Delhi District Court
Vide This Order vs Pooja Rajput & Ors Page 1 Of 9 on 1 August, 2016
IN THE COURT OF SH. VINOD KUMAR MEENA,
CIVIL JUDGE 11 (CENTRAL), TIS HAZARI COURTS, DELHI
CS NO. 99909/16
DINESH KUMAR
VS
POOJA RAJPUT & ORS
ORDER ON THE MAINTAINABILITY UNDER ORDER 7 RULE 11
OF CPC
1 Vide this order, I shall decide as to whether the present suit
which is filed by the plaintiff is maintainable in the present form or
not.
2 Before proceeding ahead with deciding on the
maintainability of the present suit, the Court deem it fit to mention
here the relevant facts which have resulted into the present suit. It is
the case of the plaintiff that one property bearing no. A155(new) (A
23 old) land measuring 200 sq. yrds forming part of Khasra No. 5/10,
Village Kamal Pur, Mazra Burari, Delhi was owned by defendant
no.4. The defendant no. 4 appointed the defendant no.3 as General
Power of Attorney holder w.r.t the abovementioned plot. It is averred
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by the plaintiff in the plaint that the defendant no.3 being lawful
general power of attorney of defendant no.4, entered into a
collaboration agreement dated 19.02.2013 for the purpose of raising
construction over the said plot with defendant no.1 and it was agreed
between the defendant no.1 and defendant no.3 that after the
construction, the defendant no.1 will get the ownership right over the
1st floor and 2nd floor of the built up property. It is also averred by the
plaintiff in the plaint that defendant no.1 & 2 raised the construction
over the said plot with stilt parking, upper ground floor, first floor,
second floor and third floor and during the said construction, the
defendant no.1 sold one flat bearing no. F4 measuring 50 sq. yrds at
first floor to the plaintiff on 06.01.2014 for the consideration of Rs.
11,20,000/ and also delivered the possession of the same and the
plaintiff is in possession of the said flat. It is also averred by the
plaintiff in the plaint that the defendant no.1 also agreed to sell one
flat at second floor and the said flat was sold on 01.12.2014 by the
defendant no.3 on behalf of defendant no.1 & 2. It is also averred by
the plaintiff in the plaint that one more flat bearing no. F1 at first floor
was also sold by the defendant no.1 to the plaintiff on 18.12.2014 for
a consideration of Rs. 8,00,000/. It is also averred by the plaintiff in
the plaint that in the month of March, 2015, the defendant no.1 & 2
were in shortage of funds to complete the construction, accordingly,
the financial assistant was sought from the plaintiff and the plaintiff
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agreed to financially assist the defendant no. 1 & 2 with the
undertaking from the defendant no.1 & 2 that flat No. F2 & F3 at
first floor would be sold for the sum of Rs. 16 lakhs. It is also averred
by the plaintiff in the plaint that he financially assisted the defendant
no.1 by making the payment of Rs. 4,16,000/, Rs. 3 lakhs, Rs. 5
lakhs respectively, accordingly, make the payment of total amount of
Rs. 12,16,000/ and a sum of Rs. 3,84,000/ was pending on the part
of the plaintiff. It is also averred by the plaintiff in the plaint that the
defendant no.1 is trying to negotiate with some other person for
selling the flat no. F2 and F3 and accordingly, the present suit is filed
for the decree of permanent injunction to the effect that the
defendants be restrained from dispossessing the plaintiff and from
creating any third party interests in respect of Flat F1 to F4 at first
Floor and S1 at second floor in the property bearing no. A155(new)
(A23 old) land measuring 200 sq. yrds forming part of Khasra No.
5/10, Village Kamal Pur, Mazra Burari, Delhi.
3 It is observed by the Court that the impugned transaction
w.r.t the alleged sale of flats by the defendant no.1 to the plaintiff do
pertains to the year 2014 onwards.
4 It is further observed by the court that it is an admitted on
the part of the plaintiff that in terms of collaboration agreement dt.
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19.02.2013, the defendant no.1 got ownership rights of the first floor
and second floor of the property. It is further observed by the court
that three set of documents have been filed by the plaintiff. Two sets
of documents pertains to sale of flat no. F4 and F1 at first floor each
measuring 50 sq. yds. in the property bearing no. A155(new) (A23
old) land measuring 200 sq. yrds forming part of Khasra No. 5/10,
Village Kamal Pur, Mazra Burari, Delhi and the said flat i.e. Flat No.
F1 and F4 have been allegedly sold by the defendant no.1 to the
plaintiff. It is further observed by the court that one set of documents
pertains to sale of flat no. S1 measuring 50 sq. yds, at second floor
of the property bearing no. A155(new) (A23 old) land measuring
200 sq. yrds forming part of Khasra No. 5/10, Village Kamal Pur,
Mazra Burari, Delhi and the same was admittedly sold by the
defendant no.3 in favour of the plaintiff. The court is of the view that
if the first floor and second floor were in ownership of the defendant
no.1, then how the defendant no. 3 could have sold the same. It is
also observed by the court that the said documents for the sale of flat
S1, do mention as if the defendant no.3 is the owner of the said flat.
Contents of the documents for the sale of flat no. S1 are in
contradiction to the pleadings as averred by the plaintiff in the plaint.
It is also observed by the court that the plaintiff has averred in the
plaint that he made financial assistance in the substantial sum of Rs.
12,16,000/. However, there is not even a single document to
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substantiate the same.
5 Be that as it may, the court is confronted with one question
as to whether the unregistered GPA, deed of Will, agreement to sell,
receipt and possession letter do confer any title in the suit property.
To this, the court deem it fit to mention here that after the
pronouncement of judgment by the Hon'ble Supreme Court in Suraj
lamp & Industries Pvt. Ltd. Through Director vs State of Haryana
and Anr. 2009 (1) 7 SCC 363 and Suraj Lamp and Industries Pvt.
Ltd. (2) through Directors vs State of Haryana (2012) 1 SCC 656,
it is clear that the unregistered GPA, Deed of Will, Agreement to Sell,
Receipt and Possession letter do not confer any right, title or interest
in the immovable property.
6 The Hon'ble Supreme Court India in Suraj Lamp and
Industries Private Limited Through Director v. State of Haryana
& Anr.(2009) 7 SCC 363 held that transfer of an immovable property
is not legal and valid, if done through GPA, agreement to sell etc.
and such transactions cannot be treated as complete transfer or
conveyance. It is also pertinent to mention here that in the final
judgment which is reported in Suraj Lamp and Industries Private
Limited Through Director (2) v. State of Haryana & Anr.(2012) 1
SCC 656, the Hon'ble Supreme Court clarified the legal position that
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the judgment would operate only prospectively. The court deem it fit
to quote here the relevant para from the Suraj Lamp (supra):
"...17. It has been submitted that making declaration that
GPA sales and SA/GPA/WILL transfers are not legally
valid modes of transfer is likely to create hardship to a
large number of persons who have entered into such
transactions and they should be given sufficient time to
regularize the transactions by obtaining deeds of
conveyance. It is also submitted that this decision should
be made applicable prospectively to avoid hardship.
18. We have merely drawn attention to and reiterated the
wellsettled legal position that SA/GPA/WILL transactions
are not transfers or sales and that such transactions
cannot be treated as completed transfers or conveyances.
They can continue to be treated as existing agreement of
sale. Nothing prevents affected parties from getting
registered Deeds of Conveyance to complete their title.
The said SA/GPA/WILL transactions may also be used to
obtain specific performance or to defend possession
under section 53A of TP Act. If they are entered before
this day, they may be relied upon to apply for
regularization of allotments/leases by Development
Authorities. We make it clear that if the documents relating
to SA/GPA/WILL transactions has been accepted acted
upon by DDA or other developmental authorities or by the
Municipal or revenue authorities to effect mutation, they
need not be disturbed, merely on account of this
decision..."(underline added)
The judgment passed by Hon'ble Supreme court in Suraj
Lamp (supra) do have a prospective application as decided in Maya
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Dinesh Kumar vs. Pooja Rajput & ors Page 6 of 9
Devi v. Lalta Prasad, Civil Appeal No. 2458 of 2014 date of
decision 19.02.2014.
7 From the abovementioned, it is clear that after the
pronouncement of the judgment by the Hon'ble Supreme Court in
Suraj Lamp (supra), the prevalent documents i.e. General Power of
attorney, deed of will, agreement, will, receipt and possession letter
do not confer title or ownership in the property to which they pertains.
Now coming to the factual matrix of the present suit, all the
documents do pertains to the year 2014 onwards. All these
documents are unregistered documents, so from the judgment
passed by Hon'ble Supreme Court in Suraj Lamp(supra), it is clear
that the documents do not confer any ownership or title in the
property. At the most, these documents can be relied upon for filing
the specific performance of the contract. Very strangely, the present
suit has been filed for simplicitor injunction without seeking any
further relief regarding declaration of their titles or for the specific
performance of contract.
8 At this stage, the court also deem it fit to mention here that
the plaintiff has sought the relief of injunction to the effect that the
defendants be directed not to dispossess him from the suit property.
To this, the court deem it fit to mention here that Section 53A of the
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Transfer of Property Act do provide a ground of defence to the effect
that if there is an agreement to sell and the possession of the
immovable property has been transferred, then the person who has
got the possession of the property in furtherance to agreement to sell
has right to protect the same. However, the defence as enumerated
under Section 53A of Transfer of Property Act can only be used as
defence, in other words, the defence as enumerated under Section
53A of Transfer of Property Act, can be used as shield and not as a
sword. It is further pertinent to mention here that after amendment
Act of 2001 (Act 48 of 2001), the Section 17 1A has been added in
the registration Act. Section 17 1A of Registration Act provides that if
any agreement to sale is executed after the Amendment Act
2001(Act 48 of 2001) (date of notification of the amendment is
24.09.2001) and the same has not been registered, then the defence of Section 53A of Transfer of Property Act will not be applicable/available.
9 In the present suit, the plaintiff do have unregistered agreement to sale in his favour. The unregistered agreement to sale does not confer any right, title or interest in the immovable property. The said unregistered agreement to sale cannot be also used for the defence as enumerated Section 53A of Transfer of Property Act in terms of Section 17 1A of Registration Act. Once, it is clear that the CS no. 99909/16 Dinesh Kumar vs. Pooja Rajput & ors Page 8 of 9 plaintiff is not even entitled to protect his defence then how he can get the said protection through equitable relief of injunction.
10 Now from the abovementioned, it is clear that the documents as relied upon by the plaintiff neither create any ownership nor title in the property nor the same can be used to protect the possession. The plaintiff has filed the suit for simplicitor injunction rather than filing of suit for declaration of his title or for specific performance and accordingly, in view of facts and circumstances of the present suit, the present suit in the present form for simplicitor injunction is not maintainable in term of the judgment pronounced in Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors on 25 March, 2008 (Appeal (civil) 6191 of 2001).
11 In view of the abovementioned, the plaint of the plaintiff is hereby rejected under Order 7 Rule 11 of CPC.
Announced in the open Court on 01.08.2016 (Vinod Kumar Meena) (Total pages 1 to 9) CJ11 (Central)/01.08.2016 CS no. 99909/16 Dinesh Kumar vs. Pooja Rajput & ors Page 9 of 9