Delhi District Court
Laxmi Devi vs Kamlesh on 22 August, 2024
IN THE COURT OF DISTRICT JUDGE -04,
(PRESIDED OVER BY: ANIL CHANDHEL)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLWT01-000890-2016
Civil DJ No. 609808/2016
LAXMI DEVI,
Widow of Late Munna Lal Gupta
R/o A-214, Commander Chowk,
Suraksha Vihar, Vikas Nagar,
Uttam Nagar, New Delhi-110059. ...Plaintiff.
Versus
1. KAMLESH
W/o Shri Suresh
2. SURESH
S/o Shri Ram Partap.
Both R/o part of Plot No. 82-83
Land measuring 200 sq.yards,
Out of Khasra No. 12/2/2,
Village Hastsal, Delhi State, Delhi,
Colony known as Deep Enclave,
New Delhi.
3. RAJ KUMAR GUPTA
4. ANUP KUMAR GUPTA
5. PANKAJ GUPTA
All sons of late Shri Munna Lal Gupta
6. KALPANA GUPTA
7. VINEETA GUPTA
Both D/o Late Shri Munna Lal Gupta
All C/o A-214, Commander Chowk,
Suraksha Vihar, Vikas Nagar,
Uttam Nagar,
ANIL
CHANDHEL
Laxmi Devi vs. Kamlesh & Ors. Page No. 1 of 30 Digitally signed by
ANIL CHANDHEL
Civil DJ No. 609808/2016 Date: 2024.08.22
16:16:42 +0530
New Delhi-110059. ...Defendants
SUIT FOR RECOVERY OF POSSESSION,
DAMAGES / MESNE PROFITS AND FOR
PERMANENT INJUNCTION.
DATE OF INSTITUTION : 20.02.2016
JUDGMENT RESERVED ON : 20.07.2024
JUDGMENT PRONOUNCED ON : 22.08.2024
Ld. Counsel for the Plaintiff : Mr. Jasmeet Kaur, Adv.
Ld. Counsel for the Defendants : None.
JUDGMENT
1. The Plaintiff has filed the present suit for recovery of possession of the suit property and for recovery of damages for unauthorized occupation of the property and permanent injunction. The suit was instituted against the six Defendants. The Defendant No.1 and 2 are the contesting Defendants, whereas the Defendant No. 3 to 7 are the proforma Defendants and no relief has been sought against the same.
2. The facts stated in the Plaint:
Digitally signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.08.22 16:16:50 +0530 Laxmi Devi vs. Kamlesh & Ors. Page No. 2 of 30 Civil DJ No. 609808/2016 The Facts, as set out in the plaint, are summed up in brief in the paras hereinbelow:
i. The husband of the Plaintiff, namely Late Munna Lal Gupta, and his brother, namely, Rakesh Gupta, jointly purchased the property bearing no. 82 (ad- measuring about 300 sq. yards) and plot no. 83 (ad- measuring about 200 sq. yards), out of Khasara No. 12/2/2, situated in the revenue estate of Village Hastsal, in a colony known as Deep Enclave, New Delhi.
ii. On 06.10.2010, a partition deed was executed between the two brothers namely Shri Munna Lal Gupta and Shri Rakesh Gupta. By virtue of the aforesaid partition deed, the land measuring 200 sq. yards, in part of property no. 82-83, out of Khasra No. 12/2/2, situated in the revenue estate of Village Hastsal, colony known as Deep Enclave, New Delhi, which is bounded as under, fell to the share of the Plaintiff's husband:-
East: Portion of plot North: Drain West: Road 25 Ft.
South: Other's plot
ANIL
CHANDHEL
Digitally signed
Laxmi Devi vs. Kamlesh & Ors. Page No. 3 of 30 by ANIL
CHANDHEL
Civil DJ No. 609808/2016 Date:
2024.08.22
16:16:55 +0530
iii. The Plaintiff's husband (Late Munna Lal Gupta)
died intestate and therefore, his aforementioned property fell to share of the Plaintiff and Defendant No.3 to 7 in 1/6th undivided share each.
iv. Late Munna Lal Gupta had authorized his brother Rakesh Gupta to look after the suit property and he kept on looking after the suit property till the death of the Plaintiff's husband.
v. After the death of Late Munna Lal Gupta, the Plaintiff took keen interest in the suit property and accordingly visited the same. The Plaintiff was shocked and surprised to see that the Defendants No. 1 & 2 had illegally and unauthorizedly occupied one room, one tin shed store, one tin shed kitchen and some open land on the ground floor of the aforesaid property. Immediately, on coming to now about the said fact, the Plaintiff requested the Defendant No. 1 & 2 to immediately vacate, and hand over the actual, vacant, peaceful and physical possession of the suit property in favour of the Plaintiff failing which appropriate legal action in accordance with law would be initiated against both the Defendant No. 1 & 2. However, the Defendants No.1 & 2, instead of acceding to the legitimate and legal request of the Plaintiff, threatened her with dire consequences.
ANIL
CHANDHEL
Laxmi Devi vs. Kamlesh & Ors. Page No. 4 of 30
Digitally signed
Civil DJ No. 609808/2016 by ANIL
CHANDHEL
Date:
2024.08.22
16:17:00 +0530
vi. The Defendants No. 1 & 2 have filed a false and
frivolous suit for injunction against the Plaintiff vide suit No. 261 of 2015 before the Court of Ld. Civil Judge -03, West District, Tis Hazari Courts, Delhi.
vii. The Defendants No. 1 & 2 are unauthorized sand illegal occupants in respect of the suit property under their unlawful use, occupation and possession and have no legal right to retain the possession of the same. The Plaintiff issued a legal notice, dated 28.01.2016, to both the Defendants thereby calling upon them to immediately hand over the possession of the suit property to her. The said notice was duly served upon the Defendants and they have failed to comply with the same.
viii. The Defendants No. 1 & 2 are unauthorized occupants of the suit property and liable to be vacate and handover the possession of the same to the Plaintiff. The Defendants are further liable to pay the damages /mesne profits for illegal use, occupation and possession of the suit property at the rate of Rs.10,000/-(Rupees Ten Thousand Only) per month from the date of filing of the present suit.
3. The facts stated in the Written Statement: ANIL CHANDHEL Digitally signed by ANIL CHANDHEL Laxmi Devi vs. Kamlesh & Ors. Page No. 5 of 30 Date: 2024.08.22 Civil DJ No. 609808/2016 16:17:04 +0530 3.1. The Defendant No.1 & 2 were duly served with the summons of the present suit and have entered appearance. The Defendant No. 1 and 2 have filed joint written statement and refuted the contentions of the plaint. The Defendant No.1 and 2 do not dispute that the Plaintiff's husband and his brother were owners of the suit property, however it is stated by them they were tenant in the suit property at the monthly rent of Rs.1,000/- for the last 14 years. The relevant averments, made by the Defendants No. 1 and 2 in their written statement and constituting their defence, are being summed up in brief in the paras hereinbelow:
i. The Plaintiff's husband was well aware that Defendant No.1 & 2, including their children, are residing in the suit property from last many years. The Defendant No.1 & 2 were paying the rent to the Plaintiff's husband and his brother, namely Shri Rakesh Gupta. After the death of the Plaintiff's husband, the rent is collected by Shri Rakesh Gupta, and Defendant No.1 & 2 are not aware, whether the share of the rent is given to the Plaintiff or not.
ii. The Defendant No. 1 & 2 are in legal possession in the suit property and they had taken the said premises from Rakesh Gupta and Munna Lal. The Defendant No. 1 and 2 gave Rs.1,50,000/- to ANIL CHANDHEL Laxmi Devi vs. Kamlesh & Ors. Page No. 6 of 30 Civil DJ No. 609808/2016 Digitally signed by ANIL CHANDHEL Date: 2024.08.22 16:17:09 +0530 Rakesh Gupta and Munna Lal for the construction of the house, thereafter the house was given 14 years ago to the Defendant No. 1 and 2.
iii. No legal notice was sent/served by the Plaintiff upon the Defendant No. 1 and 2. The Defendants No. 1 and 2 are regularly paying the rent Rs.1,000/- in the dairy. Rakesh Gupta is ready to come before the Court for the witness that he is receiving the rent of Rs. 1,000/-per month and also ready to give the statement that Rakesh Gupta and Munna Lal gave the suit premises on rent after taking Rs, 1,50,000/-. It is submitted that Defendant no. 1 and 2 has filed the documents in the Court of Ld. Civil Judge for receiving of rent and signatures of Shri Rakesh Gupta as an acknowledgment of rent.
3.2. The Defendant No.3 to 7 have not been served with the summons of the suit, in terms of the service report on record.
However on 15.11.2016, the Counsel for the Defendant No.3 to 7 appeared and filed his vakalatnama and joint written statement. The Defendant No.3 to 7 have admitted the claim of the Plaintiff and have supported her case, in their written statement. The Defendant No. 3 to 7 or their Counsel did not appear subsequent to filing of the written statement in the matter and remained absent in the proceedings.
ANIL CHANDHEL Digitally signed by ANIL Laxmi Devi vs. Kamlesh & Ors. Page No. 7 of 30 CHANDHEL Date: Civil DJ No. 609808/2016 2024.08.22 16:17:14 +0530
4. The facts stated in the Replication:
4.1 The Plaintiff has filed the replication to the written statement of the Defendant No. 1 & 2, wherein the Plaintiff has traversed the contents of same and has made the necessary denials, reiterating the averments of the plaint.
5. Issues:
5.1 On the basis of the pleadings of the parties, the following issues were framed on 14.07.2017: -
i. Whether Plaintiff is entitled for decree of possession of property bearing no. 82-83, out of Khasra No. 12/2/2, situated in revenue estate of village Hastsal, Delhi colony known as Deep Enclave, New Delhi.? OPP.
ii. Whether the Plaintiff is entitled for damages @ Rs.
10,000/- per month as prayed for a decree of possession as claimed? OPP.
iii. Whether the Plaintiff is entitled for permanent injunction as prayed for? OPP.
iv. Relief. ANIL
CHANDHEL
Digitally signed by
ANIL CHANDHEL
Date: 2024.08.22
16:17:19 +0530
Laxmi Devi vs. Kamlesh & Ors. Page No. 8 of 30
Civil DJ No. 609808/2016
6. The Plaintiff's Evidence:
6.1 The Plaintiff has led her evidence and has examined herself
in support of her case. The Plaintiff has appeared herself as PW-1. The Plaintiff has reiterated the contentions of the plaint in her examination-in-chief. She has exhibited and relied upon the following documents in his examination-in- chief:
i. Exhibit PW-1/1 (OSR) (Colly): Set of copies of ownership documents (pages 48 to 86) ii. Exhibit PW-1/2 (OSR): Copy of partition deed (pages 87 to 90) iii. Exhibit PW-1/3: Site plan.
iv. Exhibit PW-1/4: Office copy of notice dated 28.01.2016.
v. Exhibit PW-1/5(Colly): Original postal receipts and courier receipts.
The PW-1 was cross-examined by Ld. Counsel for the Defendant No.1 and 2 and was discharged upon conclusion of her cross examination.
7. The Defendant's Evidence:
7.1 The Defendant No.1 and 2 have led their evidence and have examined two witnesses. The Defendant No.1 has appeared herself as DW-1 and the Defendant No.2 has appeared as the ANIL CHANDHEL Laxmi Devi vs. Kamlesh & Ors. Page No. 9 of 30 Civil DJ No. 609808/2016 Digitally signed by ANIL CHANDHEL Date:
2024.08.22 16:17:24 +0530 DW-2.
7.2. The Defendant No.1 and 2 have reiterated the contentions of their written statement in their examination-in-chief. The Defendants have not filed any document, therefore, the Court directed the de-exhibition of the documents mentioned by the DW-1 and DW-2 in their affidavit of evidence. The DW- 1 and DW-2 were cross-examined by the Ld. Counsel for the Plaintiff and were discharged upon conclusion of her cross examination. The examination in chief and the cross-
examination of the DW-1 and DW-2 are both identical.
7.3. The Defendant No. 3 to 7 did not lead evidence in the matter.
8. Submissions of the Parties.
8.1. Ld. Counsel for the Plaintiff has addressed her arguments. It is submitted by Ld. Counsel for the Plaintiff that the Defendant No.1 and 2 do not dispute the ownership of the Plaintiff's husband and his brother and the same amounts to an admission of the Plaintiff's ownership as well. Ld. Counsel for the Plaintiff has submitted that the suit property was duly partitioned between the Plaintiff's husband and his brother and after the death of the Plaintiff's husband, she is a coowner of the same. It is submitted that the Defendant No.1 and 2 are unauthorized occupants in the suit property and the Plaintiff has a better right, title and interest in the suit ANIL CHANDHEL Laxmi Devi vs. Kamlesh & Ors. Page No. 10 of 30 Civil DJ No. 609808/2016 Digitally signed by ANIL CHANDHEL Date: 2024.08.22 16:17:29 +0530 property than the Defendant No.1 and 2, in terms of the documents relied upon by the Plaintiff and therefore, the suit should be decreed, in terms of its prayers. Ld. Counsel for the Plaintiff has relied upon the judgment passed by the Hon'ble Supreme Court of India, in "Sita Ram Bhama Vs. Ram Avtar Bhama: SLP (C) No. 11067 of 2017:
23.05.2018."
8.2. The Defendant No. 1 and 2 did not appear in the matter, after 31.10.2023 and did not address any arguments, despite the opportunities being given to them.
9. Conclusions on Issues and reasons for such conclusions:
9.1 Issue No. 1: Whether Plaintiff is entitled for decree of possession of property bearing no. 82-
83, out of Khasra no. 12/2/2, situated in revenue estate of village Hastsal, Delhi colony known as Deep Enclave, New Delhi.? OPP.
9.1.1. The onus to prove the Issue No.1 is upon the Plaintiff. The Plaintiff has claimed to be the co-owner of the suit property. It is stated by her that the Defendant No.1 and 2 were trespassers/unauthorized occupants in the same. Therefore, in order to prove the entitlement for possession, the Plaintiff ANIL CHANDHEL Laxmi Devi vs. Kamlesh & Ors. Page No. 11 of 30 Digitally signed Civil DJ No. 609808/2016 by ANIL CHANDHEL Date:
2024.08.22 16:17:34 +0530 has to prove her claim of ownership.
9.1.2. The Plaintiff has stated that the suit property is part of plot No.82 and 83, which were jointly purchased by her husband and husband's brother. It is further stated that the aforesaid property was partitioned, in terms of partition deed dated 06.10.2010, between the Plaintiff's husband and the husband's brother and the Plaintiff's husband became sole and absolute owner of the plot No.83, wherein the suit property is situated. It is stated that the Plaintiff's husband died intestate and upon his death, the Plaintiff and the Defendant No.3 to 7 became the joint owners of the plot No.83 as well as of the suit property. The Plaintiff has only examined herself as a witness in support of her case. The PW-1 reiterated the contentions of the plaint in her examination in chief.
9.1.3. The Plaintiff has stated that her husband and his brother purchased the plot No.82 and 83, in terms of the various documents, which are collectively exhibited in the suit as Exhibit PW-1/1 (colly). It is worth mentioning here that the purpose of exhibition is to facilitate the identification of the documents, for the reference of the Court. However the Plaintiff has exhibited 26 documents, by one Exhibition No., which does not, in any manner, facilitate the identification of each document. No reference has been made in the examination in chief as to which document pertains to which plot. The Exhibit PW-1/1 (colly) contains two sets of ANIL CHANDHEL Laxmi Devi vs. Kamlesh & Ors. Page No. 12 of 30 Digitally signed Civil DJ No. 609808/2016 by ANIL CHANDHEL Date: 2024.08.22 16:17:39 +0530 unregistered documents, wherein one set of documents pertains to the plot No. 82 and the other set of documents pertains to plot No. 83. The documents pertaining to the plot No. 82 are as follows:
i. General Power of Attorney dated 17.09.1998, executed by Manoj Paswan, in favour of Munna Lal Gupta and Rakesh.
ii. Deed of Will dated 17.09.1998, executed by Manoj Paswan, in favour of Munna Lal Gupta and Rakesh. iii. Another General Power of Attorney dated 17.09.1998, executed by Manoj Paswan, in favour of Munna Lal Gupta and Rakesh.
iv. Agreement to Sell dated 17.09.1998, executed by Manoj Paswan, in favour of Munna Lal Gupta and Rakesh.
v. Affidavit dated 17.09.1998, executed by Manoj Paswan in favour of Munna Lal Gupta and Rakesh. vi. Receipt dated 17.09.1998, executed by Manoj Paswan, in favour of Munna Lal Gupta and Rakesh. vii. Possession Letter dated 17.09.1998, executed by Manoj Paswan, in favour of Munna Lal Gupta and Rakesh.
viii. General Power of Attorney dated 16.09.1998, executed by Ms. Sumitra Devi, in favour of Manoj Paswan.
ix. Agreement to Sell dated 16.09.1998, executed by Ms. Sumitra Devi, in favour of Manoj Paswan. ANIL CHANDHEL Laxmi Devi vs. Kamlesh & Ors. Page No. 13 of 30 Digitally signed by ANIL CHANDHEL Civil DJ No. 609808/2016 Date: 2024.08.22 16:17:43 +0530 x. Affidavit dated 16.09.1998, executed by Ms. Sumitra Devi, in favour of Manoj Paswan.
xi. Receipt dated 16.09.1998, executed by Ms. Sumitra Devi, in favour of Manoj Paswan.
xii. Possession Letter dated 16.09.1998, executed by Ms. Sumitra Devi, in favour of Manoj Paswan. xiii. Deed of Will dated 16.09.1998, executed by Ms. Sumitra Devi, in favour of Manoj Paswan. xiv. General Power of Attorney dated 12.04.1998, executed by Ram Kishan and Om Parkash, in favour of Ms. Sumitra Devi.
xv. Affidavit.
xvi. Agreement to Sell dated 12.04.1998, executed by
Ram Kishan and Om Parkash, in favour of Ms.
Sumitra Devi.
xvii. Receipt dated 12.04.1998, executed by Ram Kishan
and Om Parkash, in favour of Ms. Sumitra Devi.
The documents pertaining to the Plot No. 83 are as follows:
i. General Power of Attorney dated 17.09.1998, executed by Manoj Paswan, in favour of Munna Lal Gupta and Rakesh.
ii. Agreement to Sell dated 17.09.1998, executed by Manoj Paswan, in favour of Munna Lal Gupta and Rakesh.
iii. Affidavit dated 17.09.1998, executed by Manoj ANIL CHANDHEL Laxmi Devi vs. Kamlesh & Ors. Page No. 14 of 30 Civil DJ No. 609808/2016 Digitally signed by ANIL CHANDHEL Date: 2024.08.22 16:17:48 +0530 Paswan, in favour of Munna Lal Gupta and Rakesh. iv. Receipt dated 17.09.1998, executed by Manoj Paswan, in favour of Munna Lal Gupta and Rakesh. v. Possession letter dated 17.09.1998, executed by Manoj Paswan, in favour of Munna Lal Gupta and Rakesh.
vi. General Power of Attorney dated 16.09.1998 executed by S. Gurjeet Singh, in favour of Manoj Paswan.
vii. Agreement to Sell dated 16.09.1998 executed by S. Gurjeet Singh, in favour of Manoj Paswan. viii. Affidavit dated 16.09.1998 executed by S. Gurjeet Singh, in favour of Manoj Paswan.
ix. Receipt dated 16.09.1998 executed by S. Gurjeet Singh, in favour of Manoj Paswan.
x. Deed of Will dated 16.09.1998 executed by S. Gurjeet Singh, in favour of Manoj Paswan.
9.1.4. The present suit is concerned only with the plot No.83, wherein the suit property is stated to be situated. However the Plaintiff has made a complex narrative of the description of the suit property and does not clearly spell out the physical description of the same. Though the Defendants do not dispute the description of the suit property, however the Plaintiff is still duty bound to clearly describe the suit property, so that it may be identified for the purposes of the prayer for possession. The description of the suit property is in para 2 and 3 of the Plaint and examination in chief. The Laxmi Devi vs. Kamlesh & Ors. Page No. 15 of 30 ANIL Civil DJ No. 609808/2016 CHANDHEL Digitally signed by ANIL CHANDHEL Date: 2024.08.22 16:17:58 +0530 aforesaid description does not clearly delineate as to in which part of the plot No. 83, the suit property is situated.
The only document filed for showing the physical description of the suit property is Exhibit PW-1/3, which is stated to be the site plan of the suit property. However, in the aforesaid document, it is mentioned that the aforesaid document is site plan for plot No.81 and 82, whereas the present case does not pertain to the plot No.81 at all. The case only pertains to the plot No.82 and 83 and more specifically to 83 only, which has been claimed to have fallen to the share of the Plaintiff's husband upon partition. Therefore, the Plaintiff has failed to prove the clear physical identification of the suit property as well as the structure situated in the same.
9.1.5. However the Plaintiff has to first meet the bigger challenge of proving her ownership. The documents, relied upon by the Plaintiff, are unregistered. The aforesaid documents are customary GPA set, alongwith the Will. The Wills, relied upon by the Plaintiff have not been proved in terms of Section 63 of Indian Evidence Act, 1925. No attesting witness has been summoned to prove the same. It has also not been mentioned whether the testators have passed away or not, since a Will comes into force only upon the death of a testator. Therefore, the aforesaid Wills do not confer any title on the Plaintiff. In so far as the other documents are concerned, the same also do not confer any title, on the predecessors of the Plaintiff, for the reason of the documents Laxmi Devi vs. Kamlesh & Ors. Page No. 16 of 30 ANIL Civil DJ No. 609808/2016 CHANDHEL Digitally signed by ANIL CHANDHEL Date: 2024.08.22 16:18:03 +0530 being unregistered.
9.1.6. It is apparent from the perusal of the aforesaid documents that the immovable property sought to be transferred in terms of the same is valued more than Rs.100/- and therefore, as per Section 54 of the Transfer of Property Act, 1882, such transfer is required to be compulsorily registered, in order to convey/confer the right, interest and title in the same.
9.1.7. Ld. Counsel for the Plaintiff has stated that the Plaintiff does not have to prove the absolute ownership in the suit property and has only to prove a better right than the Defendant No.1 and 2. It is stated that the Defendant No.1 and 2 do not have any document in their favour and therefore, the better right of the Plaintiff, in terms of Exhibit PW-1/1(colly) and Exhibit PW-1/2(OSR) is sufficient for seeking possession from the Defendant No.1 & 2. It is stated that the Plaintiff as well as her predecessors in interest could be construed as an attorney of the original owner, who did not have any objection to the rights of the Plaintiff to seek possession from the Defendant No.1 and 2.
9.1.8. The Hon'ble Supreme Court has held in, "Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana (11.10.2011) :
2011 INSC 739", that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance and the transactions of the nature of 'GPA ANIL CHANDHEL Laxmi Devi vs. Kamlesh & Ors. Page No. 17 of 30 Civil DJ No. 609808/2016 Digitally signed by ANIL CHANDHEL Date: 2024.08.22 16:18:08 +0530 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 immoveable property. The aforesaid proposition has been carried forward by the Hon'ble Supreme Court in "Shakeel Ahmed Vs. Syed Akhlaq Hussain (01.11.2023): 2023 INSC 1016", and the facts of the aforementioned case are also relevant to discussion at hand. In the aforesaid case, the Plaintiff has filed a suit for possession on the basis of unregistered documents. The Hon'ble High Court has decreed the suit on the ground that the Defendant has failed to prove his defence, the Plaintiff had a better title and further the Plaintiff could be construed as attorney of previous owner. The relevant observations of the Hon'ble High Court of Delhi in "Shakeel Ahmed Vs. Syed Akhlaq Hussain:2018:DHC:5311", are being reproduced hereinbelow:
"6. Trial court has disbelieved the case of the appellant/defendant that the suit property was gifted to the appellant/defendant by his brother Laiq Ahmed. I completely agree with the reasoning and conclusions of the trial court because trial court has referred to the fact that the stand of the suit property being gifted to the appellant/defendant was taken up for the first time only in the written statement and no such case was taken up by the appellant/defendant when he gave a Reply dated 24.4.2008 (Ex. PW1/O) to the Legal Notice dated 16.4.2008 (Ex. PW1/N) sent by the respondent/plaintiff. I also agree with the trial court that the issue of Gift Deed could not be believed because in the written statement filed by the appellant/defendant there were no names which were given as to who were the relatives and the other persons present when the alleged oral gift had ANIL CHANDHEL Laxmi Devi vs. Kamlesh & Ors. Page No. 18 of 30 Civil DJ No. 609808/2016 Digitally signed by ANIL CHANDHEL Date: 2024.08.22 16:18:13 +0530 taken place by Laiq Ahmed to his brother/appellant/defendant. Even in his affidavit by way of evidence filed by the appellant/defendant there was complete silence as regards the persons/their names who were present at the time of the alleged oral gift of the suit property made by Laiq Ahmed to his brother/appellant/defendant. I therefore agree with the conclusion of the trial court that appellant/defendant has failed to prove that the suit property was gifted to him by his brother.
7. Though not argued on behalf of the appellant/defendant one other issue which requires consideration is as to whether respondent/plaintiff can rely upon the unregistered documents dated 20.2.2008 being the Agreement to Sell (Ex. PW1/F), General Power of Attorney (Ex. PW1/G), Affidavit (Ex. PW1/H), Will (Ex. PW1/I), Receipt (PW1/J) in view of the Act 48 of 2001 becoming effective from 24.1.2001 and by which Act, documents such as agreement to sell cannot be looked into for conveying the title of part performance under Section 53A of the Transfer of Property Act, 1882 of the property unless the same are duly stamped and registered. Trial court in this regard has held that the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana and Anr.: 183 (2011) DLT 1 (SC) being only prospective in nature and therefore will not affect the validity of the subject documents executed in 2008, however in my opinion this reasoning is questionable, but the subject suit for possession still had to be decreed because respondent/plaintiff can definitely be said to be suing as an attorney for and on behalf of the owner Laiq Ahmed, and Laiq Ahmed is not in any manner objecting to the respondent/plaintiff taking possession of the suit property. Respondent/plaintiff therefore clearly is held to have an entitlement to take possession of the suit property, not only on behalf of the Laiq Ahmed but also because he had a better title to possession of the suit property than the appellant/defendant. This additional reasoning I am ANIL CHANDHEL Laxmi Devi vs. Kamlesh & Ors. Page No. 19 of 30 Civil DJ No. 609808/2016 Digitally signed by ANIL CHANDHEL Date: 2024.08.22 16:18:20 +0530 giving under Order XLI Rule 24 CPC. Trial court therefore, in my opinion, was justified in decreeing the suit for possession and mesne profits."
However in the appeal against the judgment of Hon'ble High Court, the Hon'ble Supreme Court has disagreed with the afore-mentioned reasoning, as highlighted above. The relevant observations of the Hon'ble Supreme Court are being reproduced hereinbelow:
"9. It was also submitted that there was a prohibition of registration of documents of transfer/conveyance with respect to the area where the property in question is situate and, therefore, the transfers affected under the customary documents was sufficient to confer title on the Respondent. It was also submitted that the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. v. State of Haryana and Anr. MANU/SC/1222/2011 : 183 (2011) DLT 1 (SC), which was of the year 2011, had prospective application and would not have any bearing on the title of the Respondents which came to him under the customary documents executed in the year 2008 much prior to the judgment in the case of Suraj Lamps & Industries (supra).
10. Having considered the submissions at the outset, it is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries(supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the Respondent would have acquired title over the ANIL CHANDHEL Laxmi Devi vs. Kamlesh & Ors. Page No. 20 of 30 Civil DJ No. 609808/2016 Digitally signed by ANIL CHANDHEL Date: 2024.08.22 16:18:25 +0530 property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to Sections 17 and 49 of the Registration Act and Section 54 of the Transfer of Property Act, 1882.
11. Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Even the judgment of this Court in the case of Suraj Lamps & Industries (supra) lays down the same proposition. Reference may also be made to the following judgments of this Court:
(i) Ameer Minhaj v. Deirdre Elizabeth (Wright) Issar and Ors. : 2018:INSC:578.
(ii) Balram Singh v. Kelo Devi : 2022:INSC:10111.
(iii) M/S Paul Rubber Industries Private Limited v.
Amit Chand Mitra: 2023:INSC:8542.
12. The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered documents with respect to immovable property. Once this is the settled position, the Respondent could not have maintained the suit for possession and mesne profits against the Appellant, who was admittedly in possession of the property in question whether as an owner or a licensee.
13. The argument advanced on behalf of the Respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on non-registration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view.
14. In case the Respondent wanted to evict the Appellant treating him to be a licensee, he could have maintained ANIL CHANDHEL Laxmi Devi vs. Kamlesh & Ors. Page No. 21 of 30 Digitally signed Civil DJ No. 609808/2016 by ANIL CHANDHEL Date: 2024.08.22 16:18:30 +0530 a suit on behalf of the true owner or the landlord under specific instructions of Power of Attorney as landlord claiming to have been receiving rent from the Appellant or as Attorney of the true owner to institute the suit on his behalf for eviction and possession. That being not the contents of the plaint, we are unable to agree with the reasoning given by the High Court in the impugned order.
15. For all the reasons recorded above, the impugned judgment deserves to be set aside and the suit deserves to be dismissed. Accordingly, the appeal is allowed. The impugned judgment is set aside and the suit is dismissed."
(highlighting and underlining added) The judgment in the Shakeel Ahmed (supra) has further been followed by the Hon'ble Division Bench of the Hon'ble Delhi High Court in "O.P. Sharma Vs. Punjab National Bank and Ors.(22.05.2024): 2024:DHC:4309-DB" to hold that customary documents in terms GPA etc. do not confer any title on a party and cannot be made basis to maintain any claim against a third party. The relevant observation of the Hon'ble Court are being reproduced hereinbelow:
"13. The customary documents on which the Petitioner herein relies upon to claim ownership over the flat no. 301 are colloquially referred to as the Power-of- Attorney sales. However, the Supreme Court has after taking note of this practice for Power-of Attorney sales categorically held that such transactions are not a legal mode of transfer of title in an immovable property. The Supreme Court after examining the mandatory provisions of the Registration Act, TP Act and the Indian Stamp Act, 1899 held that these documents do not create any right, title or interest in favour of the intending purchaser. The law on this issue was recently reiterated by the Supreme Court in Shakeel Ahmed v.
ANIL Laxmi Devi vs. Kamlesh & Ors. Page No. 22 of 30 CHANDHEL Civil DJ No. 609808/2016 Digitally signed by ANIL CHANDHEL Date: 2024.08.22 16:18:35 +0530 Syed Akhlaq Hussain MANU/SC/1257/2023 :
2023:INSC:1016, wherein the Court after referring to its earlier judgment held that the person relying upon the customary documents cannot claim to be the owner of the immovable property and consequently not maintain any claims against a third-party."
The aforesaid view of Shakeel Ahmed (supra) has further been followed by the Hon'ble High Court of Delhi in "Dheeraj Jain and Ors. Vs. Savitri Devi and Ors. (02.02.2024): 2024:DHC:744", to stress upon the fact that the law with regard to section 17 of the Registration Act, 1908 remained consistent all along and no cut-off date or a prospective date could have been read into such a provision. The relevant observation of the Hon'ble Court are being reproduced hereinbelow:
"75. ................................................It is manifest from the above, that any document of sale in respect of a property which is worth more than Rs. 100 is, mandatorily registrable. This issue has been reiterated and confirmed by the Supreme Court in the recent judgement in R. Hemalatha vs. Kashthuri, reported as MANU/SC/0344/2023 : 2023:INSC:336 : (2023) 10 SCC 725. 22-08-2024 (Page 20 of 25) www.manupatra.com Preeti Gupta The Supreme Court has also considered Suraj Lamps & Industries (P) Ltd. vs. State of Haryana, reported as MANU/SC/1021/2009 : (2009) 7 SCC 363 in Shakeel Ahmed vs. Syed Akhlaq Hussain reported as MANU/SC/1257/2023, and clearly held that no right, title or interest in immovable property can be conferred without the registered documents in respect thereto. It also clearly held that traditional documents like agreement to Sell, Will, Power of attorney etc., used by the parties for conveying interest in a property, in the absence of proper registered Sale Deed would be non-est in law Laxmi Devi vs. Kamlesh & Ors. Page No. 23 of 30 ANIL Civil DJ No. 609808/2016 CHANDHEL Digitally signed by ANIL CHANDHEL Date: 2024.08.22 16:18:39 +0530 and would not convey any title whatsoever, except to be used for specific performance. The Supreme Court held that the law in regard to section 17 of the Registration Act, 1908 remained consistent all along and no cut-off date or a prospective date could have been read into such a provision. It is undisputed in the present case that the Compromise Deed/ Relinquishment Deed is not registered under Section 17 of the Registration Act, 1908."
9.1.9. The Plaintiff, in the present case, does not state expressly in the plaint or evidence that she has filed the suit as an attorney of the original owner, with her/his permission to evict the Defendant No.1 and 2. The Plaintiff has contended to be an owner, in terms of the plaint. The documents relied upon by the Plaintiff are unregistered and thus, do no confer any legal title in favour of the Plaintiff or her predecessors in interest. Therefore, in terms of the law laid down by the Hon'ble Supreme Court of India in Shakeel Ahmed (Supra), the suit for possession, on the basis of aforesaid unregistered documents alone, on the facts stated in the plaint is not maintainable.
9.1.10. Ld. Counsel for the Plaintiff has submitted that the rights of the Plaintiff, should also be understood, in terms of the Exhibit PW-1/2, which is partition deed dated 06.10.2010. The deed of partition, i.e., Exhibit PW-1/2 is also an unregistered document. The aforesaid document itself creates interest in the suit property and any such document, creating, assigning, extinguishing or limiting the interest in the suit property is not independent of the clutches of the Section 17 of the Registration Act, 1908. From the terms of the ANIL CHANDHEL Laxmi Devi vs. Kamlesh & Ors. Page No. 24 of 30 Civil DJ No. 609808/2016 Digitally signed by ANIL CHANDHEL Date: 2024.08.22 16:18:44 +0530 aforesaid document, it is evident that the same is not a family settlement, but a deed of partition, which does not record a pre-occurred oral partition, however the partition is being effected and right are being created and taken away, in terms of the document itself. The Exhibit PW-1/2 records recitals, which in themselves create/extinguish the rights in the immovable property, the value of which is more than Rs.100/- and is therefore, required to be compulsorily registered. Thus, the document Exhibit PW-1/2 does not create any right either in favour of the Plaintiff or her predecessor in interest, for want of registration.
9.1.11. An interesting aspect of the matter is that the Defendant No.1 and 2 have admitted the title of the predecessor in interest of the Plaintiff. However, this Court is of the view that the admissions of the Defendant No.1 and 2 will not confer the title in the suit property, if the intention of law is otherwise. Though, it still remains to be assessed as to whether the Plaintiff is entitled to the prayer of possession, in view of the aforementioned admissions of the Defendant No.1 and 2. The admission by the Defendant No.1 and 2, of the title of the predecessor in interest of the Plaintiff, are conditional with the averments that the Defendant No.1 and 2 are tenants in the suit property @ monthly rent of Rs.1,000/- and they are not independent of the same. The Plaintiff has however failed to prove that the Defendant No.1 and 2 are unauthorized occupants of the suit property.
9.1.12. The Plaintiff has stated in para 6 of the Plaint and para 6 of ANIL CHANDHEL Laxmi Devi vs. Kamlesh & Ors. Page No. 25 of 30 Civil DJ No. 609808/2016 Digitally signed by ANIL CHANDHEL Date:
2024.08.22 16:18:50 +0530 the examination-in-chief that the Defendant No.1 and 2 are unauthorized occupants and have illegally occupied the suit property. It is stated that the Plaintiff has served a legal notice upon the Defendant No.1 and 2 for handing over the possession. However, the aforesaid contentions are denied by the Defendant No.1 and 2 in their written statement. It is stated by them that they are tenants at the rate of Rs.1,000/- per month, who have been previously been paying the rent to the Plaintiff's husband and his brother and after the death of the Plaintiff's husband, they have been paying rent to the brother of the Plaintiff's husband. If the cross-examination of the PW-1 is read alongwith her examination-in-chief, the same would reveal that the Plaintiff has failed to prove her contentions of the Defendant No.1 & 2 are trespassers or unauthorized occupants of the suit property. The cross- examination dated 23.07.2019 is reproduced hereinbelow:
"The defendants are not my tenants. They are occupying a portion in our area but were kept by my brother-in-law Sh. Rakesh Gupta. I am not aware of any rent paid by defendants, if any or to whom. Neither me or my family members or my late husband ever received any rent from the defendants. It is wrong to suggest that my husband ever took any rent from defendants but I am not aware about Sh. Rakesh Gupta."
" Defendants might be in occupation 100 sq. yards as I am not educated so I cannot tell the exact area in their occupation. I am only telling approximately. I cannot tell from which period the defendant are in occupation. I think I have made a complaint regarding the threats given to me by defendants but exactly I do not remember. I do not remember if I placed the said ANIL Laxmi Devi vs. Kamlesh & Ors. Page No. 26 of 30 CHANDHEL Civil DJ No. 609808/2016 Digitally signed by ANIL CHANDHEL Date: 2024.08.22 16:18:55 +0530 complaints on record or not."
9.1.13. Thus the Plaintiff herself admits that the Defendant No.1 and 2 were inducted in the suit property by her brother-in-law Mr. Rakesh Gupta. She does not have any idea as to when were they inducted into the property. She never states in the affirmative that she was ever in the possession of the suit property. She has stated in para 5 of the plaint that her husband had authorized his brother Rakesh Gupta to look after the suit property and he was accordingly taking care of the suit property. The Plaintiff has stated to have issued a legal notice to the Defendant No.1 and 2, however no proof of delivery of the same has either been filed or proved on record. Thus, the service of the aforesaid legal notice upon the Defendant No. 1 and 2 has also not been proved. The Plaintiff is herself not aware as to in what capacity, the Defendants are occupying the suit property, as she has not been dealing with the same and admits that the Defendant No.1 and 2 have been placed in possession by her brother-in- law, who was authorized by her husband to look after the property. If all the afore-discussed facts are read together, the same would lead to an irresistible conclusion that the Defendant No.1 and 2 are not unauthorized occupants but are in permissive possession of the same.
9.1.14.The only conclusion of the above discussion is that the possession of the Defendant No.1 and 2 is permissive, which can either be by way of a license or a lease. The Defendant No.1 and 2 states to be tenants in the suit property at the ANIL CHANDHEL Laxmi Devi vs. Kamlesh & Ors. Page No. 27 of 30 Digitally signed by Civil DJ No. 609808/2016 ANIL CHANDHEL Date: 2024.08.22 16:19:00 +0530 monthly rent of Rs.1,000/-. There is no evidence about the same, except oral averments. The rent is stated to be paid previously to the Plaintiff's husband and his brother and after his death to the Plaintiff's brother-in-law alone. A tenancy, in terms of Section 107 of the transfer of the Property Act, 1882 can also be oral accompanied with the delivery of possession. The suggestions given to the DW-1 and DW-2 about they not being the tenants have been denied by them in the cross-examination.
9.1.15.Though the Defendant No.1 and 2 have not examined Mr. Rakesh Gupta, however non-examination of Mr. Rakesh Gupta is more fatal to the case of the Plaintiff as the Plaintiff has herself admitted that Mr. Rakesh Gupta was authorized to deal with the suit property and was taking care of the suit property. She has further admitted that Mr. Rakesh Gupta has inducted the Defendant No.1 and 2 into the suit property. Therefore, the onus is upon the Plaintiff to show/prove that if the aforesaid Defendant No.1 and 2 are not the tenants, then in what capacity they have been inducted into the suit property by Mr. Rakesh Gupta, who was authorized to deal with the suit property, in terms of the admission of the Plaintiff. The contrary stands of the Plaintiff in the pleadings and the evidence about the nature of possession of the Defendant No.1 and 2 tilts the scale in favour of the Defendant No.1 and 2, who have maintained in the pleadings as well as in the evidence that they are tenants in the suit property at the monthly rent of Rs.1000/- since last 14 years.
ANIL
CHANDHEL
Laxmi Devi vs. Kamlesh & Ors. Page No. 28 of 30
Civil DJ No. 609808/2016 Digitally
signed by ANIL
CHANDHEL
Date:
2024.08.22
16:19:05
+0530
Therefore, on account of preponderance of probabilities, it can be concluded that the Defendant No.1 and 2 are in permissive possession of the suit property as the tenants at the rate of Rs.1000/- per month. Though the Plaintiff is at liberty to initiate appropriate proceedings for eviction in terms of the admission of the Defendant No.1 and 2, however the Plaintiff is not entitled to a decree of possession, on the basis of facts averred in the present suit. Accordingly, the Issue No.1 is decided against the Plaintiff and in favour of the Defendant No.1 and 2.
9.2. Issue No.2: Whether the Plaintiff is entitled for damages @ Rs. 10,000/- per month as prayed for a decree of possession as claimed? OPP.
The Issue No.1 has been decided against the Plaintiff and in favour of the Defendant No.1 and 2. Since the Plaintiff is not entitled to a decree of possession and the prayers for damages is consequential upon the decree of possession; therefore, the Plaintiff is not entitled to any damages, as prayed for. The Issue No.2 is accordingly decided against the Plaintiff and in favour of the Defendant No.1 and 2.
9.3. Issue No. 3: Whether the Plaintiff is entitled for permanent injunction as prayed for?
OPP.
Laxmi Devi vs. Kamlesh & Ors. Page No. 29 of 30 ANIL Civil DJ No. 609808/2016 CHANDHEL Digitally signed by ANIL CHANDHEL Date: 2024.08.22 16:19:12 +0530
The Defendant No.1 and 2 are only the tenants in the suit property. Being the tenants, they do not have any right to create any third party right, sublet or part with the possession of the suit property. Though the Plaintiff is not entitled to a decree of possession, however being the legal heir of one of the admitted landlord of the Defendant No.1 and 2, the Plaintiff is entitled to decree of permanent injunction against them. Accordingly, the Issue No. 3 is decided in favour of the Plaintiff and against the Defendant No.1 and 2.
10. Relief:
The suit of the Plaintiff is dismissed for the prayers of possession and damages/mesne profits. A decree of permanent injunction is passed, in favour of the Plaintiff and against the Defendant No.1 and 2, whereby the the Defendant No.1 and 2 are restrained from creating any third party rights, subletting or parting with the possession of the suit property in any manner, without due process of law. The decree sheet be drawn up accordingly. The files be consigned to record room after due compliance.
Digitally signed by ANIL CHANDHEL ANIL CHANDHEL Date:
2024.08.22 16:19:20 +0530 Announced in the open Court (ANIL CHANDHEL) today on 22nd of August, 2024 District Judge-04 (West District) THC/DELHI/22.08.2024 Laxmi Devi vs. Kamlesh & Ors. Page No. 30 of 30 Civil DJ No. 609808/2016