Delhi District Court
Zaki Hasan Ors vs Salauddin Ors on 29 March, 2025
IN THE COURT OF DISTRICT JUDGE - 02
CENTRAL DISTRICT: TIS HAZARI COURTS, DELHI
Presided By- Sh. Sandeep Kumar Sharma, DHJS.
CS DJ No. 10556/2016
CNR No. DLCT01-000153-2012
In the matter of:-
1. Sh. Bilal Hasan
S/o Late Zaki Hasan
2. Razi Hasan
S/o Late Zaki Hasan
3. Ms. Tuba Tanvir (Now Major in Age)
All C/o :
3105, Sir Syed Ahmed Road,
Darya Ganj, New Delhi
... PLAINTIFFS
VERSUS
1. Sh. Salauddin
2. Nayabuddin
3. Jamaluddin
All sons of Sh. Qayamuddin
All R/o : 328, Bazar Delhi, Gate,
Delhi
4. Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Delhi
5. Smt. Zar Nigar Fatma
W/o Sh. Naseem Ahmed
Judgment dated 29.03.2025
CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 1 of 35
SANDEEP Digitally
SANDEEP
signed by
KUMAR KUMAR SHARMA
Date: 2025.04.01
SHARMA 16:52:16 +0530
R/o 12A/137, Maujpur, Shahdara, Delhi
6. Sh. Shamshad Ahmed
S/o Sh. Abdul Rauf
R/o A-55/106, Gaffar Manzil,
Zamia Nagar, New Delhi.
7. Smt. Shabnam Praveen
W/o Sh. Gulshan Ali
R/o 992, Gali Neemwali,
Ballimaran, Delhi - 110006
8. Smt. Hasiba Khatun
W/o Sh. Rafi Ullah
R/o Kotra, Ahmer,
Rajasthan.
...DEFENDANTS
Date of institution of suit : 13.02.2012
Date of reserving for order : 19.03.2025
Date of decision : 29.03.2025
JUDGMENT
1. By this judgment, this court shall decide the present suit for Possession of the property bearing (old no. XI/3922) new no. 3038, Qazi Wara, Darya Ganj, Delhi measuring 162 sq. meters (hereinafter referred to as 'Suit Property'), Perpetual and Mandatory Injunction filed by the plaintiff against the defendants.
Facts pleaded in plaint (In Brief)
2. It is averred by the plaintiff that Sh. Abdul Hamid Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 2 of 35 SANDEEP Digitally by SANDEEP signed KUMAR KUMAR SHARMA SHARMA Date: 2025.04.01 16:52:22 +0530 S/o Dr. Inayat Khan was initially the owner of the suit property and the previous owner transferred/sold the said property to Sh. Zulfekar Ali (now deceased) S/o Late Sh. Abdul Gaffar, who sold the said property to Mohd. Sharif S/o late Mohd. Ahmed vide registered Sale Deed dated 02.08.1973. Thereafter, Mohd. Sharif sold the same to Smt. Santosh Nayyar W/o Sh. O.P Nayyar vide registered Sale Deed dated 23.01.1978. Subsequently, Smt. Santosh Nayayr sold the suit property to Smt. Zarina Khatoon and Mohd. Daud vide Registered Sale Deed dated 07.04.1988.
3. It has further been averred by the plaintiff that the said Mohd. Daud gifted his undivided share in the suit property by oral hiba and gave possession to Smt Zarina Khatoon on 17.11.1994 in the presence of witnesses and Smt Zarina Khatoon became absolute owner of the suit property. Smt. Zarina Khatoon died on 17.06.1995 and thereafter, plaintiff no. 1 being husband and plaintiffs no. 2 and 3 being the sons and the plaintiff no. 4, the grand daughter and defendants no. 5,7 and 8 being daughters and the defendant no. 6 son-in-law became the co-owners of the suit property being the legal heirs of Smt. Zarina Khatoon.
4. It is further averred by the plaintiff that the suit property was occupied by old tenants and their LRs namely Sh. Jagan Nath, Sh. Mahender Pal, Sh. Kishan Lal, Sh. Shyam Lal, Sh. Lal Chand, Sh. Ram Prakash and Sh. Ram Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 3 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.04.01 16:52:28 +0530 Kumar on meager rents. The tenants were neither carrying out the repairs nor allowing the plaintiffs to carry out the repairs. The tenants kept their respective portions locked and shifted to other places without disclosing their present addresses.
5. It is asserted by the plaintiff that the defendants no. 1 to 3 claimed that they have purchased the suit property from one Mohd. Saleem S/o Sh. Abdul Rashid and the plaintiffs and defendants no. 5 to 8 have not executed any documents of transfer for creating any rights in favour of either Mohd. Saleem or in favour of defendants no. 1 to 3 at any point of time till date. Hence, they don't have any right in the suit property and therefore, the present suit for possession, mandatory and perpetual injunction was filed against the defendants.
Facts pleaded in written statement of defendants no. 1 to 3 (In Brief)
6. The defendants have denied the averments of the plaint and contended that the present suit is not maintainable as the defendants are lawful owners in possession of the suit property, being purchased from the erstwhile owner. After the purchase of property the defendants got the building plan sanctioned from the MCD and they raised construction therein in accordance with the building plan sanctioned. It has further been contended that Smt. Santosh Nayyar Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 4 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA 16:52:36 Date: 2025.04.01 +0530 appointed Sh. Abdul Wahid as her lawful general attorney vide General Power of Attorney dated 02.01.1989. Further, Sh. Abdul Wahid appointed Sh. Rais Ahmed as General Attorney with all rights including rights of sale/transfer vide General Power of Attorney dated 13.07.1989. Sh. Rais Ahmed transferred the suit property to Mohd. Salim vide registered sale deed dated 28.06.2005 and later on Mohd. Salim transferred the suit property to defendants by means of three different sale deeds dated 08.01.2010.
7. The defendants also been contended that Mohd. Daud had no right to create Hiba in favour of Smt. Zarina Khatoon or to hand over the possession thereof to Smt. Zarina Khatoon. The oral Hiba is not permissible in law at all. The plaintiff had not served a notice of attornment upon the tenants occupying the property. It is prayed that the suit of the plaintiff may be dismissed with exemplary cost.
Facts pleaded in written statement of defendant no. 4 (In Brief)
8. The suit of the plaintiff is not maintainable for want of legal notice under Section 477/478 of DMC Act. The action has been initiated under Section 343/344(1) of DMC Act against the unauthorised construction in the suit property in deviation against the sanctioned building plan and a show cause notice has already been issued in the name of Sh. Nayabuddin and others.
Judgment dated 29.03.2025
CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 5 of 35
SANDEEP Digitally
by SANDEEP
signed
KUMAR KUMAR SHARMA
Date: 2025.04.01
SHARMA 16:52:44 +0530
Facts pleaded in replication to the written statement of defendants no. 1 to 3
9. In Replication, plaintiff reiterated the facts pleaded in the plaint and denied the averments made in the written statement.
Issues
10. The Ld. Predecessor of this Court Vide order dated 29.10.2014, framed the following issues,
1. Whether the Sale Deed dated 06.04.1988 registered on 07.04.1988 was executed bySmt. Santosh Nayyar in favour of Smt. Zarina Khatoon, predecessor of the Plaintiffs? OPP
2. Whether the Plaintiffs are co-owners of property no. 3038, Qaziwra, Darya Ganj, New Delhi-2? OPP
3. Whether defendants no. 1 to 3 are co- owners of suit property? OPD
4. Whether the General Power of Attorney dated 02.01.1989 alleged to have been executed by Smt. Santosh Nayyar in favour of Shri Abdul Wahid, son of Mohd.
Saddique is valid and legal? OPD
5. Whether Smt. Santosh Nayyar could have executed any G.P.A. on 02.01.1989 or on any other date after 07.04.1988 with regard to suit property? OPD Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 6 of 35 Digitally signed by SANDEEP SANDEEP KUMAR KUMAR SHARMA SHARMA Date:
2025.04.01 16:52:51 +0530
6. Whether the GPA alleged to have been executed by Shri Abdul Wahid, son of Mohd. Saddique in favour of Shri Rais Ahmed, son of Shri Rahim Baksh on 13.07.1989 is legal or valid? OPD
7. Whether the alleged Sale Deed dated 28.06.2005 stated to have been executed by Shri Rais Ahmed in favour of Shri Mohd. Salim is legal and valid and enforceable in law? OPD
8. Whether the Sale Deed dated 08.01.2010 stated to have been executed by Mohd. Salim in favour of Defendants no. 1 to 3 is legal and valid and has any legal existence? OPD
9. Whether defendants no. 1 to 3 are liable to vacate and handover the possession of suit property to the Plaintiffs? OPP
10. Whether the suit has not been correctly valued for the purpose of court fee? OPD
11. Relief.
Plaintiff's Evidence
11. Plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/A in which he has relied upon the following documents:
S.No Exhibit/ Mark No. Description of Documents
1. Ex. PW1/1 Certified copy of Sale Deed dated 07.04.1988
2. Ex. PW1/2 Copy of death certificate of Smt. Zarina Khatoon
3. Ex. PW1/3 Site Plan Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 7 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.04.01 16:52:59 +0530
4. Ex. PW1/4 Complaint to the concerned officer of MCD,
5. Ex. PW1/5 Complaint to SHO of PS Darya Ganj
6. Ex. PW1/6 Complaint to the Lt. Governor Delhi
12. Plaintiff further examined Sh. Sevajit, Record Attendant, Department of Delhi Archives as PW2 to prove the sale deed dated 06.04.1988. PW2 deposed on the basis of the official records that the deed dated 06.04.1988 executed by Smt. Santosh Nayyar in favour of Mst. Zarina Khatoon and Mohd. Daood is Ex. PW2/1. Thereafter, vide order dated 26.02.2018, PE was closed.
Defendant's Evidence
13. The Defendants examined defendant no. 2 Sh. Nayabuddin as DW1. He tendered his evidence by way of affidavit Ex.DW1/A and relied upon the following documents:
S.No Exhibit/ Mark No. Description of Documents
1. Ex. DW1/1 Original GPA dated 13.07.1989 executed by Mr. Abdul Waheed in favour of Mohd. Rais Ahmed
2. Ex.DW1/2 Original Sale deed dated 28.06.2005 executed by Rais Ahmed in favour of Mohd. Saleem
3. Ex. DW1/3 Original Sale deed dated 08.01.2010 executed by Mohd. Saleem in favour of Salauddin.
Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 8 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA Date:
SHARMA 2025.04.01 16:53:07 +0530
4. Ex. DW1/4 Original Sale deed dated 08.01.2010 executed by Mohd. Saleem in favour of Nayabuddin.
5. Ex. DW1/5 Original Sale deed dated 08.01.2010 executed by Mohd. Saleem in favour of Jamaluddin
6. Ex. DW1/6 Original House tax receiptg no.
CZ-761042 for Rs, 46,194 issued by MCD
7. Ex. DW1/7 Original letter dated 25.06.2011 written by defendant nos 1 to 3 to MCD
8. Ex. DW1/8 Original letter dated 24.08.2011 sent by MCD to defendant nos. 1 to 3
9. Ex. DW1/9 original letter dated 07.07.2011 sent by MCD to defendant nos. 1 to 3.
10 Ex. DW1/10 Original letter dated 23.01.2012 sent by MCD to defendant nos. 1 to 3.
11. Ex. DW1/11 Original letter dated 14.02.2012
12. Ex. DW1/12 Site plan/Sanction plan of the suit property.
14. Defendant no. 3 Sh. Jamaluddin was examined as DW2 who tendered his evidence affidavit as Ex. DW2/A and relied upon the documents already exhibited as Ex. DW1/1 to Ex. DW1/12. Defendant no. 1 was examined as DW3 by way of evidence affidavit Ex. DW3/A and relied upon the documents already exhibited as Ex. DW1/1 to Ex. DW1/12. Thereafter, vide order dated 27.04.2018, evidence of defendants was closed.
Arguments of the Ld. Counsel for the parties
15. This court has heard the arguments of the Ld. Counsel for both parties at length and perused the record Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 9 of 35 Digitally signed by SANDEEP SANDEEP KUMAR KUMAR SHARMA SHARMA Date:
2025.04.01 16:53:17 +0530 carefully. The Ld. Counsel for the plaintiff has argued in sync with the contents of the plaint and submitted that the suit of the plaintiff is liable to be decreed as the execution of the sale deed dated 06.04.1988 has duly been proved and therefore, Smt. Santosh Nayyar had no occasion to execute any documents to the contrary and hence, the claim of the defendants is not tenable in law. Per contra, Ld. Counsel for the defendants sought the dismissal of the suit on the ground that oral hiba is not permissible in the eyes of law hence, therefore, the plaintiffs cannot claim the ownership on the basis of the same as it was not valid. Further, defendants no. 1 to 3 became the owners of the suit property by virtue of the registered sale deeds, and hence, there is no merit in the claim of the plaintiffs.
Issue-wise findings
1. Whether the Sale Deed dated 06.04.1988 registered on 07.04.1988 was executed by Smt. Santosh Nayyar in favour of Smt. Zarina Khatoon, predecessor of the Plaintiffs? OPP
16. The onus to prove this issue is upon the plaintiffs. It is the admitted case of the parties that Smt. Santosh Nayyar was the owner of the property at the relevant times. Therefore, there is no doubt or any question on her capacity to further alienate the suit property. The only question that needs to be determined is whether the sale deed was Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 10 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.04.01 16:53:25 +0530 executed by her in favour of the predecessor of the plaintiffs.
17. To prove the issue, the plaintiff has examined himself as PW1 and exhibited the sale deed dated 06.04.1988 Ex PW1/1. PW1 deposed that the sale deed Ex PW1/1 was executed by Smt. Santosh Nayyar in favour of his wife and Mohd. Daud in equal shares on 06.04.1988. Plaintiff further examined PW2, who deposed that the sale deed Ex PW1/1 has duly been registered in the records, and to prove the same, the certified copy of the sale deed was Ex PW2/1. In the present case when the ownership of Smt. Santosh Nayyar not in dispute and sale deed Ex PW1/1 has duly been proved by the plaintiff from examining PW2 who deposed that according to the official records the sale deed dated 06.04.1988 executed by Smt. Santosh Nayyar in favour of Mst. Zarina Khatoon and Mohd. Daood which was Ex. PW2/1.
18. Moreover, the defendants have failed to rebut the claim of the execution of the sale deed by leading any cogent evidence, or during the cross-examination, nothing could be extracted by the Ld. Counsel for the defendants that may prove fatal for the claim of the plaintiff. Furthermore, defendants have also failed to show any circumstance that may suggest that Smt. Santosh Nayyar could not execute the sale deed Ex PW1/1 dated 06.04.1988.
Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 11 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA Date:
SHARMA 2025.04.01 16:53:32 +0530 Therefore, plaintiffs by the testimony of the PW1 and PW2 prove the execution and registration of the sale deed Ex PW1/1; thus, nothing remains to be proved, and hence, issue no. 1 goes in favour of the plaintiffs and against the defendants.Issue No. 4
4. Whether the General Power of Attorney dated 02.01.1989 alleged to have been executed by Smt. Santosh Nayyar in favour of Shri Abdul Wahid, son of Mohd.
Saddique is valid and legal? OPD
19. The onus to prove this issue is upon the defendants. The issue is ex-facie liable to be decided in favour of the plaintiffs for the reasons that the GPA dated 02.01.1989 has neither been placed on record nor proved by any other cogent evidence. Defendants have heavily relied upon the GPA dated 02.01.1989 but the same has not been produced before the Court during the evidence or defendants have never taken any steps to prove it by other evidences. Moreover, during the cross-examination, DW1 and DW2 deposed that neither they knew nor they ever met Sh. Abdul Wahid, which lucidly reveals that the defendants have no first hand knowledge of execution of GPA.
20. Further, defendants have failed to mention the reason for not filing the said GPA in court nor it was mentioned that in whose possession the same is available.
Judgment dated 29.03.2025
CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 12 of 35
Digitally signed
SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA Date:
2025.04.01
16:53:39 +0530
Defendants also failed to name the witnesses to the said GPA and also did not examine anyone to prove the execution of the GPA dated 02.01.1989. An old adage provides that "What can be asserted without evidence can also be dismissed without evidence" hence, defendants have merely asserted the execution of the GPA dated 02.01.1989 but failed to prove it, then the same may not be accepted. It is the mandatory duty of the party to prove the facts on which it based its case. Even let alone the proving of the same, defendants have failed to file or produce it before the court during the entire trial.
21. It is also notheworthy to mention that when plaintiffs have successfully proved the execution of Ex PW1/1, then any subsequent document executed by Smt. Nayyar in favour of anyone doesn't render any right in the suit property. Hence, it may safely be concluded that the defendants have failed to prove the claim regarding the execution of the GPA dated 02.01.1989 by Smt. Santosh Nayyar in favour of Sh. Abdul Wahid. Ergo, this issue is decided in favour of the plaintiffs and against the defendants.
Issue No. 55. Whether Smt. Santosh Nayyar could have executed any G.P.A. on 02.01.1989 or on any other date after 07.04.1988 with regard to suit property? OPD Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 13 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.04.01 16:53:53 +0530
22. The onus to prove the issue is upon the defendants. The present issue ex-facie liable to decided in favour of the plaintiffs and against the defendants for the reason that once while deciding issue no. 1 this Court has already held that the sale deed dated 07.04.1988, Ex PW1/1 is a valid document and its due execution in favour of the Smt. Zarina Khatoon and Mohd. Daud has already been proved by the plaintiffs than any subsequent document which deals with the same property doesn't hold any worth in law and hence non-est. When Smt. Santosh Nayyar sold the property to Smt. Zarina Khatton and Mohd. Daud by way of a registered sale deed, and the same has duly been proved in the court, therefore, after the execution of the sale deed, Smt. Santosh Nayyar did not have any authority to further transfer any interest/right/title or authority in the suit property to someone else.
23. It is a well-established fact that 'no one may pass a better title than he himself has'; therefore, Smt. Santosh Nayyar did not have any right or authority to execute any GPA in favour of anyone regarding the suit property, which was sold by a registered sale deed Ex PW1/1. By the execution of the Ex PW1/1 when Smt. Santosh Nayyar has already passed the title of the property in Mst. Zarina Khatoon and Mohd. Daud, then she has no authority remains in herself to execute any further documents qua the title of the suit property in favour of anyone else. Therefore, Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 14 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.04.01 16:54:00 +0530 this court is also deciding this issue in favour of the plaintiffs and against the defendants.
Issue No.6
6. Whether the GPA alleged to have been executed by Shri Abdul Wahid, son of Mohd. Saddique in favour of Shri Rais Ahmed, son of Shri Rahim Baksh on 13.07.1989 is legal or valid? OPD
24. The onus to prove this issue is upon the defendants. To prove this issue, DW1 and DW2 relied upon the GPA dated 13.07.1989, which is Ex DW1/1. It is the stand of the defendants that Sh. Abdul Wahid, who had a GPA dated 02.01.1989 in his favour further executed a GPA in favour of Sh. Rais Ahmed. The claim of the defendants may not be accepted for the reason that since it has already been held by this Court while deciding issue no. 1 that the sale deed dated 07.04.1988 Ex PW1/1 was duly executed and proved by the plaintiffs, therefore, all the alleged subsequent documents executed by Smt. Santosh Nayyar do not hold any sanctity in law and therefore, they may not be relied upon.
25. Further, the GPA dated 13.07.1989 Ex DW1/1 was executed on the basis of the GPA dated 02.01.1989, which was executed after the execution of the sale deed dated 07.04.1988 Ex PW1/1. This Court has already held in issue no. 5 that the GPA dated 02.01.1989 is non-est and hence, the subsequent GPA does not hold any substance. Even Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 15 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA 16:54:07 Date: 2025.04.01 +0530 otherwise it is a well established principal of law that "delegatus non potest delegare" (a delegate cannot further delegate) means that a person or entity to whom a power or authority has been delegated cannot, in turn, delegate that power to someone else unless the original delegation explicitly authorized it. The defendants have failed to prove that vide GPA dated 02.01.1989 the power to further delegate was expressly given by Smt. Santosh Nayyar to the delegatee i.e. Sh. Abdul Wahid.
26. After the execution of the sale deed Ex PW1/1, Smt. Santosh Nayyar did not have any right to execute another document in relation to the same property, or in other words, she did not have the competence to execute any other document qua the suit property. Ergo, this court is deciding that neither Smt. Santosh Nayyar could have executed the GPA after the execution of the sale deed, nor the Sh, Abdul Wahid had the authority to execute an another GPA in favour of Sh. Rais Ahmed, and therefore, GPA executed by Sh. Rais Ahmed in favour of Mohd. Siddiqui EX. DW1/1 doesn't have any legal sanctity. Accordingly, the issue is decided in the favour of the plaintiffs and against the defendants.
Issue No. 7 and 87. Whether the alleged Sale Deed dated 28.06.2005 stated to have been executed by Shri Rais Ahmed in favour of Shri Mohd.
Judgment dated 29.03.2025
CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 16 of 35
Digitally signed
SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA Date: 2025.04.01
16:54:14 +0530
Salim is legal and valid and enforceable in law? OPD
8. Whether the Sale Deed dated 08.01.2010 stated to have been executed by Mohd. Salim in favour of Defendants no. 1 to 3 is legal and valid and has any legal existence? OPD
27. The onus to prove these issues is upon the defendants. Both these issues are interconnected and may be adjudicated on the basis of the common findings; therefore, it would be apt to decide both the issues together. The first aspect that needs to be examined is whether a GPA holder may further delegate and execute another GPA in favour of someone else. Defendants in their pleadings have specifically claimed that on the basis of the GPA dated 02.01.1989, which was executed by Smt. Santosh Nayyar in favour of Sh. Abdul Wahid, a further GPA was executed by Sh. Abdul Wahid dated 13.07.1989 Ex DW1/1 in favour of Sh. Rais Ahmad. Thereafter, on the basis of the Ex DW1/1, Sh. Rais Ahmad sold the property to the defendants no. 1 to 3 by way of registered sale deeds Ex. DW1/2 to Ex. DW1/5 respectively.
28. It is a well-established law that a GPA holder does not have any authority to further delegate his powers to another person to act on behalf of the principal. Though, this rule has an exception which provides that sub-delegation of the powers may be done if the same is specifically provided in the GPA. At this stage it is relevant to mention the Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 17 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.04.01 16:54:20 +0530 judgment of the Hon'ble Supreme Court, titled as 'A.C. Narayanan vs State of Maharashtra and Another (MANU/SC/0934/2013),' and in 'Manisha Mahendra Gala vs Shalini Bhagwan Avtarmani & Ors. Neutral Citation:
2024 INSC 293, MANU/SC/0301/2024' (para 28) where it has been held that unless there is a specific clause permitting delegation, a general power of attorney holder cannot delegate its functions to another.
"28. xxx. The functions of the General Power of Attorney holder cannot be delegated to any other person without there being a specific Clause permitting such delegation in the Power of Attorney; meaning thereby ordinarily there cannot be any sub- delegation."
(Emphasis Supplied)
29. The law mandates that the GPA holder cannot further subdelegate unless it has specifically been provided in the GPA. The Ex DW1/1 was executed on the basis of the earlier executed GPA dated 02.01.1989, but the same has not been filed or produced in the court during the entire trial; therefore, this Court, while adjudicating issue no. 4, already decided that the defendants could not prove the Ex DW1/1, and hence, documents executed on the basis of Ex DW1/1, which is non-est in the eyes of the law, cannot validly render/transfer any right in the property to another person.
30. The sale deeds Ex DW1/2, Ex DW1/3, Ex DW1/4, and Ex DW1/5 are not tenable and legally enforceable in the Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 18 of 35 Digitally signed by SANDEEP SANDEEP KUMAR KUMAR SHARMA SHARMA Date:
2025.04.01 16:54:26 +0530 eyes of the law for the reason that at the time of the execution of the sale deeds dated 28.06.2005 and 08.01.2010, the sale deed Ex PW1/1 was in existence, and hence, Ex PW1/1 must be accepted as valid and legally enforceable as it was executed prior to Ex DW1/2 to Ex DW1/5. At this stage it is appropriate to mention the Section 47 of the Indian Registration Act, which provides that, "A registered document shall operate from the time from which it would have commenced to operate it on registration thereof had been required or made, and not from the time of its registration."
31. The mandate of Section 47 is clear that once a sale deed is registered, it would operate from the time from which it would have commenced to operate if no registration thereof is required or made, and not from the time of its registration. Section 47 does not say when the sale would be complete. It only permits a document when registered to operate from a certain date, which may be earlier than the date when it was registered. The object of Section 47 is to decide which of the two or more registered instruments in respect of the same property is to have effect.
32. Therefore, it is safe to hold that if two registered documents are executed by the same person in respect of the property to two different persons at different times, the one that was executed first has priority over the other, although Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 19 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.04.01 16:54:34 +0530 the former was registered subsequently to the latter. Therefore, Ex PW1/1 would operate from the day of its execution, i.e., and hence, Ex PW1/1 shall prevail upon the subsequent deeds Ex DW1/2 to Ex DW1/5.
33. Moreover, the sale deed Ex DW1/2 was not executed by Sh. Rais Ahmed as an attorney of Smt. Santosh Nayyar but in his own individual capacity. Defendants also failed to explain how Sh. Rais Ahmed gleaned the capacity to sell the property on his own. One more interesting fact that has neither been pleaded nor come on record is as to when Smt. Santosh Nayyar died because, if she wasn't alive on the day of the execution of Ex DW1/2 and then the GPA Ex DW1/1 ceased to exist, then nothing could be transferred on the basis of the said GPA Ex DW1/1.
34. Keeping in view the above discussion and relevant provisions of the Indian Registration Act, and in particular Section 47, this court has reached a conclusion that since Smt. Santosh Nayyar had executed a registered sale deed Ex PW1/1 on 07.04.1988, all the other documents, be they registered or unregistered, related to the same property do not hold any substance and are non-existent in law. Ergo, all three sale deeds Ex DW1/2 to Ex DW1/5 are not legally valid and unenforceable. Accordingly, the issue is decided in the favour of the plaintiffs and against the defendants.
Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 20 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.04.01 16:54:41 +0530 Issue No. 3 & 9
"3. Whether defendants no. 1 to 3 are co- owners of suit property? OPD
9. Whether defendants no. 1 to 3 are liable to vacate and handover the possession of suit property to the Plaintiffs? OPP"
35. The onus to prove these issues is upon the defendants. Both these issues are interconnected and may be adjudicated on the basis of the common findings; therefore, it would be apt to decide both the issues together. The defendants have raised an objection that the suit of the plaintiffs is not maintainable because the plaintiffs failed to seek the relief of declaration/cancellation of the sale deeds Ex DW1/2 to Ex DW1/5.
36. The contention of the defendants regarding the non- maintainability of the suit on the ground of the plaintiffs having not claimed the relief of any declaration or cancellation against the Ex DW1/2 to Ex DW1/5 is concerned, it is worthy to mention that the relevant provisions of the Registration Act Section 47 to Section 50, which provide that in the event of two documents dealing with the same subject matter, the one registered earlier would prevail.
37. Further, the arguments of the defendants do not hold any merit, as it has already been held by this court while Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 21 of 35 Digitally signed by SANDEEP SANDEEP KUMAR KUMAR SHARMA SHARMA Date:
2025.04.01 16:54:47 +0530 deciding other issues in the above discussion that Ex PW1/1 is a valid document and therefore Ex DW1/2 to DW1/5 are the subsequent documents, and that too executed by a person whose authority could not be proved before this court during the trial by leading cogent evidence, does not have any legal sanctity.
38. The sale deeds Ex DW1/2 to Ex DW1/5 relied on by the defendants are subsequent to Ex PW1/1 and could not have conveyed valid title in the defendant's favour.
Therefore, a document that in itself has no existence is not necessary for those documents; it is not necessary for the plaintiffs to seek a relief of declaration/cancelation against Ex DW1/3 to Ex DW1/5.
39. Furthermore, when the plaintiffs proved Ex PW1/1 and defendants failed to prove the very initial document, i.e., GPA 02.01.1989, hence all the subsequent documents based upon a document that is in itself an invalid document are non-est and don't have any legal sanctity. It is well- established that when two documents deal with the same subject matter, the one registered earlier would prevail.
40. Accordingly, the plaintiffs do not need to challenge the sale deeds Ex DW1/3 to Ex DW1/5 relied on by the defendants; they could not have conveyed valid title in the defendants favour as they were executed when Ex PW1/1 was in force, and also the defendants have failed to prove Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 22 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.04.01 16:54:54 +0530 the authority in favour of the person who has executed the sale deeds Ex DW1/3 to Ex DW1/5.
41. In view of the fact that this Court has already reached a conclusion that the sale deeds of the defendants Ex DW1/3 to Ex DW1/5 are invalid, then it is lucid that the defendants cannot be termed as owners of the suit property, and when the sale deeds Ex DW1/3 to Ex DW1/5 are invalid, then any benefits or rights that have been stated to be accrued or obtained through these sale deeds are liable to be returned to the persons who have a better title than the defendants.
42. However, at this stage, this court would also like to highlight one more aspect arising from the facts proved on record. As this court has already held that the suit property stood duly transferred in the name of Ms. Zarina Khatton and Mohd. Daud by Ms. Santosh Nayyar, by virtue of Ex PW1/1, i.e. sale deed registered on 07.04.1988 and which has been duly proved by the plaintiff, the plaintiffs being the legal heirs of Late Ms. Zarina Khatton are entitled to share in the undivided share of the Ms. Zarina Khatton in the suit property after her death and as such are co-owners of the suit property along with legal heirs of the Late Sh. Mohd. Daud.
43. Even if for a moment, it is presumed that the plaintiffs have failed to prove the oral Hiba, even than being Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 23 of 35 Digitally signed by SANDEEP SANDEEP KUMAR KUMAR SHARMA SHARMA Date:
2025.04.01 16:55:01 +0530 the co-owners, plaintiffs are entitled to seek possession of the suit property, on behalf of the other co-owners also. It is settled law that any of the co-owners of the property may maintain a suit for possession on behalf of the other co- owners unless the same is objected to by the other co- owners. Reliance may be placed upon the judgment of the Hon'ble High Court of Delhi, titled as Mahavir Prashad v. Sukhdev Mongia, 1989 (2) RCR. 418 (para-15) "15. In the cases of Cutrimbhoy & Co. Ltd. v. LA.
Creet, Air 1930 Calcutta 113; Ram Niranjan Das v. Loknath Mandal and Ajmer Singh v. Shamsher Singh it has been held that a suit for possession by a co-owner against a trespasser without impleading the other co-owner is maintainable."
(Emphasis Supplied)
44. In the present case, admittedly, there has not been any objection by rest of the co-owners nor the defendant no. 1 to 3 could bring anything on record to prove otherwise. As such in the present case dehors the Hiba, the plaintiffs being the co-owners of the suit property are well within their rights to seek possession of the suit property inasmuch as the right to have the possession of the suit property enure to their benefit being the co-owners.
45. The co-ownership of the plaintiffs in the suit property has already been proved in issue no. 1. It has also been held by this court that plaintiffs have proved that Mst. Zarina Khatoon had acquired a share in the property, and hence, being her legal heirs, they are co-owners thereof. The Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 24 of 35 Digitally signed by SANDEEP SANDEEP KUMAR KUMAR SHARMA SHARMA Date:
2025.04.01 16:55:09 +0530 plaintiffs' co-ownership in the property thus stands proved. Applying the principles laid down in the case referred to above, it may safely be concluded that plaintiffs, as co- owners of the property, are entitled to file the suit for possession against the defendants, who are alleged to be trespassers thereof.
46. In other words, when it has already been held that the plaintiffs are the co-owners of the suit property and no title whatsoever is available with the defendants qua the suit property, therefore, it is not open to the defendants herein to say that they have got any semblance of right, title, and interest in the suit property. It follows that they are in unlawful possession of the suit property. Ergo, the defendants 1 to 3 are also liable to vacate and hand over the peaceful possession of the suit property to the plaintiffs. Accordingly, issues no. 3 and 9 are decided in the favour of the plaintiffs and against the defendants.
Issue No. 2"2. Whether the Plaintiffs are co-owners of property no. 3038, Qaziwra, Darya Ganj, New Delhi-2? OPP"
47. The onus to prove this issue is upon the plaintiffs. The plaintiffs have a stand that Mohd. Daud who had the equal share in the property by the virtue of Ex PW1/1 had orally gifted his share to the predecessor in interest of the Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 25 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.04.01 16:55:17 +0530 plaintiffs i.e. Smt. Zarina Khatoon and hence, they being the legal heirs of Late Smt. Zarina Khatoon, are the absolute owners of the entire suit property. Whereas, the defendants have contended that claim of plaintiffs of oral hiba could not be accepted as the same is in clear violations of the mandate of Section 123 of the Transfer of Property Act (hereinafter to be referred as 'TPA') as it provides that instrument of gift must be in writing, signed by two witnesses and be duly registered. Further, it has also been argued by the defendants that the ingredients of oral hiba could not be proved in entirety.
48. The next question which requires adjudication is that whether the property was orally gifted (hiba) to Ms. Zarina Khatoon by Mohd. Daud. The hiba or gift may be explained as 'the unconditional transfer of a property by a capable person (donor) to another person (done) without consideration and the same is accepted by or on behalf of the donee.' The concept of oral gift has lucidly been explained by the Hon'ble Supreme Court in the judgment titled as 'Jamila Begum vs Shami Mohd, Neutral Citation:
2018 INSC 1206, MANU/SC/1488/2018' (para-21)
21. Under the Mohammedan law, no doubt, making oral gift is permissible. The conditions for making valid oral gift under the Mohammedan law are: (i) there should be wish or intention on the part of the donor to gift; (ii) acceptance by the donee; and (iii) taking possession of the subject matter of the gift by the donee. The essentials of a valid and complete gift under Mohammedan law have Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 26 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date:
2025.04.01 16:55:24 +0530 been succinctly laid down in Abdul Rahim and Ors. v. Sk. Abdul Zabar and Ors. MANU/SC/0379/2009 : (2009) 6 SCC 160 as under:
13. The conditions to make a valid and complete gift under the Mohammadan law are as under:
(a) The donor should be sane and major and must be the owner of the property which he is gifting.
(b) The thing gifted should be in existence at the time of hiba.
(c) If the thing gifted is divisible, it should be separated and made distinct.
(d) The thing gifted should be such property to benefit from which is lawful under the Shariat.
(e) The thing gifted should not be accompanied by things not gifted i.e. should be free from things which have not been gifted.
(f) The thing gifted should come in the possession of the donee himself, or of his representative, guardian or executor.
49. To substantiate the fact of the legality of oral gift, reliance may be placed on the judgment of the Hon'ble Supreme Court, titled as '"'Hafeeza Bibi vs Sk. Farid, (2011) 5 SCC 654' (para-10), wherein it has been held that, "10. In Mahboob Sahab v. Syed Ismail [(1995) 3 SCC 693] this Court referred to Principles of Mahomedan Law by Mulla, 19th Edn. and in para 5 noticed the legal position, in relation to a gift by a Muslim incorporated therein, thus: (SCC pp. 696-
97) "5....It would, thus, be clear that though gift by a Mohammadan is not required to be in writing and consequently need not be registered under the Registration Act; for a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subject-matter of the gift by the donor to the donee. The donee should take Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 27 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.04.01 16:55:35 +0530 delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift."
(Emphasis Supplied)
50. The same position was reiterated by the Hon'ble Supreme Court in the case titled as Rasheeda Khatoon vs Ashiq Ali, (2014) 10 SCC 459, (para-17), wherein it has again reiterated that oral hiba is valid amongst muslims.
"17. ...a gift under the Muhammadan law can be an oral gift and need not be registered; that a written instrument does not, under all circumstances require registration; that to be a valid gift under the Muhammadan law three essential features, namely,
(i) declaration of the gift by the donor, (ii) acceptance of the gift by the donee expressly or impliedly, and (iii) delivery of possession either actually or constructively to the donee, are to be satisfied; that solely because the writing is contemporaneous of the making of the gift deed, it does not warrant registration under Section 17 of the Registration Act."
(Emphasis supplied)
51. In the light of the judgments as referred to above it may safely be concluded that there are three basic elements which are essential for a valid hiba i.e. i) The unequivocal declaration of the gift by the donor, ii) Acceptance of gift by the donee and iii) Possession either actual or constructive must be transferred. For the validity of oral gift all the three Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 28 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.04.01 16:55:42 +0530 conditions must be completed and if any one of the requirements fails then the gift shall be invalid.
52. Keeping in view the legal position in view the first contention of the defendants regarding the fact that oral gift cannot be given and since, it is in the violations of the Section 123 of TPA does not holds merits and liable to be rejected. It is correct that Section 123 of TPA provides that no transfer of property by way of gift can take place orally but it has to be in writing and must be registered but however, the same is not applicable on the gift of immovable property inasmuch as section 129 of the Transfer of Property Act, 1882 makes it explicit that the provision of Transfer of Property Acct, 1882 are not applicable to muslim law of gifts and as such a gift of immoveable property made by a muslim person need not be registered, which obviates the need for a gift to be reduced in writing. Hence, on the aspect of the non-registration this court is holding that the unwritten and unregistered gift executed by the donor in favour of donee is valid.
53. As it has already been discussed above that in order to constitute a valid hiba three conditions needs to be met. It has been pleaded and argued that the hiba was never executed and therefore, plaintiffs have no right over the entire suit property. To prove the factum of oral hiba plaintiff has examined himself as PW1 and replied during Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 29 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.04.01 16:55:50 +0530 the cross examination that Mohd. Daud made the oral hiba to Ms. Zarina Khatoon. PW1 admitted that the vacant possession of the property was not handed over to the plaintiffs at the time of purchase as there was various tenants in occupied the suit property.
54. The defendants have argued that since the possession was not handed over to the predecessor in interest of the plaintiff i.e. Ms. Zarina Khatoon by Mohd. Daud, therefore, the essentials of the hiba could not be said to be completed and the hiba is invalid. During the cross examination it has also been asked to the PW1 that whether Mohd. Daud had left any legal heirs behind him or was he married, the PW1 gave answers to both the questions in negative. PW1 also testified that the hiba was created on 17.11.1994, though plaintiff did not examine any witness to the same.
55. It is not in dispute that the suit property was in existence at the date of hiba i.e 17.11.1994. It has also been proved by the plaintiffs that the by the virtue of Ex PW1/1, which was executed in the favour of Ms. Zarina Khatton and Mohd. Daud by Ms. Santosh Nayyar, the suit property stood transferred in the name of Ms. Zarina Khatton and Mohd. Daud. It is also not in dispute that the physical possession of the suit property was not handed over to the predecessors in interest of the plaintiffs and Mohd. Daud by Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 30 of 35 Digitally signed by SANDEEP SANDEEP KUMAR KUMAR SHARMA SHARMA Date:
2025.04.01 16:55:58 +0530 the erstwhile owner. Moreover, it is categorically mentioned on page 3 of Ex PW1/1 that the property is in highly dilapidated condition and is in the possession of the tenants. The relevant portion of the same is reproduced here as under, "Whereas, the said entire double stored house is in highly dilapidated condition and need extensive repairs, plastering, flooring, re-roofing etc, which shall cost huge amount of money and also the said house is occupied by some tenants and illegal occupants."
(Emphasis Supplied)
56. The recitals of the Ex PW1/1 makes it clear that the physical possession was not handed over to the Ms. Zarina Khatoon and Mohd. Daud and the suit property was under
the occupation of the tenants. Since, the parties to the hiba did not have the possession of the property with them than the question of transferring the possession does not arise. Thus, the execution of the sale deed Ex PW1/1 has already been proved and the physical possession of the suit property as per the contents of the Ex PW1/1 could not be transferred than actual or physical delivery of the possession of the suit property by donor and acceptance of the same by donee was non-called for. It is also not necessary that delivery of possession and acceptance of possession should have been followed by divestment of physical possession by plaintiffs. The defendants were failed to extract anything from PW1 which may prove fatal to the claim of the oral hiba. Though, Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 31 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.04.01 16:56:05 +0530 the PW1 has categorically stated the date on which the oral hiba was made.
57. As already discussed above that the rule of the Section 123 of the Transfer of Property Act doesn't applies on the oral gift (hiba). The law is well established that instead of actual physical possession, even constructive possession of the subject-matter of the gift would do for the purpose of the validity of a hiba (gift) notwithstanding the fact of physical delivery of the same has not been given. It will, however, depend on the nature of the interest in the property which is sought to be transferred, whether in the facts and circumstances of the case, only constructive possession would be enough or actual physical possession would be required.
58. In the present case the though the plaintiffs has failed to examine any witness to the execution of the oral hiba but merely non-examination of the witnesses doesn't makes it invalid, if it fulfills the other conditions. Though, it may not be ignored that neither the names of the witness was never disclosed by the plaintiffs in the pleadings nor was called to corroborate the factum of hiba.
59. Further, PW1 during the examination specifically deposed that at the time of purchase of the suit property possession of the same was not handed over to them and the property was under the occupation of the tenants but Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 32 of 35 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.04.01 16:56:11 +0530 plaintiffs neither send any notice to the tenants of atornment or made any public notice regarding the hiba. The claim of the plaintiffs regarding hiba also appears to be unsustainable as plaintiffs even failed to explain that when Mohd. Daud died. PW1 further deposed that there was no relationship between Ms. Zarina Khatoon and Mohd. Daud and failed to explain as to how, why and under what circumstances he made oral hiba to Ms. Zarina Khatoon. Plaintiffs remained silent on the aspect that why the suit property did not get mutate in the name of Ms .Zarina Khatoon after the execution of the oral hiba.
60. With these observations this court is of the view that though the plaintiffs has failed to prove the one of the essential condition of oral hiba i.e. the delivery of possession from the donor to the donee, therefore, the factum of the oral hiba could not be proved but since plaintiffs have already proved the Ex PW1/1 by which the ownership of the suit property was vested in Ms. Zarina Khatoon and Mohd. Daud, therefore, undisputedly they are the co-owners of the suit property alongwith Mohd. Daud and thus, the present suit for the recovery of possession against the unauthorised occupants is maintainable. When plaintiffs have proved themselves as an owner of the suit property by the virtue of Ex. PW1/1 and therefore, the defendants have no right or title in the suit property as this Court has already held that the documents Ex. DW1/1 to Ex Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 33 of 35 Digitally signed by SANDEEP SANDEEP KUMAR KUMAR SHARMA SHARMA Date:
2025.04.01 16:56:19 +0530 DW1/5 having no legal sanctity then defendants are nothing but merely unauthorised occupantss of the suit property and therefore, they have no right to remain in possession of the suit property any further. Plaintiffs having being a better title than the defendants, then they are entitled for the possession of the suit property from the defendants. Therefore, this court is deciding this issue in favour of the Plaintiffs and against the defendants no.1 to 3.
Issue no. 10
10. Whether the suit has not been correctly valued for the purpose of court fee? OPD
61. The onus to prove this issue is upon the defendants as they have taken the objection of non-payment of adequate courts fees in their joint written statement. Defendants have failed to bring on record anything by which even prima- facie be proved that the suit property is undervalued and higher court fees should have been paid by the plaintiffs. Accordingly, this court is deciding this issue also in favour of the plaintiffs and against the defendants.
Relief
62. The plaintiffs have proved the execution of the sale deed Ex PW1/1 therefore, Ex DW1/1 to DW1/5 does not hold any validity in law and thus, liable to be annulled.
Judgment dated 29.03.2025
CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 34 of 35
Digitally signed
SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA Date: 2025.04.01
16:56:26 +0530
Therefore, no right may be claimed by the defendants on the basis of these documents. Ergo, plaintiffs are entitled for the possession of the suit property from the defendants no.1 to 3 and accordingly, suit of the plaintiffs is hereby decreed without costs.
63. Decree sheet be prepared accordingly.
64. File be consigned to record room after due compliances.
Digitally signedSANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.04.01 16:56:31 +0530 Announced in the open court (Sandeep Kumar Sharma) on March 29th , 2025 District Judge-02/Central/THC Judgment dated 29.03.2025 CS DJ No. 10556/2016 CNR No. DLCT01-000153-2012 Zaki Hasan VS Salauddin & Ors. Page No. 35 of 35