Delhi District Court
Gulab Singh vs Phool Singh on 28 November, 2013
In the Court of Dr. Rakesh Kumar : Additional Senior Civil Judge of
Central District at Tis Hazari Courts, Delhi
Suit No. 342/2013
Unique ID No : 02401C0298442012
In the matter of :
Gulab Singh,
Son of Jaspal Singh,
Resident of O45, Aruna Nagar,
Majnu Ka Tila, New Delhi - 110005 ......Plaintiff
V E R S U S
1. Phool Singh,
Son of Raj Singh,
Resident of N68/489, Majnu Ka Tila,
Aruna Nagar, Delhi-54
2. Municipal Corporation of Delhi,
North District, Rajpur Road,
Delhi ......Defendants
Date of institution : 05.07.2012
Reserved for Order : 21.11.2013
Date of decision : 28.11.2013
O R D E R
1. This order shall decide the following issues framed by this court on 12.07.2013 as preliminary issues:
1. Whether the plaintiff has no locus standi to file the present suit? OPP
2. Whether the suit of the plaintiff is maintainable in the present form? OPP CS No: 342/2013 Page no. 1 / 9
2. I have heard counsel for the parties and perused the record carefully.
3. It is submitted by the learned counsel for the plaintiff that the defendant no.1 has raised unauthorized construction which is required to be demolished.
4. Per contra, it is submitted by learned counsel for the defendant no. 1 that the plaintiff is not the owner of the property no.N68/489, Aruna Nagar, Majnu Ka Tila, Civil Line, Delhi (hereinafter referred to as 'the suit property') and mother of the defendant no.1 is the owner of the same.
5. It is submitted on behalf of the counsel for the defendant no. 2 that there is no cause of action against the defendant no.2.
6. I have given my thoughtful consideration to the submissions made on behalf of the parties.
7. This is a suit for perpetual injunction and mandatory injunction for restraining the defendant no. 1 and his agents etc. from raising any construction without the permission of the plaintiff and without getting a sanctioned site plan from the defendant no.2 and for directing the defendant no. 2 to take all necessary legal action against the defendant no.1 for his unauthorized construction activities in the suit property.
CS No: 342/2013 Page no. 2 / 98. Facts alleged in the plaint are that the plaintiff is owner of the suit property having purchased the same from its earlier owner Harvinder Singh; that the defendant approached the plaintiff and requested him to let out the suit property to him for his residence; that the defendant had demolished the entire suit property and constructed a new room in place of the old existing structure; that the defendant also informed to the plaintiff that he was going to construct 2/3 storey structure for his residence; that the plaintiff challenged the defendant that he has no right, title and interest to demolish the super structure of the suit property without the permission, however the defendant refused to abide the request of the plaintiff and did not stop the unauthorized construction activities over the suit property; that the defendant stopped his unauthorized construction activities on the intervention of the local police for some time but he again started the same and hence this suit.
9. The defendant no.1 contested the suit by filing its written statement contending wherein that the mother of the defendant no. 1 also filed a suit for permanent injunction against the defendant no.1 over the same suit property which is pending in the civil court and the present suit has been filed by Gulab Singh in collusion with his mother; that the mother of the defendant no. 1 is the owner of the suit property and the plaintiff is nothing to do with the same; that the defendant no.1 is not the tenant in the suit property. Other CS No: 342/2013 Page no. 3 / 9 allegations of the plaint have been denied and disputed by the defendant no. 1 and prayed for dismissal of suit.
10. The defendant no.2/North DMC contested the suit by filing its written statement contending wherein that the suit property was inspected on 19.12.2012 and it was found that the suit property is approx. 30 meters and consist of ground floor which has been raised earlier in the shape of tin shed; that the defendant no.1 is residing there and construction is old and no new construction was seen in progress nor any building material was found stacked at site.
11. In the present suit, the plaintiff is seeking relief of mandatory injunction and perpetual injunction.
12. The general principles underlying the grant of perpetual injunction are whenever a right exists or is created by contract, by ownership of property or otherwise, cognizable by law, an injunction will be issued to protect a violation of that right and the restraining power of the court extends through the whole range of rights and duties recognized by law and would be applied to every case of intended violation unless there are other reasons of policy or expediency which control and limit its exercise. So, for obtaining an injunction the plaintiff has to prove an existing legal right in his favour.
CS No: 342/2013 Page no. 4 / 913. The principles underlying mandatory injunction are the same as those underlying perpetual injunction. Two things have to be considered by the court before it proceeds to grant of mandatory injunction, (i) what acts are necessary to be done in order to prevent the breach of an obligation, and (ii) the requisite acts must be such as the court is capable of enforcing.
14. Section 2(a) of the Specific Relief Act, 1963 defines the term obligation which says, "obligation" includes every duty enforceable by law". It includes every duty enforceable by law so that when the legal duty is imposed on the person in respect to another that the other is invested with corresponding legal rights.
15. In para no.1 of the plaint, the plaintiff claims to be owner of the suit property. But, the plaintiff has not produced any registered sale documents to prove his ownership. The documents relied upon by the plaintiff are photocopies of General Power of Attorney, Agreement to Sell and Receipt. But, these are not the documents of sale.
16. It has been held by the Hon'ble High Court of Delhi in G.Ram v. Delhi Development Authority, AIR 2003 Delhi 120 as follows: "An agreement of sale is not a document of transfer nor by reason of execution of a power of attorney, the right, title or interest of an immovable property can be transferred. Such a transfer can only be effected by executing a registered document as provided for under section 54 of the Transfer of Property Act read with section 17 of the Indian Registration Act."
CS No: 342/2013 Page no. 5 / 917. Similar view has also been taken by the Hon'ble Delhi High Court in M.L. Aggarwal v. Oriental Bank of Commerce and others, 128(2006) DLT 407(DB). Relevant portion of the judgment reads thus: "7. The petitioner had 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.
11. In our opinion, the petitioner has no right, title or interest in the 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."
18. The law laid down in G.Ram's case (supra) and M.L. Aggarwal's case (supra) has been reemphasized by the Hon'ble Supreme Court in Suraj Lamp and Industries Private Limited v. State of Haryana and Another, (2012) 1 SCC 656 declaring clearly the scope of agreement for sale as follows:
"Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam and Anr. (1977) 3 SCC 247, observed:
A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein." In India, the word 'transfer' is defined with reference to the word 'convey'. The word 'conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership... ...that only on execution of conveyance ownership passes from one party to another...."CS No: 342/2013 Page no. 6 / 9
19. The Hon'ble Supreme Court in Suraj Lamp's case (supra) further explained the scope of power of attorney which is as follows:
"A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan vs. Basant Nehata - 2005 (12) SCC 77, this Court held :
A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the PowersofAttorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the guarantor."
20. In the light of law clearly declared by the Hon'ble Supreme Court in Suraj Lamp's case(supra) a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property and a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property.
CS No: 342/2013 Page no. 7 / 921. Further, from the allegations made in the plaint itself and contentions raised by the defendant no.1 in his written statement, it can be discerned that the defendant no.1 has also raised serious clouds over the title of the plaintiff and he is also out of possession.
22. The Hon'ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy AIR 2008 SC 2033 summarizes the scope in regards to the suit for injunction relating to immovable property as under: "Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration with possession, with or without 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 consequential injunction. Where there is remedy an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor."
23. As I have already discussed, the defendant no. 1 has raised serious clouds on the title of the plaintiff qua the suit property and he is also out of its possession but the plaintiff has neither sought any declaration of ownership nor possession of the suit property. In the facts and circumstances of the present case and in the light of law laid down in Anathula Sudhakar's case (supra), equally efficacious reliefs available to the plaintiff would have been the relief of declaration of ownership with possession of the suit property but the plaintiff has failed to seek these reliefs. The relief of injunction simplicitor cannot be granted.
CS No: 342/2013 Page no. 8 / 924. The law is well settled that in exercising its powers under Order VII Rule 11 of the CPC, the court should reject the plaint so that bogus litigation can be shot down at the earliest stage. By instituting the present frivolous case, the plaintiff has abused the process of the court and this kind of vexatious and frivolous litigation has to be nipped in the bud.
25. For the reasons aforestated, these preliminary issues are decided in favour of the defendants and against the plaintiff.
26. In view of my findings on the preliminary issues, the suit is dismissed with costs of Rs.3,000/ besides ordinary costs to be paid to the defendant no.1. For removal of doubts, it is made clear that dismissal of the suit shall not, in any manner, prejudice the powers of North Delhi Municipal Corporation to take action against the suit property as per provisions of Delhi Municipal Corporation Act 1957 and other building bylaws. Decree sheet be prepared accordingly.
Announced in the Open Court on 28.11.2013 (Dr. Rakesh Kumar) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi CS No: 342/2013 Page no. 9 / 9