs. 100/ can only be transferred by way of a registered instrument as prescribed Under Section 17 of the Indian Registration Act, 1908 and by way of documents of sale as recognized under Section 54 of the Transfer of the Property Act. As held in AIR 1969, SC 1316, the documents of which registration is necessary under the transfer of Property Act ( such as under RCA No. 35/14 21/29
Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. Section 54 of the TP Act) but not under the Registration Act fall within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction of acting any immovable property comprise therein and do not affect any such immovable property.
23. As held in 128 (2006) DLT 407 (DB) titled M. L. Aggarwal Vs. Oriental Bank of Commerce & Ors, : " The petitioner has only produced an agreement to sell, will and a power of attorney and a receipt for payment of money but these in our opinion do not constitute a sale. Under Section 17 (1) (b) of the Registration Act, Sale of an immovable property can only be by a registered deed. In our opinion, the petitioner has no right, title or interest in the suit property as he has not purchased it by any registered sale deed. An immovable property cannot be purchased by a mere power of attorney or agreement to sell."
The ratio was further reiterated by Hon'ble Delhi High Court in AIR 2003, Delhi 120 titled G. Ram Vs. DDA wherein it is mentioned that transfer of immovable property can only be affected by executing a registered documents. Merely making an agreement of sale or execution of power of attorney could not transfer right, title or interest of any immovable property.
24. This court is guided in view of the judgment of Hon'ble Supreme Court in Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, reported as 183 (2011) DLT 1 (SC) in this respect as held, the documents of title relied upon by the plaintiff such as Ex. PW 1/ 2 to Ex. PW1/5 i.e. GPA , RCA No. 35/14 22/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. Agreement to Sell, Will and receipt would not confer ownership rights in respect of immovable property in his favour. Hon'ble Supreme court vide order dt. 15.05.09 reported as Suraj Lamps & Industries V/s State of Haryana, 2009(7) SCC (366) referred illaffects of GPA sells or sell agreement/ GPA/ will transfer holding that there cannot be sell by execution of power of attorney nor there can be transfer by execution on agreement to sell and power of attorney and will. Hon'ble Supreme Court in Suraj Lamps ( supra) reported as Manu/SC/1222/2011 held that immovable property can be legally and lawfully transferred/ conveyed only by a registered deed of conveyance. Transaction of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transaction as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53A of the Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transaction known as GPA sales.
RCA No. 35/14 23/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
25. 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 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).
26. Section 63 (c) of the Succession Act 1925 requires a will to be attested. Further the same cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution. In this regard the in the case of Gopal Swaroop v. Krishna Murari Mangal reported in (2010) 14 SCC 266 the Hon'ble Supreme Court was pleased to hold as under:
"17. A careful analysis of the provisions of Section 63 would show that the proof of execution of a will would require the following aspects to be proved:
(1) That the testator has signed or affixed his mark to the will or the will has been signed by some other person in the presence and under the direction of the testator. (2) The signature or mark of the testator or the signature of the persons signing for him is so placed has to appear that the same RCA No. 35/14 24/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. was intended thereby to give effect to the writing as a will. (3) That the will has been attested by two or more witnesses each one of whom has signed or affixed his mark to the will or has been seen by some other person signing the will in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of the signature or mark or the signature of each other person.
(4) That each of the witnesses has signed the will in the presence of the testator."
27. Section 27 of Indian Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an obligation to set forth in the instrument all facts and circumstances which affects the chargeability of duty on that instrument. Section 17 of the Registration Act, 1908 makes deed of conveyance compulsorily registrable. The transfer of an immovable property can only be by a deed of conveyance and in the absence of a deed of conveyance ( duly stamped and registered as required by law), no right, title or interest in an immovable property can be transfered. With regard to the legal validity of such documents i.e. agreement to sell, GPA, Will and receipt, the Hon'ble Supreme Court in the case of Suraj Lamps and Industries Pvt. Ltd. Vs. State of Haryana reported in AIR 2009 SC 3077 has held that such documents cannot create any right in respect of immovable property. The only way a contract of sale can create title to immovable property is by way of a deed of RCA No. 35/14 25/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. conveyance as defined under Section 54 of the Transfer of Property Act and registered in pursuance of the provisions of Section 17 of The Registration Act, 1908. No such document has been executed in favour of plaintiff by late Sher Singh nor the exceptions made out in the judgment Suraj Lamps Industries ( Supra) applies in the facts of this case.
28. In the present case plaintiff has claimed title / absolute ownership of the basis of GPA, Agreement to Sell, Payment receipt and the will but the execution of the documents not proved along with the execution of the will. None of these documents are registered. Even if these documents were executed by late Sher Singh in favour of plaintiff, the same would not create any title in his favour. As mentioned, plaintiff claimed to be the owner of the suit property which is denied by the defendants. Since there is no registered sale deed executed in favour of the plaintiff in respect of the suit property in accordance with provisions of Transfer of Property Act, 1882, the plaintiff is not the owner of the suit premises and not entitled for the relief of permanent injunction against the defendants being co owners of the suit property.
29. In view of the aforesaid discussions and referred law, this Court is of the considered view that the plaintiff cannot be considered having right, title or interest in the suit property better than the defendants and the documents Ex. PW 1/2 to Pw 1/ 5 relied by the plaintiff is neither helpful nor sufficient to prove the claim of the plaintiff in the suit. The plaintiff is claiming the relief of injunction though his right, title or interest is denied by the defendants. RCA No. 35/14 26/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. Admittedly, the share of the plaintiff is not apportioned after partition between the parties and therefore the defendants are also co owners of the suit property. The plaintiff have been claiming the discretionary and equatable relief of injunction and has to show the perfect legal right and the encroachment thereof on the same for the grant of relief of injunction. I have considered the relevant law i.e. Section 41 (h) of the Specific Relief Act wherein it is mentioned that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other unusual mode of proceedings except in case of breach of trust. Needless to mention, the plaintiffs have efficacious remedy available and in view of the availability of the alternative efficacious relief, the injunction cannot be granted.
30. The matter is pending between the parties before the competent court for partition and the rights of the parties are under adjudication. That being the position the plaintiff have first to get the share partitioned and after having apportioned the share, he can ask for injunction against the third party in case the cause of action arises. The plaintiff has therefore efficacious alternative legal remedy. The plaintiff has filed simplicitor suit for injunction and therefore, the same is also not maintainable
31. As held in JT 1994 (6) SC 588 , interest of right not shown to be in existence cannot be protected by injunction. The question therefore is whether an injunction can be issued against the true owner. Issuance of order of an injunction is absolutely discretionary and equitable relief. In a given set RCA No. 35/14 27/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. 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.
32. If anybody claims to be a joint owner of such property, then parties cannot claim exclusive possession unless partition is affected in accordance with the provisions of the act. The matter in this regard was examined by Hon'ble Supreme Court in Omprakash Aggarwal Vs. Batara Behera & Ors reported in II (1999) SLT 456 . Moreover, the law with regard to grant of injunction is well settled. A person who claims injunction must have a legal right in respect of the agricultural land recognized only when there is a revenue entry i.e. of Khasra Girdawari and Khatoni in the name of the person in respect of the specific portion of the land and not otherwise.
33. In view of the aforesaid discussions and referred law, this Court is of the considered view that the findings of Ld. Trial Judge is correct appreciation of law and fact led before the learned trial court. I do not find any flaw or infirmity in the impugned order dated 07.08.09 which is well reasoned and passed in accordance with the provisions of law. The impugned order whereby the suit of the plaintiff/appellant was dismissed does not suffer from any illegality or infirmity and appears to be sustainable in view of the RCA No. 35/14 28/29 Umrao Singh V/s Nirmala Sharma & Anr.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. aforesaid discussions and findings. The impugned order in no manner cause for any interference. No merit is thus found in the appeal filed by the appellants. The appeal is resultantly dismissed with costs.
34. TCR be sent back to the concerned Court along with a copy of this judgment.
35. Decree sheet be drawn accordingly.
36. Appeal file be consigned to the Record Room.
Announced in open Court on this 10th day of May, 2014 Gorakh Nath Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
RCA No. 35/14 29/29 Umrao Singh V/s Nirmala Sharma & Anr.