Delhi District Court
Mrs. Khatmul Nisha vs Tahir Ali on 18 March, 2015
IN THE COURT OF CIVIL JUDGE, SOUTH EAST
DISTRICT, SAKET COURTS COMPLEX, SAKET, DELHI
Presiding Officer: Dinesh Kumar, DJS
Suit No.824/2013
Unique ID no. 02406C0120782013
In the matter of :
Mrs. Khatmul Nisha
W/o Sh. Asghar Ali
R/o H. NO. K3, Abul Fazal Enclave
PartI, Jamia Nagar, New Delhi ..........Plaintiff.
Vs
1. Tahir Ali, S/o Mr. Mustaq Khan
R/o Mohalla Nanu Khan
Village Gulawati, Distt Bulandsahar, U. P.
ALSO AT:
H. No.343, DBlock, Jaitpur, PartII, New Delhi
2. Nuruddin S/o Mr. Zafaruddin @ Zafar Supari
3. Zafaruddin @ Zafar Supari
S/o Mr.
Both R/o H. No.343, DBlock
Jaitpur, PartII, New Delhi .......Defendants.
Date of institution of Suit : 13.05.2013
Date on which order was reserved : 24.02.2015
Date of pronouncement of the order : 18.03.2015
CS No.824/2013 Mrs. Khatmul Nisha vs Tahir Ali & Ors. Page 1 of 18
SUIT FOR PERMANENT AND MANDATORY
INJUNCTION
JUDGMENT
1. Vide this judgment, I shall decide the present suit filed by the plaintiff for permanent and mandatory injunction. The plaintiff has stated her case as under:
1.1. The husband of the plaintiff Sh. Asghar Ali, purchased a property no. E383, measuring 116 sq. yards, carved out of khasra no.732, situated at Jaitpur Extn. PartII, New Delhi (hereinafter called 'suit property') from Sh. Devender S/o Sh.
Dhyanni Ram R/o Kangar Mohalla, vilalge Tughlakabad, New Delhi by virtue of GPA, agreement to sell, affidavit, will, receipt, possession letter, all dated 01.04.2003, for a total sale consideration of Rs.30,000/. The plot number of the said plot now exists as E383, Jaitpur, Gadda colony, New Delhi. After purchasing the property, the plaintiff and her husband constructed a 3 ft. boundary wall.
1.2. The husband of the plaintiff further alienated and transferred the suit property in favour of the plaintiff by virtue of GPA, affidavit, will and possession letter, all dated 24.05.2005, as her husband is working in Dubai. Hence, the plaintiff has become the absolute and sole owner of the suit property and since then she CS No.824/2013 Mrs. Khatmul Nisha vs Tahir Ali & Ors. Page 2 of 18 is in possession of the property.
1.3. On 02.10.2010 the plaintiff along with her children was getting cleaned her plot. At that time the defendants came and threatened the plaintiff and her children and ill treated them. Her son called at 100 number. Police came at the suit premises but no action had been taken against the defendants. The plaintiff also brought the matter in the notice of the concerned SHO PS Jaitpur by way of a written complaint dated 02.10.2010 but no action has been taken against the defendants. On 07.10.2010 the plaintiff made complaint to the DCP, South East, Sarita Vihar, New Delhi. The complaint was referred to the SDM and before the Court of SDM proceedings U/s 145 Cr.P.C. are pending. The SDM on 23.08.2011 passed an order to maintain status quo. However, the defendants have been adamant in selling out the abovesaid property. On 08.11.2011 the son of the plaintiff went to inspect the abovesaid plot. He found that the defendants along with their goonda associates had taken out bricks and were taking rori badarpur from the plot of the plaintiff. When the son of the plaintiff tried to stop the defendants, they threatened son of the plaintiff not to report the matter to the police or any other authority otherwise he and his family would have to face dire consequence. The son of the plaintiff made complaint to SHO, PS Jaitpur on CS No.824/2013 Mrs. Khatmul Nisha vs Tahir Ali & Ors. Page 3 of 18 10.11.2011. However, no action has been taken. 1.4. On 23.05.2012 the defendants along with their goonda associates forcibly entered into the house of the plaintiff to search the son of the plaintiff. However, the son of the plaintiff was not at home. The defendants left the premises threatening them. Later on, they started threatening the plaintiff to commence illegal and unauthorized construction on the plot of the plaintiff despite status quo order passed by SDM. The plaintiff has apprehension of being dispossessed from the the suit premises by the defendants. She also has apprehension that the defendants may grab the property by forging and fabricating title documents etc. The defendants have attacked the son of the plaintiff on 01.05.2013. They are forcing the plaintiff to transfer the property in their name. Hence, the present suit has been filed with the following prayer:
"(a) a decree for permanent injunction thereby restraining the defendants, their agents, attorneys, employees, legal heirs, assignees, representative etc. from creating third party interest, part with and dispossessing the plaintiff from the suit property, i.e. property no.7, measuring 116 sq. yards, cared out of khasra no.732, situated at Jaitpur Extn. PartII, New Delhi and;
(b) a decree for mandatory injunction thereby directing the defendants, their agents, attorneys, representative etc. not to visit the property of the plaintiff i.e. property no.E383, measuring 116 sq. yards, carved out of khasra CS No.824/2013 Mrs. Khatmul Nisha vs Tahir Ali & Ors. Page 4 of 18 no.732, situated at Jaitpur Extn. PartII, New Dehi110044 and to the plaintiff and not harass, abuse, torture threaten her and her family members and also direct the defendants not to pressurize and force the plaintiff to sell out the property either in favour of the defendants or any other person of their choice."
2. The defendants have been served. They have filed their joint WS. They have taken objections, interalia, that the plaintiff has not approached the Court with clean hands and that she has suppressed the material facts. They have stated as under:
2.1. The defendant no.1 has purchased the suit property i.e. property bearing no.7, measuring 116 sq. yards carved out of the khasra no.732, situated at Jaitpur Extn. PartII, New Delhi from Late Ved Prakash S/o Shri Khimman, R/o Gali no.10, Tuglakabad, New Delhi vide GPA, agreement to sell, affidavit, receipt, possession letter and will dated 19.02.2001 and has constructed the boundary wall of the plot in question. He is in possession of the suit property since then.
2.2. The property is also known as E383, Jaitpur Extn.
Kangar Mohalla. However, it is denied that the husband of the plaintiff had purchased the suit property. The defendant no.1 is in possession of the suit property since 2001.
2.3. Defendant no.1 had constructed three feet boundary CS No.824/2013 Mrs. Khatmul Nisha vs Tahir Ali & Ors. Page 5 of 18 wall with the help of the defendant no.2 and 3 who are relatives of the defendant no.1 and residing in the vicinity of the property in question. Neither plaintiff nor her husband were in possession of suit property. The plaintiff has filed forged and fabricated documents. The plaintiff with her children had tried to trespass in the suit property. The defendants received the information that some stranger had entered into the suit property. The defendant no. 2 rushed to the plot and informed the people. On questioning the plaintiff told that the property belonged to her. However, the defendant no. 2 said that it was their property. Police was called. The son of the plaintiff made complaint at local police station to create false evidence. The defendants were called at police station. When they had shown their documents of the suit property, the police allowed them to leave. The plaintiff is making complaints at various forums to create false evidence. She has made false allegations. Hence, it is prayed, suit may be dismissed.
3. The plaintiff has filed replication in which she has denied the allegations made in the WS and reiterated the facts stated in plaint.
4. On the basis of pleadings following issues have been framed vide order 07.11.2013.
1. Whether the plaintiff is entitled to decree of CS No.824/2013 Mrs. Khatmul Nisha vs Tahir Ali & Ors. Page 6 of 18 permanent injunction as prayed for ? OPP
2. Whether the plaintiff is entitled to decree of mandatory injunction as prayed for ? OPP
3. Whether the suit is not maintainable in its present form ? OPD
4. Whether the suit is bad for misjoinder of parties, i.e. defendant no.2 and 3 ? OPD
5. Relief.
5. The plaintiff has examined four witnesses to prove her case. The plaintiff has examined Sh. Afsar Ali, as PW1, Sh. Devender as PW2, Sh. Habib Ahmed as PW3 and Sh. Mohd. Babudin as PW4. PW1 has tendered his evidence by way of affidavit. He has reiterated the facts stated in the plaint. PW1 has relied upon the following documents.
a) SPA dated 02.01.2014 is Ex.PW1A1;
b) GPA, agreement to sell, possession letter, receipt, affidavit, will, executed by Devinder are Ex.PW1/A (colly8 pages);
c) site plan is Ex.PW1/B;
d) GPA, affidavit, will and possession letter all dated 24.05.2005 executed by husband of plaintiff in her favour Ex.PW1/A2 (colly);
e) photocopy of complaint dated 02.10.2010 to SHO PS CS No.824/2013 Mrs. Khatmul Nisha vs Tahir Ali & Ors. Page 7 of 18 Jaitpur is Ex.PW1/C;
f) photocopy of complaint dated 07.10.2010 is Ex.PW1/D;
g) photocopy of status quo order dated 23.08.2011 passed by SDM is Ex.PW1/E;
h) photocopy of Kalandra is Ex.PW1/F;
i) copy of complaint dated 10.11.2011 is Ex.PW1/G;
j) copy of complaint bearing DD no.56 B dated 23.05.2012 is Ex.PW1/H;
k) copy of complaint dated 05.04.2013 is Ex.PW1/I;
l) photocopies of medical treatment as well as injury photographs and complaint made to the police station are Ex.PW1/J (colly).
m) Certified copies of various documents are Ex.PW1/K (page 113) (colly).
6. The PW2, PW3 and PW4 have supported the case of the plaintiff. All witnesses have been cross examined.
7. The matter was fixed for DE. However, the defendants stopped appearing. Their opportunity to lead DE was closed. They did not appear for final arguments also.
8. I have heard the Ld. counsel for the plaintiff and carefully perused the material on record. My issue wise findings CS No.824/2013 Mrs. Khatmul Nisha vs Tahir Ali & Ors. Page 8 of 18 are as follows.
9. Issue no.4: This issue reads as under:
"Whether the suit is bad for misjoinder of parties, i.e. defendant no.2 and 3 ? OPD"
10. The issue is taken first as it is related to the maintainability of the suit. The onus to prove this issue was on the defendants. However, no evidence is led by the defendants. They have not appeared for arguments. Perusal of record would show that the plaintiff has made specific allegations against defendant no.2 and 3 also. Their application under order 1 Rule 10 CPC for deleting them from suit was also dismissed by the Court vide order dated 12.05.2014. Further, a suit cannot be dismissed only on the basis of the fact that certain parties were misjoined. Misjoinder of parties cannot be a basis of dismissal of the suit. Therefore, I am of the considered opinion that the suit is not bad. There is no misjoinder of parties. The issue is therefore decided against the defendants and in favour of the plaintiff.
11. Issue no.3: This issue reads as under:
"Whether the suit is not maintainable in its present form ?OPD"
12. The onus to prove this issue was on the defendants. However, the defendants have neither led evidence nor they have CS No.824/2013 Mrs. Khatmul Nisha vs Tahir Ali & Ors. Page 9 of 18 appeared for the purpose of arguments. In the WS, the defendants had taken the objection that the suit is not maintainable as no cause of action has arisen in favour of plaintiff. It is stated that the plaintiff was claiming ownership of the suit property on the basis of forged and fabricated documents. However, no evidence is led by the defendants to prove that the documents are forged and fabricated. They have failed to lead any evidence. In this circumstances, I am of the considered opinion that the plaintiff has a cause of action and suit is maintainable in its present from. The issue is decided against the defendants and in favour of plaintiff.
13. Issue no.1 and 2: These issues read as under:
"1. Whether the plaintiff is entitled to decree of permanent injunction as prayed for ? OPP "2. Whether the plaintiff is entitled to decree of mandatory injunction as prayed for ? OPP"
14. These issue are taken together as they require common discussion. The onus to prove these issues was on the plaintiff. The plaintiff has examined four witnesses to prove that she is entitled to the relief of permanent and mandatory injunction as claimed by her. PW1 is the son of plaintiff and her SPA also. PW2 Devender is alleged seller of the suit property to the husband of the plaintiff. He has admitted that he had executed those CS No.824/2013 Mrs. Khatmul Nisha vs Tahir Ali & Ors. Page 10 of 18 documents. PW3 Habib Ahmad is alleged dealer who had managed the dealing of the property between the plaintiff's husband and Devender, PW2. He claims himself to be the witness also of the documents. He has stated that plaintiff is in possession of suit property and that she had constructed the boundary wall of the suit property. He has also stated that defendants were trying to grab the suit property and that they have created false documents. PW4 is another purchaser who had purchased property from Devender. He also claims himself as witness of the documents. He has also deposed similar to PW3.
15. In the present case, the plaintiff has claimed that she is the owner and in possession of the suit property. PW1 has relied upon various documents which are Ex.PW1/A to Ex.PW1/K. However, I am of the considered opinion that the alleged documents of ownership are not able to transfer any title in the suit property in favour of the plaintiff. The documents are unregistered even though the alleged agreement to sell has been accompanied with the alleged possession letter. After amendment in the Registration Act an unregistered agreement to sell coupled with possession of the suit property cannot be taken into account. After amendment in the Registration Act in the year 2001, Section 17 (1 A) was inserted. As per the Section a document containing CS No.824/2013 Mrs. Khatmul Nisha vs Tahir Ali & Ors. Page 11 of 18 contracts to transfer for consideration, any immovable property for the purpose of section 53 A of the Transfer of Property Act, 1882, shall be registered if they have been executed on or after the commencement of the Amendment Act, 2001. If such documents are not registered on or after such commencement then they shall have no effect for the purpose of Section 53 A.
16. Further, Hon'ble Supreme Court of India has also laid down that any transfer of property by way of GPA, will, etc. is not a valid transfer of immovable property in the eyes of law. In Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana, (2012) 1 SCC 656 the Hon'ble Supreme Court of India has held:
"19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subjectmatter.
"Scope of power of attorney "20. A power of attorney is not an instrument of transfer CS No.824/2013 Mrs. Khatmul Nisha vs Tahir Ali & Ors. Page 12 of 18 in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.
"21. In State of Rajasthan v. Basant Nahata [(2005) 12 SCC 77] this Court held: (SCC pp. 90 & 101, paras 13 &
52) "13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
*** "52. Execution of a power of attorney in terms of CS No.824/2013 Mrs. Khatmul Nisha vs Tahir Ali & Ors. Page 13 of 18 the provisions of the Contract Act as also the Powers of Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
"An attorneyholder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.
"Scope of will "22. A will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the lifetime of the testator. It is said that so long as the testator is alive, a will is not worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. (See Sections 69 and 70 of the Succession Act, 1925.) Registration of a will does not CS No.824/2013 Mrs. Khatmul Nisha vs Tahir Ali & Ors. Page 14 of 18 make it any more effective.
"Conclusion "23. Therefore, an SA/GPA/will transaction does not convey any title nor creates any interest in an immovable property. The observations by the Delhi High Court in Asha M. Jain v. Canara Bank [ (2001) 94 DLT 841] , that the "concept of powerofattorney sales has been recognised 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 kind of a recognised or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognise or accept SA/GPA/will transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
"24. 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 recognised 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. They cannot be recognised as deeds of title, except to the limited extent of Section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply not CS No.824/2013 Mrs. Khatmul Nisha vs Tahir Ali & Ors. Page 15 of 18 only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/will transactions known as GPA sales."(emphasis supplied)
17. Thus, the Hon'ble Supreme Court of India has categorically held that any transfer of the property on the basis of GPA etc. is no transfer in the eyes of the law.
18. In the present case, the documents are unregistered.
Further, the chain of documents is not complete. There is nothing on record to show as to how Devender had become owner of the suit property. It is well settled principle of law that no one can transfer a letter title than the himself has. The complaints filed by the plaintiff are also not able to show that she is the owner of the suit property.
19. Be that as it may, the possession of the plaintiff has been proved, on the balance of probability. The defendants have failed to lead any evidence. Their averments in the WS have not been tested on the touchstone of evidence. Therefore, averments in WS cannot be relied upon by the Court. Witnesses have stated that plaintiff is in possession of the suit property. Hence, I am of the considered opinion that the plaintiff has shown, on the CS No.824/2013 Mrs. Khatmul Nisha vs Tahir Ali & Ors. Page 16 of 18 preponderance of probability, a better title in her favour. She has also shown, on the balance of probability, that she is in possession of the suit property. Even though, the documents filed by the plaintiff are not able to prove that she is owner of the suit property, she has shown a better title.
20. The defendants have failed to lead any evidence. In these circumstances, I am of the considered opinion that the plaintiff has right to protect her possession. As per law, a person has every right to protect his or her possession against the whole world except the true owner. In the present case also the plaintiff has right to protect her possession of suit property against the defendants. Therefore, I am of the considered opinion that the plaintiff is entitled to a decree of permanent injunction thereby restraining the defendants from creating any third party interest in the suit property and from dispossessing the plaintiff from the suit property without following due process of law. Therefore, the issues are decided in favour of the plaintiff and against the defendants.
21. Issue no.5: Relief.
In the light of discussion hereinabove, suit of the plaintiff is decreed. The defendants are hereby restrained from dispossessing the plaintiff from the suit property bearing no.E383, CS No.824/2013 Mrs. Khatmul Nisha vs Tahir Ali & Ors. Page 17 of 18 measuring 116 sq. yards,(size 29' X36') out of khasra no.732, situated at Jaitpur Extn. PartII, New Delhi, as shown in red colour in site plan Ex.PW1/B. Defendants are further restrained from creating any third party interest in the suit property. Site plan Ex.PW1/B shall be part of decree.
22. Decree sheet be prepared accordingly.
Pronounced in the open Court (Dinesh Kumar) th on this 18 day of March, 2015. Civil Judge, South East, Saket Court, New Delhi.CS No.824/2013 Mrs. Khatmul Nisha vs Tahir Ali & Ors. Page 18 of 18