Delhi District Court
Dharambir Singh & Ors. vs . M/S. Chintels Exports Pvt. Ltd. on 20 March, 2012
IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1,
SOUTH WEST DISTRICT, DWARKA COURTS, DELHI
C.S. 314/11
Dharambir Singh & Ors. Vs. M/s. Chintels Exports Pvt. Ltd.
20.03.2012
ORDER
1. By this order, the application under Order 39 Rules 1 and 2 read with Section 151 of Code of Civil Procedure filed on behalf of the plaintiffs is decided. By the said application, the plaintiffs have prayed for interim injunction restraining the defendant and its representatives from forcibly dispossessing the plaintiffs from the suit property bearing khasra Nos. 32/51 (019), 9/12(115), 19/1(35), 13/3(02) and 18 min. (04) total land admeasuring 7 Bighas 4 Biswas situated in the Revenue Estate of Village Nanak Heri, Delhi (hereinafter referred to as "the suit property"), from creating interference, obstruction or nuisance in the peaceful occupation and enjoyment of the suit property by the plaintiffs, and from creating third party interest in the suit property, during the pendency of the suit.
Plaintiffs' Case
2. The case of the plaintiffs is that they are real brothers and recorded cobhumidars of the suit property. It is pleaded in the plaint that Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 1 of 22 originally the father of the plaintiffs namely Mr. Ranjit Singh was the th recorded cobhumidar to the extent of 1/6 share in the pre consolidated khasra nos. 314/1 (116) and 315(4/15). After the death of Mr. Ranjit Singh on 08.07.2000, the plaintiffs became cobhumidars of the said land. Mutation was carried out in their favour by order dated 18.08.2000 passed in mutation case no.M15/CO/TNG/200001. In the year 200203, consolidation proceedings took place in the said village. New khasra numbers were assigned to the lands of the plaintiffs. During consolidation proceedings, the defendant filed an application bearing no. M16/CO/21(2) under Section 26 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act before the Consolidation Officer for being declared as encumberor in respect of the new khasra no. 9/19/1, min. (12) on the ground that the father of the plaintiffs Mr. Ranjit Singh had executed agreement to sell, receipt, affidavit, possession letter all dated 25.11.1994 and general power of attorney dated 29.11.1994 to the extent of his 1/6th share in the old khasra numbers. It is further pleaded by the plaintiffs that the aforesaid documents had apparently been fraudulently got executed from the father of the plaintiffs. It is also stated that the defendant had failed to comply with the terms and conditions incorporated in the documents within the stipulated period. The plaintiffs have further stated that consequently the agreement to sell dated 25.11.1994 and Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 2 of 22 other documents became inoperative. It is also stated that general power of attorney was revoked by cancellation deed dated 07.08.1997. A legal notice dated 06.11.1997 was also sent to the defendant informing it about the cancellation of power of attorney and other documents on account of failure of defendant to comply with the terms and conditions. It is pleaded that in view thereof, the defendant failed to acquire any right in the suit property. It is further pleaded in the plaint that on the premises of the general power of attorney, the director of the defendant fraudulently and with mala fide intention got executed a will dated 29.11.1994 in favour of one Ms. Poonam Roseline qua the land comprising preconsolidation khasra numbers by misrepresentation. On getting to know of the said documents, the plaintiffs instituted a suit bearing no.72/2007 for declaration/ cancellation and permanent injunction before the court of Ld. Civil Judge, Delhi. In the said suit, they prayed for declaration of the said will as illegal and void. The suit was decreed in favour of the plaintiffs. The will was declared illegal, null and void and has been cancelled.
3. In the meantime, after completion of pleadings in consolidation proceedings, on the application bearing no. M16/CO/21(2), the consolidation officer allowed the application of the defendant under Section 26 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. The defendant was declared as Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 3 of 22
th
encumberor to the extent of 1/6 share in the preconsolidation khasra numbers. In lieu of the same, postconsolidation khasra no.9/19/1 min. west (12) was assigned.
4. It is further pleaded in the plaint that aggrieved by the order dated 19.08.2003 whereby the aforesaid application of the defendant was allowed, the plaintiffs filed an appeal before the settlement officer. The appeal was later withdrawn with liberty to file a revision petition before the Financial Commissioner, Delhi. The plaintiffs filed a revision petition before the Financial Commissioner, Delhi against the order of Consolidation Officer. The revision petition was dismissed by order dated 14.09.2010. Aggrieved by the said order of dismissal, the plaintiffs preferred a writ petition bearing no. WP(C) No. 8237/10 before the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi disposed off the writ petition by order dated 16.12.2010 with the observation that the plaintiffs are at liberty to approach a civil court to establish title over the land without being influenced by the order of the writ petition.
5. On the basis of the aforesaid averments, the plaintiffs have filed the present suit seeking a decree of declaration declaring that the plaintiffs are recorded cobhumidar of the suit property and that the defendant has no legal right, title or interest therein. The plaintiffs have also prayed for a decree of permanent injunction restraining the Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 4 of 22 defendant from dispossessing the plaintiffs from the suit property and from causing interference, obstruction or nuisance in the peaceful occupation and enjoyment of the suit property by the plaintiffs and from creating third party interest in the suit property. Defendant's Case
6. The defendant filed its written statement. In its written statement, the defendant stated that the suit is barred by law. It is stated that the plaintiffs cannot be declared owners of the land since their predecessorininterest had executed general power of attorney, possession letter, will, receipt and agreement to sell and had delivered possession of the suit property. It is submitted that the plaintiffs have not sought annulment of the said documents and unless the plaintiffs obtain it, they cannot deny the defendant of the rights flowing therefrom. It is also stated in the written statement that the suit has not been correctly valued and proper court fee has not been paid. It is further stated that this court does not have pecuniary jurisdiction to entertain the suit. It is further stated that court fee has not been paid on the implied challenge to the documents executed by the father of the plaintiffs. It is also stated in the written statement that the plaintiffs are seeking a declaration that they are owners of the suit property and that the defendant has no right in the property. This issue has already been decided by the consolidation officer while allowing the Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 5 of 22 application of the defendant under Section 26 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. The revision petition as well as the writ petition filed by the plaintiffs challenging the order have been dismissed. It is submitted that the suit for declaration has been filed about 9 years after the assertion of the defendant of its rights over the suit property and as such the suit is barred by limitation. It is further stated in the written statement that the suit is hit by the Delhi Land Reforms Act and Section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, as well as by the principles of resjudicata and Order 2 Rule 2 of Code of Civil Procedure. It is further pleaded that the suit has been filed after 16 years of the execution of documents in favour of defendant and there is no equity in favour of the plaintiffs. It is further stated that the suit property is agricultural land in which ownership rights do not exist. It is submitted that 'ownership' has been replaced by 'tenures' and therefore declaration of ownership cannot be granted to the plaintiffs. The allegation of fraud in execution of documents has been denied by the defendant. It is submitted that the judgment and decree against Ms. Poonam Roseline has been obtained by fraud.
7. I have heard submissions advanced by Ld. Counsel for parties.
8. At the outset and before deciding whether the plaintiffs are entitled to the reliefs claimed by them, it is imperative to examine whether the Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 6 of 22 suit is maintainable in view of Section 185 of the Delhi Land Reforms Act, 1954 and Section 44 of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948.
9. The jurisdiction of this Court is laid down under Section 9 of Code of Civil Procedure, 1908. Section 9 states as under:
"The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or implicitly barred".
From the above provision, it follows that the jurisdiction of a Civil Court is of wide amplitude. The ouster of jurisdiction is not to be readily inferred. Such exclusion must be explicitly expressed or clearly implied. The exclusionary clauses are to be narrowly construed. This is a settled proposition of law and was laid down in the landmark decision of Hon'ble Supreme Court in the case of Dhulabhai Vs. State of Madhya Pradesh AIR 1969 SC 78. The same view was echoed in the case of Bismillah Vs. Janeshwar Prasad AIR 1990 SC 540.
10.Applying the aforementioned principle to the present case, it is indisputable that the jurisdiction of this Court can be ousted only if the remedy that the plaintiff is seeking is found to be available under the Delhi Land Reforms Act, 1954 or East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. This is also evident from the plain and clear language of Section 185 of Delhi Land Reforms Act and Section 44 of East Punjab Holdings (Consolidation and Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 7 of 22 Prevention of Fragmentation) Act, 1948. Hence the question that is required to be determined is whether the relief of permanent injunction that the plaintiff is seeking through the present suit is covered under the said Acts.
11. Scrutiny of Schedule I of the Delhi Land Reforms Act, 1954 reveals that a suit for permanent injunction restraining creation of third party interest and restraining forcible dispossession is not covered by Schedule I of the said Act. There is no clause in the said schedule which provides for grant of such relief by any revenue authority. From the above, it appears that the suit for permanent injunction can be entertained by this Court and that the jurisdiction of this Court is not ousted by Section 185 of the Delhi Land Reforms Act, 1954. In holding so, I draw support from the decision of Hon'ble High Court of Delhi in Tara Chand & Anr. Vs. Kumari Rajani Jain & Ors. 150 (2008) DLT 101. In that case, the Hon'ble High Court of Delhi held as under:
"Pertaining to agricultural land no remedy is available to a party before a revenue authority to seek a relief of injunction".
In case of Shri Ram vs. First Addl. District Judge AIR 2001 SC 1250, the Hon'ble Supreme Court held that since the plaintiff did not require declaration of his title, a suit in a civil court for cancellation of sale deed was maintainable.
Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 8 of 22 In the case of Bhupinder Singh Rekhi vs. C.S. Rekhi, 76 (1998) DLT 257, the Hon'ble High Court of Delhi held that a suit before civil court is maintainable if the plaintiff has not claimed declaration of bhumidari rights.
In the case of Mam Raj vs. Ram Chander 1974 (10) DLT 227, it was held that a suit for permanent injunction on the basis of a Will is not barred by Section 185 of the Act since it does not require declaration of bhumidari rights.
In the case of Anand Prakash & Ors. Vs. Ram Kala & Ors. 67 (2010) DLT 225, the Hon'ble High Court of Delhi held that a suit in civil court to establish existence of bhumidari rights on the basis of devolution is maintainable.
In the case of Vinod Kumar Sharma (Shri) vs. Smt Seema Sethi & Ors. 2009 II AD (DELHI) 782, it was held by Hon'ble High Court of Delhi that a civil suit challenging the execution of sale deed and permanent injunction restraining forcible dispossession of plaintiff is maintainable before a civil court and is not covered by Section 185 of Delhi Land Reforms Act, 1954.
12.For the aforesaid reasons, in as much as the relief claimed by the plaintiffs does not fall within the ambit of Schedule I of Delhi Land Reforms Act, 1954, the jurisdiction of this Court to entertain the suit is not ousted by Section 185 of the said Act. For the same reason, since Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 9 of 22 the authorities have not been empowered to grant the reliefs sought herein under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, the present suit is not barred by Section 44 of the said Act.
13.Having noted the above, it must be considered as to whether the plaintiffs are entitled to the interim injunction sought by them. The prayers of the plaintiffs are essentially twofold:
a) To restrain the defendant from forcibly dispossessing the plaintiffs and interfering in their possession;
b) To restrain the defendant from creating third party interest in the suit property.
The said prayers are separately dealt with hereinafter. A) To restrain the defendant from forcibly dispossessing the plaintiffs or interfering in their possession.
14.Through this prayer, the plaintiffs are seeking to protect their possession over the suit property. According to the plaintiffs, they are in settled possession of the suit property. The possession of the plaintiffs over the suit property is reflected from the photographs filed by them as well as khasra girdawari placed on record by the plaintiffs. The khasra girdawari shows that the plaintiffs are in actual physical possession of the suit property.
Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 10 of 22
15.According to the defendant, the suit property is in possession of the defendant. The contention of the defendant is that the pre consolidation land had been sold to the defendant and possession was handed over to the defendant. It is further pleaded by the defendant that the suit property is the land that was allotted in lieu of the aforementioned preconsolidation land. However this contention is not supported by the revenue record. If the defendant had been in possession of the suit property, the plaintiffs would not have been shown as occupants thereof in the revenue record. This indicates that the father of the plaintiffs had no intention to transfer possession of the land while executing the possession letter and simply stated on paper that possession stands transferred without actually handing over possession.
16.The entries in khasra girdawari have not been challenged by the defendant. The entries made in the khasra girdawari are conclusive and binding on this court as held by the Hon'ble High Court of Delhi in the case of Phoolwati & Ors. vs. Ram Dei and Ors., 150 (2008) DLT 105, wherein it was noted:
"If one is aggrieved by the entries in Revenue record, the remedy is provided under Delhi Land Reforms Act for correction of record, for regaining possession, for ejectment of transfer, etc. The Civil court is not only barred from entertaining such claims, but is bound to honour the revenue records as correct".
Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 11 of 22
17. From the said entries, it is clear that the plaintiffs are in settled possession of the suit property. That it is not the defendant but the plaintiffs who are in possession of the suit property is further indicated by the statement made by counsel for defendant before the Hon'ble High Court of Delhi in WP(C) No. 8237/2010. On 19.08.2003, the consolidation officer had ordered that the suit property be given to the defendant. This order was in challenge before the Hon'ble High Court of Delhi in case titled Dharambir Singh and Anr. vs. Consolidation Officer and Anr. WP(C) No. 8237/2010. On 16.12.2010, the Hon'ble High Court of Delhi questioned the defendant as to how the suit property could be given to the defendant in his own name since the defendant was only an encumberor. The counsel for the defendant conceded before the Hon'ble High Court that the order of Consolidation Officer is yet to be implemented. This shows that the defendant is yet to receive the suit property in compliance of the order of Consolidation Officer. Hence the defendant is not in possession of the suit property. The possession of the plaintiffs, as reflective from the khasra girdawari and other documents is long, continuous, open and uninterrupted. The said possession therefore qualifies as "settled possession". To protect such settled possession, the plaintiffs do not require a declaration of bhumidari rights or of title. Settled possession alone, short of title, is sufficient to entitle the plaintiffs to protection Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 12 of 22 from forcible dispossession. The proposition that a person in settled possession cannot be removed by force irrespective of title is clearly borne out from the decision of Rame Gowda (D) v. M. Varadappa Naidu, AIR 2004 SC 4609, which has been followed by several subsequent decisions.
18.Since declaration of ownership is not essential, this prayer can be ignored by the court as surplusage. If ignored, a suit for simplicitor injunction is maintainable before a civil court. As held by the Hon'ble High Court of Delhi in the case of Purshottam Dass and Ors. Vs. Har Narain and Anr. AIR 1978 Delhi 114, a suit for injunction has to be treated as a suit under Section 7(iv)(d) of the Court Fees Act if the plaintiff can get the injunction sought by him without the necessity of praying for declaration and in such cases, the prayer for declaration will be surplusage. Such suits may be valued as suits for injunction alone and ad valorem court fee need not be paid. The suit would be then within the pecuniary jurisdiction of the court. The valuation of the suit accorded by the plaintiffs shall be accepted.
19.As held above, for the purpose of protecting settled possession, declaration of ownership is not essential. Hence, the plaintiffs also do not need to assail the genuineness of transfer documents allegedly executed by their father. This objection of the defendant is negatived. Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 13 of 22
20.To this extent, the plaintiffs have succeeded in making out a prima facie case in their favour. Balance of convenience is also in favour of the plaintiffs. Declining the relief sought by the plaintiffs is likely to cause irreparable injury to them which cannot be compensated in terms of money.
21.It is directed that till the disposal of the suit, the defendant and its representatives shall not forcibly dispossess the plaintiffs from the suit property or illegally obstruct their possession or enjoyment thereof. The defendant shall however be at liberty to sue to obtain possession of the suit property.
B) To restrain the defendant from creating third party interest in the suit property.
22.The other prayer of the plaintiffs is to restrain the defendant from creating third party interest in the suit property. In order to decide this matter, it must be examined as to what are the rights of parties in the suit property.
23.It is not in dispute between the parties that till the year 1994, the father of the plaintiffs was the owner of the suit property. All parties claim to have derived their title from him. The plaintiffs claim that they have inherited the suit property from their father whereas the case of the defendant is that it has acquired title by purchasing the property from him. The question that arises is therefore whether the defendant had Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 14 of 22 indeed and validly purchased the suit property from the plaintiffs' father Mr. Ranjit Singh. If so, the property would not devolve upon the plaintiffs by intestate succession and the claims of the plaintiffs would be liable to be rejected. The documents executed by Mr. Ranjit Singh are required to be analyzed.
Effect of documents dated 25.11.1994 and 29.11.1994
24.The defendant has relied upon documents dated 25.11.1994 and 29.11.1994 to substantiate its contention that it has become owner by purchase of the property. The documents comprise of an agreement to sell, receipt, affidavit and possession letter dated 25.11.1994 as well as a general power of attorney dated 29.11.1994. The plaintiffs have not sought cancellation of the said documents although they have admittedly been executed by their predecessorininterest. Although the plaintiffs have raised the plea of fraud in execution of documents, they have chosen not to seek setting aside of the documents. The suit has also not been valued for the said relief. Hence it appears that the plaintiffs do not intend to question the validity of the documents. The documents shall be presumed to be valid. Moreover, the plea regarding fraudulent execution of the documents is a weak one. It is not supported by any material. The manner in which fraud was allegedly committed has also not been disclosed by the plaintiffs. Mere illiteracy of the executant of a document does not impinge on the Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 15 of 22 validity of the document. It does not imply that the document was got fraudulently executed. It is presumed that the executant of a document signed the document only after fully understanding its contents. There is no presumption of fraud in execution of documents by uneducated persons. It is settled law that a plea relating to fraud must be specific. For want of particulars, the plea about fraudulent execution of documents cannot be believed. From the above, it appears that the documents were indeed properly executed by the father of the plaintiffs and the documents are not vitiated by fraud.
25.Assuming the documents to be valid, their impact needs to be evaluated. By the agreement to sell, the father of the plaintiffs proposed to sell the property to the defendant. By the receipt, he acknowledged having received sale consideration. However, after agreeing to sell the property and upon acceptance of sale consideration, the father of the plaintiffs apparently never gave effect to the sale. He never executed registered sale documents.
26.It is settled law that agreement to sell does not confer any right on the person agreeing to purchase the property except the right to obtain execution of sale deed through specific performance. Rights in the property accrue only after the said sale is carried out. Till that happens, no interest or charge over immovable property is created. Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 16 of 22 In the case of Narandas Karsondas vs. S.A. Kamtam & Anr. (1977) 3 SCC 247, the Hon'ble Supreme Court observed as under:
"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".
In the case of Rambhau Namdeo Gajre vs. Narayan Bapuji Dhotra, 2004 (8) SCC 614, the Hon'ble Supreme Court observed as under:
"It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party."
27. The affidavit and possession letter also do not operate as sale. Merely stating about the sale on affidavit or handing over possession by possession letter does not transfer title.
28.The general power of attorney is also not a substitute of sale deed. It is trite law that a power of attorney merely creates an agency. No independent right of ownership is created by the said document. Had the document been intended to operate as a sale, the executant would have affixed advalorem stamp duty on the document, which is not the case herein. The executant has not, through the document, divested himself of rights over the property. The scope of a power of attorney has been elucidated by Hon'ble Supreme Court in the case of State of Rajasthan vs. Basant Nehata, 2005 (12) SCC 77 according to which a Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 17 of 22 power of attorney merely empowers the donee to perform certain acts on behalf of the donor. The agent continues to act only on behalf of the principal. The rights and liabilities remain of the principal himself in vicarious capacity. The principal/grantor reserves the right to execute similar power of attorney in favour of others as well as the right to revoke the power of attorney, as has been done in the present case. Besides, the general power of attorney dated 29.11.1994, in particular, does not substantiate the defence since it is not in favour of the defendant but only its director who, in law, is a distinct entity.
29.For the documents to result in transfer of title, they need to be compulsorily registered, as required under Section 17(1) of the Registration Act, 1908 and Section 54 of the Transfer of Property Act, 1882. Since the said documents are not registered, having regard to Section 49 of the Registration Act, 1908, the said documents cannot be deemed to be conferring any right, title or any interest in the suit property in favour of the defendant and are also inadmissible in evidence. In this behalf reference may be made to the decision of Hon'ble Supreme Court in the case of Suraj Lamp & Industries Pvt. Ltd vs. State of Haryana & Anr. 183 (2011) DLT 1. In the aforesaid decision, the Hon'ble Supreme Court has clearly laid down that such documents do not create any ownership right in immovable property. Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 18 of 22 The Hon'ble Supreme Court held as under:
"Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank - 94(2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some king of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions 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 transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property"
Hence, on the basis of the aforesaid documents, the defendant cannot claim to have acquired ownership rights in the suit property.
30.Having said so, it may be evaluated as to whether the aforesaid documents create any right at all in the suit property. In my opinion, the abovementioned documents may not confer title in favour of the defendant but do create a limited right in the property. This right is to obtain specific performance. Admittedly, the father of the plaintiffs had Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 19 of 22 agreed to sell property in favour of the defendant. He has also received sale consideration, as evident from the receipt dated 25.11.1994. The defendant is entitled to specific performance of this agreement to sell. This right has also been recognized by the Hon'ble Supreme Court in the case of Suraj Lamp & Industries Pvt. Ltd vs. State of Haryana & Anr. 183 (2011) DLT 1 (paragraph no. 18).
31. Thus, it is concluded that the only right that the defendant has in respect of the suit property is the right to obtain specific performance of the agreement to sell. This right is also subject to the law of limitation. It is in recognition of this right that the defendant was declared an "encumberor" by order dated 19.08.2003 passed by the Consolidation Officer. The said order has attained finality and cannot be questioned in these proceedings having regard to the provisions of Section 45 of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act. Hence it cannot be said that the defendant has no right in the property. It does have a restricted right, although limited and defined as above.
Whether the said restricted right of the defendant can be transferred by it.
32.The aforementioned restricted right is amenable to transfer. This is a benefit arising out of the contract which can be validly assigned. The right to obtain specific performance stems from the fact that the father Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 20 of 22 of plaintiffs had executed agreement to sell and had acknowledged receipt of sale consideration. The right is not personal in nature and there is no restriction on its transfer by the defendant to any other person.
33.To that extent, and no more, the defendant is entitled to create third party interest in the suit property. The plaintiffs have succeeded in making out a prima facie case for preservation of subject matter of the suit. Balance of convenience is in favour of the plaintiffs. Irreparable injury would be suffered by them in the event of the defendant transferring title of the property.
34.It is therefore directed that till the disposal of the suit, the defendant or its representatives shall not enter into any agreement for transfer of title over the suit property. They shall not claim to be the owner of the suit property. They shall however be at liberty to transfer their restricted rights, as delineated above, in the suit property after giving notice thereof to the plaintiffs.
35.With the aforesaid directions, the application under Order 39 Rules 1 and 2 read with Section 151 of Code of Civil Procedure filed by the plaintiffs is disposed off.
Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 21 of 22
36.Nothing stated herein shall be construed as an expression of final opinion on the merits of the case. It is further clarified that nothing stated herein shall impede the revenue authorities from discharging their duties in accordance with law. This clarification is being made at the request of the defendant.
(Ashish Aggarwal) Civil JudgeI/Dwarka Courts Delhi/20.03.2012 Dharambir Vs. M/S. Chintels Exports Pvt. Ltd.
C.S. No.314/11 page 22 of 22