Delhi District Court
Sh. Vijay Kumar vs Smt. Meena on 18 October, 2019
IN THE COURT OF MS. GITA,
CIVIL JUDGE-04(W), TIS HAZARI COURTS DELHI.
CS SCJ No.10920/2016
Sh. Vijay Kumar
S/o Sh. Baldev Raj,
R/o H. No. 10/65, Geeta Colony,
Delhi-110031 ...... Plaintiff
Versus
1. Smt. Meena
W/o late Sh. Rana Partap Singh
R/o C-32, First Floor, Tagore Garden,
Extension, Rahubir Nagar,
New Delhi-110027.
2. Sh. Rana Partap Singh (Now deceased)
Though his LRs:
(a)Smt. Meena W/o late Sh. Rana Partap Singh
(b)Sh. Ajeet Singh S/o late Sh. Rana Partap Singh
(c)Sh. Ranjeet Singh S/o late Sh. Rana Partap Singh
All R/o :
C-32, First Floor, Tagore Garden,
Extension, Rahubir Nagar,
New Delhi-110027.
(d)Ms. Vinny Boparai D/o late Sh. Rana Partap Singh
W/o Sh. Gaurav,
R/o E-198, East of Kailash, New Delhi.
CS SCJ No. 10920/2016 Pages 1/29
3. Sh. Gupreet Singh @ Sweenu
S/o late Sh. Pritam Singh,
R/o C-32, Ground Floor, Tagore Garden,
Extension, Raghubir Nagar,
New Delhi-110027.
4. The Sub-Registrar
Sub-District II, Janakapuri,
New Delhi-110058. ......... Defendants
SUIT FOR DECLARATION, CANCELLATION OF INSTRUMENTS AND
INJUNCTION
Date of Institution : 24.12.2008
Date of reserving judgment : 06.09.2019
Date of Decision : 18.10.2019
JUDGMENT
1. By this judgment, the present suit filed by the plaintiff against defendants for declaration, cancellation of instruments and injunction shall be disposed off.
2. Brief facts of the case as per plaint of the plaintiff are that the defendant no. 3 Sh. Gurpreet Singh @ Sweenu was owner of property bearing no. C-32, Area Measuring 80 sq yards, situated at Tagore CS SCJ No. 10920/2016 Pages 2/29 Garden Extension, Raghubir Nagar, New Delhi-110027 (hereafter referred to as the suit property) after the death of his father Sh. Pritam singh and he sold and transferred the same to the plaintiff for valuable consideration on 14th March, 2002 through General Power of Attorney, Agreement to Sell, Receipt, Will, Possession Letter, Affidavit all dated 14.03.2002 and received the full amount of consideration from him and delivered proprietary/symbolic possession of the suit property to the plaintiff on the said date and the plaintiff became absolute owner of the said property on 14.03.2002 by virtue of its purchase from the defendant no. 3. It is further stated in the plaint that the defendant no. 3 was in physical possession of the ground floor of the aforesaid property and other portions of the property were in occupation of the tenants on the date of its purchase by the plaintiff. The said defendant no. 3 sought some time upto end of March, 2002 for vacation of ground floor of the property and delivery of its physical vacant possession to the plaintiff to enable him to make arrangement for accommodation, but he failed to do the same, and suit for recovery of possession and damages is pending in the court of Sh. Manu Rai Sethi, Ld. ADJ, Delhi. It is further stated in the plaint that the defendant no. 2 had been a tenant in respect of first floor of the suit property under defendant no. 3 at a monthly rent of Rs.3,300/- per month, excluding other charges, and he attorned himself as a tenant under the plaintiff on purchase of the property by him on 14.03.2002 and his tenancy has been accordingly to English Calender month. The defendant no. 2 paid rent of the premises to the plaintiff upto August, 2004 and thereafter he failed to do the same with effect from 01.09.2004 CS SCJ No. 10920/2016 Pages 3/29 despite demands and legal notice dated 09.06. 2006, and as such a suit for recovery of possession, rent due and damages was filed against him on 02.07 2007, which is pending before the court of Ms. Shivali Sharma, Ld. Civil Judge, Delhi. The defendant no. 2 filed his written statement dated 03.12. 2007 in the said suit and he alleged therein that the documents dated 14.03.2002, such as GPA and Will in favour of the plaintiff were cancelled by the defendant no. 3 on 22.09.2005 and 16.09.2005, and the property in question was sold by the defendant no. 3 to defendant no. 1 on 10.01.2006 vide Agreement to Sell, SPA, GPA dated 10.01.2006 registered in the office of Sub-Registrar-II at Janakuri, Delhi for a consideration of Rs.2,25,000/-. It is further stated that it is on that day that the plaintiff came to know of the mischief and fraud played by the defendants in collusion with each other. It is further stated in the plaint that the Cancellation of GPA, Will and other sale documents dated 14.03.2002 in respect of the property by defendant no. 3 and alleged sale of the property by him to defendant no. 1 on 10.10.2006 is illegal and void ab-initio or voidable and it is invalid, as the defendant no. 3 had no right to cancel the documents dated 14.03.2002 in favour of the plaintiff, as the same were executed for valuable consideration. It is further stated in the plaint that the defendant no. 3 had no right to sell and transfer the suit property to defendant no. 1 through alleged documents of sale dated 10.01.2006 as he was not left with nay right or title in the property after its sale to the plaintiff on 14.03.2002 and to execute the documents of alleged sale, and the alleged sale transaction and documents dated 10.01.2006 executed in favour of the defendant CS SCJ No. 10920/2016 Pages 4/29 no. 1 are liable to be cancelled. It is further stated by the plaintiff that alleged cancellation deeds dated 22.09. 2005 and 16.09.2005 executed by the defendant no. 3 and registered in the office of the Sub-Registrar-II, Janakpuri, Delhi and alleged documents of sale deed dated 10.01.2006 executed by defendant no. 3 in favour of the defendant no. 1 in respect of the property are invalid, illegal, void or voidable, and these are liable to be cancelled by this court. It is further stated in the plaint that the plaintiff has a reasonable apprehension that the defendants no.1 and 2 may sell and transfer the suit property and deliver its possession to some one on the basis of alleged documents of sale dated 10.01.2006 to defeat and frustrate the decree that may be passed against them. Hence, the present suit.
3. Upon receipt of the plaint, the defendants were summoned. Defendant no. 3 entered appearance on 07.02.2012. However, stopped appearing thereafter. Subsequently vide order dated 01.03.2012, the defendant no. 3 was proceeded with ex-parte. Defendant no. 1, 2 and 4 entered their appearance through counsels and separate WS was also filed on behalf of the defendant 1 & 2 and 4. Vide order dated 31.08.2010, an application under Order 6 Rule 17 CPC moved on behalf of the defendant no. 1 and 2 was allowed for amendment of WS of defendant no.1 and 2.
4. The case of the defendant no. 1 and 2 as per their amended WS is that the present suit is barred under Order 2 rule 2 of CPC as the plaintiff CS SCJ No. 10920/2016 Pages 5/29 has already filed another suit for recovery of possession, rent/damages and injunction vide civil suit no. 316/2007, against the defendant no. 2 which is pending before the court of Ms. Shivali Sharma, Ld. Civil Judge on the same cause of action. Hence, the present suit is not permissible and liable to be dismissed with cost.
5. It is further stated in the WS that Sh. Gurpreet Singh @ Sweenu had also disclosed to the defendant no.1 that the property in dispute is free from all sorts of encumbrances, sale, mortgage, security and any litigation and also stated that he had executed a registered GPA and registered Will dated 14.03.2002 as a security in favour of the plaintiff, at the time when when he had taken certain amount of financial help from him, but he had return the said amount and even get the cancellation of the aforesaid registered GPA and aforesaid registered Will vide deed of registered cancellation deed of GPA dated 22.09.2005 and registered deed of cancellation of Will dated 16.09.2005 and now all the transaction between him and the plaintiff has been settled. It is further stated in the WS that the defendant no.1 has also filed a civil suit no. 1501/2006, which is pending before the court of Ms. Savitri, Ld. Civil Judge, Delhi when the defendant no. 3 and his sisters inclusion of each other with malafide intention and ulterior motive with each other adopting blackmailing tactics with threatening, hence there was never such alleged relationship of landlord and tenant as alleged by the plaintiff, exist between the plaintiff and the defendant no. 2. It is further stated in the plaint that the at the time of sale transaction the complete set of the CS SCJ No. 10920/2016 Pages 6/29 property in dispute including the allotment letters dated 13.11.1962 also handed over by the defendant no. 3 in favour of the defendant no.1 including receipt of the property in dispute, issued from the JJ Department of Delhi.
6. It is further stated in the WS that the plaintiff had never been in possession of the property in dispute, whereas the answering defendants has been enjoying the possession since last more than seven years and the plaintiff has never became the owner of the property in dispute as mentioned and it is only the defendant no.1 who is the registered and exclusive owner of the property in dispute. It is further stated in the plaint that the alleged facts of the plaintiff is nothing, but only misleading, concocted and baseless and without any substance, moresoever no suit suit as mentioned is pending before the court of Sh. Manu Rai Sethi, Ld. ADJ, Delhi. It is further stated in the WS that the plaintiff has manipulated the false and illegal documents without any rights. It is further stated in the WS that the alleged documents were fabricated and false without value in the eyes of law and moresoever in the name of security of certain amount of the defendant no. 3, the alleged documents with alleged unregistered relinquishment deed, which have no legal value has been executed, but the same was cancelled through registered documents and also informed through registered post by the defendant no. 3 and legal notice, but the same has been concealed by the plaintiff in order to mislead this court and to grab the valuable property of the defendant no. 1 who is the exclusive and registered owner of the CS SCJ No. 10920/2016 Pages 7/29 property in dispute. It is further stated in the WS that the defendant no. 3 being the general power of attorney holder of all the legal heirs of late Sh. Pritam Singh had every right, interest to execute the registered sale transaction documents of the property in dispute in favour of the defendant no.1, which is proper and legal way, but the plaintiff allegedly got the alleged transfer by virtue of illegal, baseless and manipulated/forge relinquishment deed of the legal heir of late Sh. Pritam Singh, which has no legal value and confirmed any independent/legal rights in favour of the defendant no. 3 as well as the plaintiff, which reflect the conduct of the plaintiff, who got certain documents for sake of security of his loan, from the defendant no. 3 without any possession of the property in dispute. Rest of the contents of the plaint are also denied by the defendant no. 1 and 2 and has prayed for dismissal of the suit.
7. The case of the defendant no.4 as per its WS is that the suit of the plaintiff is liable to be dismissed with heavy cost as he has not come to this court with clean hands and he has filed some documents regarding purchasing of the suit property from the defendant no. 3 and the plaintiff intentionally not paid the revenue stamp at the time of execution/transfer of the said property and the plaintiff has also theft the revenue stamp of Govt. because the Agreement to Sell dated 14.03.2002 executed and typed on only Rs.50/- stamp paper and sale consideration amount is mentioned Rs.2,25,000/-. On the part of the negligence, the plaintiff is not entitled to any relief from this court. It is further stated in the WS that the plaintiff never remained in the possession of the suit property. Rest of CS SCJ No. 10920/2016 Pages 8/29 the contents of the plaint are also denied by the defendant no. 4 and has prayed for dismissal of the present suit.
8. Replication was filed on behalf of the plaintiff to the WS of the defendant no. 1 and 2 and also to the amended WS wherein the contents of the plaint have been reiterated and contents of the WS and amended WS of defendant no. 1 and 2 were denied.
9. After completion of the pleadings, following issues were framed by Ld. Predecessor of this Court vide order dated 14.01.2013:
1. Whether the plaintiff is entitled to declaration of ownership as prayed for? OPP.
2 Whether the plaintiff is entitled to declaration that cancellation deed dated 22.09.2005 pertaining to GPA dated 14.03.2002 and cancellation deed dated 16.09.2005 pertaining to Will dated 14.03.2002 executed by defendant no. 3 are illegal and void? If so, its effect? OPP.
3. Whether the plaintiff is entitled to declaration that documents of sale dated 10.01.2006 executed by defendant no. 3 in favour of the defendant no. 1 with respect to suit property are invalid and void and of no consequences to the right and title of plaintiff? OPP.
4. Whether the plaintiff is entitled to direction as prayed for directing cancellation of documents i.e. sale deed dated 10.01.2006 registered in office of Sub-Registrar-II, Janak Puri, New Delhi with intimation to the said office for making necessary entries? OPP.
5. Whether the plaintiff is entitled to perpetual injunction restraining the defendant no. 1 and 2 and their agents from alienating, CS SCJ No. 10920/2016 Pages 9/29 transferring or disposing of suit property? OPP.
6. Whether the present suit is barred U/o 2 Rule 2 of CPC? OPD.
7. Whether the plaintiff has concealed material facts from the court? OPD.
8. Whether the present suit is maintainable in the present form?
OPP.
9. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD.
10. Whether this court does have pecuniary jurisdiction to decide the present suit? OPD.
11. Whether the suit has not been properly verified? If so, its effect? OPD.
12. Relief.
10. Thereafter, the matter was fixed for plaintiff's evidence.
11. The plaintiff has examined himself as PW-1 and tendered his affidavit Ex. PW1/A in evidence along with the documents which are as follows:
1. Certified copy of General Power of Attorney dated 14.03.2002; Ex. PW1/1.
2. Certified copy of Agreement to Sell dated 14.03.2002; Ex. PW1/2.
3. Certified copy of Will dated 14.03.2002; Ex. PW1/3.
CS SCJ No. 10920/2016 Pages 10/29
4. Certified copy of Receipt dated 14.03.2002; Ex. PW1/4.
5. Certified copy of Possession letter dated 14.03.2002; Ex. PW1/5.
6. Certified copy of Affidavit dated 14.03.2002; Ex. PW1/6.
7. Certified copy of Allotment letter dated 02.12.1993; Ex. PW1/7.
8. Copy of Judgment and Decree dated 07.05.2012; Ex. PW1/8.
9. True copy of Cacellation deeds dated 22.09.2005, 16.09.2005, True copy of Agreement to Sell dated 10.01.2006, True copy of SPA dated 10.01.2006 and True copy of GPA dated 10.01.2006; Mark P-1 to P-5.
10. 10. Certified copy of Eviction Petitions and Orders; Ex.
PW1/9 (the same was mentioned as Ex. PW1/8 the affidavit).
PW-1 was duly cross-examined by the Ld. Counsel for the defendant and discharged.
12. Thereafter, on a separate statement of Ld. Counsel for the plaintiff, PE was closed on 08.07.2015 and the matter was fixed for DE.
13. Defendant has examined five witnesses including herself in support of her contention. Defendant examined herself as DW-1 who tendered her affidavit Ex. DW1/1 in evidence along with the documents which are as follows:
1. Original registered agreement to sell dated 10.06.2006 vide registration no. 8282 in book no. 1, Vol. No. 13563 on page no. 14 CS SCJ No. 10920/2016 Pages 11/29 to 24; DW1/A-1.
2. Original registered Special Power of Attorney dated 10.06.2006; DW1/A-2.
3. Original GPA DATED 10.06.2006; DW1/A-3.
4. Cancellation of GPA dated 22.09.2005; Ex. DW1/B-1.
5. Cancellation of Will dated 16.09.2005; DW1/B-2.
6. Photocopy of Allotment letter in faovur of Sh. Pritam Singh dated 13.11.1962; Ex. DW1/C-1 to Ex. DW1/C-4.
7. Photocopy of notorized General Power of Attorney dated 13.04.2004; Ex. DW-1/D.
8. Original Water bills dated 02.05.2015 and 30.09.1996; Ex. DW1/E- 1 and Ex. DW1/E-2.
9. Original Electricity bills pertaining to the suit property of first floor and second floor; Ex. DW1/E-3 and Ex. DW1/E-4.
10. Photocopy of rectificaion order by MCD along with provisional demand notice and credit voucher; Ex. DW1/G-1 to Ex. DW1/G-3.
11. Photocopy of receipt of property tax to the MCD (West Zone); EX DW1/H-1 to Ex. DW1/H-4.
12. Photocopy of judgment dated 13.10.2009 is suit no. 124/2007; Mark-A.
13. Photocopy of Election ID Card; Ex. DW1/J-1 (OSR).
14. Photocopy of Voter I-Card and Aadhar Card of her husband;
Mark-D and Mark-E. It is pertinent to mention here that during the exhibiting of CS SCJ No. 10920/2016 Pages 12/29 documents, the date of Ex. DW1/A-1, DW-1/A-2 and DW-1/A-3 was wrongly mentioned as 10.06.2006 instead of 10.01.2006.
DW-2 Sh. Rohtas Malik, UDC, Delhi Urban Shelter Improvement Board Government of NCT of Delhi (Earlier Slum & JJ Department, MDC, Delhi) produced copy of provisional demand notice dated 20.06.2007 already exhibited as DW1/G-2 (OSR), copy of bank challan (demand notice no. 04346) dated 20.06.2007 deposited on 28.06.2007 already exhibited as Ex. DW1/G-3 (OSR).
DW-3 Sh. Pyare Lal, Property Tax Department, SDMC, Delhi produced the record i.e. rectification order dated 29.03.2007 already exhibited as DW1/G-1 (OSR).
DW-4 Sh. Pavinder Singh produced his voter ID card as Ex. DW4/1 (OSR). Further, he identified his signatures on the last page of the document Ex. DW1/D at point A as a witness.
DW-5 Sh. Vijay Kumar, Civil Defence Volunteer, Officer Sub-Registrar-II, Basai Dara Pur, Delhi has produced the original record of registration of cancellation of GPA dated 22.09.2005 already exhibited as Ex.DW1/B1, the photocopy of the same is exhibited as Ex.DW5/1. (OSR). The WILL dated 16.09.2005 already exhibited as Ex.DW1/B2, the photocopy of the same is now exhibited as Ex.DW5/2. (OSR). He had also produced the record pertaining to agreement to sale dated 10.06.2006 registered vide CS SCJ No. 10920/2016 Pages 13/29 registration no. 828, original of which is already exhibited Ex.DW1/A1 and photocopy of the same was exhibited as Ex.DW5/3.(OSR). Special Power Attorney registered vide registration no. 935, original of which is already exhibited as Ex.DW1/A2 and the photocopy of which was exhibited as Ex.DW5/4. (OSR). General Power of Attorney registered vide registration no. 937 already exhibited as Ex.DW1/A3 and the photocopy of which was exhibited as Ex.DW5/5.(OSR).
All the defendant's witnesses were duly cross-examined by the Ld. Counsel for the plaintiff and discharged except DW-5 for which opportunity was given but not availed.
14. No other witness was examined on behalf of the defendant and accordingly, on separate statement of the defendant no. 2, DE was closed vide order dated 18.04.2019. Thereafter, final arguments were heard on behalf of both the parties on 06.09.2019.
15. Submissions heard on behalf of both the parties. Record perused.
16. Written submissions were also filed on behalf of both the parties. Considered. Certain judgments were also filed on behalf of both the parties. Perused.
17. Ld. counsel for the plaintiff has argued that defendant no. 2 i.e. husband of defendant no.1 was a tenant in respect of first floor of the CS SCJ No. 10920/2016 Pages 14/29 suit property and the said fact was admitted in cross-examination of defendant no.1. He further argued that earlier a suit filed by the plaintiff against the defendant no. 2 was dismissed on the ground of rate of rent and not on the ground that there is no relationship of landlord and tenant between the parties. He further argued that defendant no.3 could not cancel the PoA and Will in view of Section 202 of the Indian Contract Act. He further argued that any subsequent purchaser is entitled to protection only if he/she is bonafide purchaser which is not the case here as the collusion of the defendant no.1 and 2 with the defendant no.3 is clear from the fact that the defendant no. 2 stood as attesting witness in the cancellation documents. He further argued that in view of Section 48 of Transfer of Property Act, the documents executed prior in time will prevail. He further argued that the defendant had not explained the capacity in which he was in possession of the suit property between 2002 to 2006. Hence, prayed that the present suit is liable to be decreed.
18. Per contra, Ld. Counsel for the defendant no. 2 and 3 has argued that the present suit is not maintainable in view of Order 2 Rule 2 CPC and is barred by Limitation as the documents were executed in favour of the plaintiff on 14.03.2002 and the present suit was filed on 22.12.2008 though the documents were executed in favour of defendant no.1 on 10.01.2006. However, the plaintiff has not taken any steps against the erstwhile owner, Sh. Sweenu Since 2002. He further argued that original documents of allotment of the suit property in favour of Sh. Pritam Singh i.e. partner of defendant no. 3 are with defendant no. 1 and 2. He further CS SCJ No. 10920/2016 Pages 15/29 argued that there is no relinquishment deed of six sisters of defendant no. 3 Sh. Sweenu in favour of defendant no. 3 at the time of execution of documents in favour of plaintiff though there is a mentioning of relinquishment by the sisters of defendant no. 3. He further argued that no rent receipt was produced by the plaintiff though he has alleged in his plaint that defendant no. 2 attorned himself as tenant under the plaintiff and paid rent upto August, 2004. He further argued that defendant no.1 is the bonafide purchaser of the suit property and is in the possession of the suit property whereas the plaintiff was never remain in possession of the suit property at any point of time. Hence, he has prayed for dismissal of the present suit.
Issue wise findings of this court are as follows:
Issue no.6: Whether the present suit is barred U/o 2 Rule 2 of CPC?
Issue no. 11: Whether the suit has not been properly verified? If so, its effect?
Issue no. 6 and 11 are taken up together.
The onus to prove these issue was upon the defendants specifically defendant no. 1. In respect of issue no. 6 and 11, the defendant no. 1 has not lead any evidence. Accordingly, issue no. 6 and 11 are decided CS SCJ No. 10920/2016 Pages 16/29 against the defendant no. 1 and in favour of the plaintiff.
Issue no.7: Whether the plaintiff has concealed material facts from the court?
The onus to prove this issue was upon the defendants specifically defendant no. 1.
19. Ld. counsel for the defendant no. 1 and 2 has argued that since the plaintiff has failed to disclose about another civil suit with respect to first floor of the suit property filed against the defendant no.3, Sh. Sweenu, the plaintiff has concealed material facts.
However, in the opinion of this court, what is fatal is the concealment of facts which are material for the adjudication of the present suit and non- disclosure about another suit can not be considered to be concealment of material facts.
Accordingly, issue no. 7 is also decided against the defendant and in favour of the plaintiff.
Issue no.8: Whether the present suit is maintainable in the present form? OPP.
The onus to prove this issue was upon the defendants specifically defendant no. 1.
CS SCJ No. 10920/2016 Pages 17/29 In this respect, ld. Counsel for the defendant no. 1 and 2 has relied upon the judgment of Hon'ble Supreme Court of India, titled as "Anathula Sudhakar vs. P. Buchi Reddy (Deceased) by Lrs & Ors." decided on 25.03.2008 wherein it is held hat in 2 nd part of para 11.3 that "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"
It is not disputed that the plaintiff was never remain in possession of the suit property. In the present case and even in other cases filed by the plaintiff, as has come during his cross-examination, the plaintiff has not asked for the relief of possession for the reasons best known to him.
Hence, in view of the judgment of Hon'ble Supreme Court of India (Supra), the plaintiff ought to have sought the relief of Possession.
According, issue no. 8 is decided in favour of the defendant no. 1 and against the plaintiff.
Issue no. 9: Whether the suit has not been properly valued for the purpose of court fees and jurisdiction?
Issue no. 10: Whether this court does have pecuniary jurisdiction to decide the present suit?
CS SCJ No. 10920/2016 Pages 18/29 The onus to prove these issues was upon the defendants specifically the defendant no. 1.
20. The plaintiff has valued the present suit at Rs.2,25,930/- for the purpose of court fee and jurisdiction, upon which court fee of Rs.4650/- was paid.
In order to decide issue no. 9, this court is enlightened with the judgment of Hon'ble Supreme Court of India titled as "Suhrid Singh @ Sardool Singh vs. Randhir Singh & Ors" decided on 29.03.2010, wherein it is held in para 6 that " where the executant of a deed wants it to be annulled, he was to seek cancellation of the deed. But if a non-executant seeks annulment of deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to ' A and B'- two brothers. 'A' executes a sale deed in favour of 'C'. Subsequently 'A' wants to avoid the sale. 'A' has to sue for cancellation of the deed. On the other hand, if 'B' who is not the executant of the deed, wants to avoid it, he has to suit for a declaration that the deed executed by 'A' is invalid/void and non-est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee CS SCJ No. 10920/2016 Pages 19/29 is also different. If 'A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorum court fee on the consideration stated in the sale deed. If 'B' who is non-executant, is in possession and sues for declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs.19.50 under Article 17
(iii) of Second Schedule of the Act. But if 'B' , a non-executant is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorum court fee as provided under Section 7 (iv) (c) of the Act. Section 7 (iv) (c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed. According to the amount at which the relief sought is valued in the plaint. The proviso there to makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.
In the present case, the plaintiff is the non-executant to the documents in respect of which he is seeking declaration. However, he is neither in possession of the suit property nor he has sought consequential relief of possession. Therefore, the facts of the present case are different and findings of the Hon'ble Supreme Court of India in the judgment cited above do not fit to the present case completely.
In view of the same, the valuation by the plaintiff appears to be CS SCJ No. 10920/2016 Pages 20/29 correct.
Since the plaintiff has valued the suit at Rs.2,25,930/-, this court does have jurisdiction to entertain the present suit.
Accordingly, issue no. 9 and 10 are decided against the defendant no. 1 and in favour of the plaintiff..
Issue no. 1: Whether the plaintiff is entitled to declaration of ownership as prayed for?
Issue no. 2: Whether the plaintiff is entitled to declaration that cancellation deed dated 22.09.2005 pertaining to GPA dated 14.03.2002 and cancellation deed dated 16.09.2005 pertaining to Will dated 14.03.2002 executed by defendant no. 3 are illegal and void? If so, its effect?
Issue No. 3: Whether the plaintiff is entitled to declaration that documents of sale dated 10.01.2006 executed by defendant no. 3 in favour of the defendant no. 1 with respect to suit property are invalid and void and of no consequences to the right and title of plaintiff?
Issue No. 4: Whether the plaintiff is entitled to direction as prayed for directing cancellation of documents i.e. sale deed dated 10.01.2006 registered in office of Sub-Registrar-II, Janak Puri, New Delhi with intimation to the said office for making necessary entries? OPP.
CS SCJ No. 10920/2016 Pages 21/29 Issue No. 5: Whether the plaintiff is entitled to perpetual
injunction restraining the defendant no. 1 and 2 and their agents from alienating, transferring or disposing of suit property?
Issue no.1, 2, 3, 4 and 5 are taken up together as the decision upon issue no. 2, 3, 4 and 5 depends upon the decision upon issue no.1.
The onus to prove these issues was upon the plaintiff.
21. The plaintiff has filed the present suit on the basis of Power of Attorney, Agreement to Sell, Receipt, Will, Possession Letter and Affidavit, all dated 14.03.2002 which are unregistered.
Section 101 of the Indian Evidence Act, 1872 defines "burden of proof"
and laid down that the burden of proving a fact always lies 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 the Indian 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 lie on any particular person.
CS SCJ No. 10920/2016 Pages 22/29 In the present case, the plaintiff claims himself to be the owner of the suit property on the basis of unregistered PoA, Agreement to Sell, Receipt, Will, Possession Letter and Affidavit, all dated 14.03.2002. The defendant no.1 and defendant no. 2 have denied the claim of ownership of the plaintiff. As per the defendant no.1 and 2, the suit property was purchased by the defendant no.1 from its erstwhile owner i.e. defendant no. 3, Sh. Sweenu vide registered GPA Set of documents dated 10.01.2006.
Further, it is not in dispute that the possession of the suit property is with defendant no.1 and the plaintiff never remained in possession of the suit property at any point of time. Therefore, firstly, it is for the plaintiff to show his ownership over the suit property before looking into defense of the defendant no.1 and 2 in view of section 101 of the Indian Evidence Act.
In order to decide issue no.1, it is necessary to cite certain relevant legal provisions.
Section 5 of the Transfer of Property Act, 1882 (hereinafter TP Act) defines 'transfer of Property' as under:
"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] and one or more other living persons; and "to transfer property" is to perform such act.
CS SCJ No. 10920/2016 Pages 23/29 [in this section "living person" includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals]".
Section 54 of the TP Act defines 'Sale' as under:
"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
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 placed when the seller places the buyer, or such person as he directs, in possession of the property. A contract for the sale of immovable property is contract that a sale of such property shall take place on terms settled between the parties. It does not, if itself, create any interest in or charge on such property".
Section 53 A of the TP Act defines 'Part Performance' reads as under:
"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, CS SCJ No. 10920/2016 Pages 24/29 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 has 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 there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under 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"
Section 17 of the Indian Registration Act, 1908 reads as under:
"Section 17- Documents of which registration is compulsory - (1) the following documents shall be registered, namely:
xxx
(b) other non-testamentary 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.
xxxxx (1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property, Act 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then they shall have no effect for the purpose of the said section 53A"
CS SCJ No. 10920/2016 Pages 25/29 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 "Raghunath & Ors vs. Kedar Nath" reported as AIR 1969SC1316.
The document of which registration is necessary under the Transfer of Property Act (such as under 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. In this respect, this court is further enlightened with the judgment of Hon'ble Supreme Court of India in "Suraj Lamps & Industries Pvt. Ltd. vs. State of Haryana & Anr." reported as (183 (2011) DLT (SC), wherein it was held that the documents of title i.e. GPA, Agreement to Sell, Will and Receipt would not confer ownership rights in respect of immovable property in his favour. Hon'ble Supreme Court of India vide order dated 15.05.2009 reported as "Suraj Lams & Industries Pvt. Ltd. vs. State of Haryana"
reported as 2009 (7) SCC (366) referred to ill-effects of GPA sales or Sale Agreement/GPA/Will transfer holding that there cannot be sale by execution of Power of attorney nor there can be transfer by execution of CS SCJ No. 10920/2016 Pages 26/29 agreement to sell and Power of attorney nor there can be transfer by execution of agreement to sell and Power of Attorney and Will.
From the judgment cited above, it is clear that unless there is a proper registered sale deed, title of an immovable property does not pass. The Hon'ble Supreme Court in the judgment cited above has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with doctrine of Part performance, 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 and devolution of Interest pursuant to a Will exist.
Therefore, no doubt, a person strictly may not have completed ownership rights unless there is 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.
It is settled position of law 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.
CS SCJ No. 10920/2016 Pages 27/29 In the present case, the plaintiff never had the possession of the suit property nor it can be said that ownership was transferred in favour of the plaintiff on the basis of unregistered GPA set of documents dated 14.03.2002. As far as defendant no.1 is concerned, it also cannot be said that the ownership was transferred in favour of defendant no.1 on the basis of registered GPA set of documents dated 10.01.2006 as the only way a contract of Sale can create title to immovable property is by way of a deed of 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 At, 1908. No such such document has been executed in favour of the defendant no.1 as well as the plaintiff. However, the defendant no.1 has the possession of the suit property.
In this respect, this court is enlightened with the Judgment of Hon'ble High Court of Delhi titled as "Ramesh Chand vs. Suresh Chand"
reported as 188 (2012) DLT 538 wherein it was held that right to possess immovable property arises not only from a complete ownership right but also by having a better title.
As such, in the present case, the defendant no.1 is having a better title in comparison to the plaintiff though it is true that the defendant no. 3, Sh. Sweenu i.e. erstwhile owner of the suit property could not cancel the Power of Attorney and Will dated 14.03.2002 in favour of the plaintiff.
In the present case, the plaintiff is claiming title on the basis of GPA set CS SCJ No. 10920/2016 Pages 28/29 of documents, but the said documents would not create any title in his favour. Hence, the plaintiff can not be said to be the owner of the suit property.
Accordingly, issue no.1 is decided against the plaintiff and in favour of the defendant no.1 In view of the finding of this court upon issue no. 1, issue no. 2, 3, 4 and 5 are also decided against the plaintiff and in favour of the defendant no.
1. Issue no. 12:
Relief:
22. In view of the aforesaid discussion, the plaintiff has not been able to prove that he is entitled for the reliefs claimed. The suit of the plaintiff is accordingly dismissed. No order as to costs.
23. Decree sheet be prepared accordingly.
24. File be consigned to record room after due compliance.
This order consist of 29 pages duly signed.
Digitally
signed by GITA
GITA Date:
2019.10.22
16:45:30
Pronounced in Open Court +0530
Today, 18th of October, 2019 (Gita)
CJ-04 (West),THC,
Delhi.
CS SCJ No. 10920/2016 Pages 29/29