Delhi District Court
Sh. Dharamendra vs Smt. Kamini on 1 December, 2014
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
CS 391/14
Case I.D. Number : 02402C0199212013
IN THE MATTER OF :
Sh. Dharamendra
S/o Sh. Prakash
Aged about 30 years
R/o Chauhan Patti,
Sabhapur, Delhi94. ........... Plaintiff
VERSUS
Smt. Kamini
W/o Sh. Mahendra
aged about 50 years
Permanent Address:
Bawana J. J. Colony,
Delhi 110039.
Presently Residing At:
Khasra No. 164, Village Sabhapur,
Near Sona Public School,
Aditya Garden, Shahdara,
Delhi110094. ..........Defendant
Date of Institution of Appeal : 04.07.2013
Received in this Court : 21.03.2014
Date of arguments : 28.11.2014
CS No. 391/14 page 1 of 21
Dharmendra Vs. Kamini
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi.
Date of Judgment/Order : 01.12.2014
Decision : Suit Dismissed with Costs.
J U D G M E N T
1. The present suit is filed for possession U/S 6 of the Specific Relief Act
for possession of the property measuring 50 sq. yards situated in Khasra No.
164, Village Sabhapur, Illaqua Shahdara, Delhi94 ( hereinafter called the
suit property).
2. The brief and relevant facts for filing of this suit is that the plaintiff
purchase the suit property from Smt. Sunita on 11.01.2013 for sale
consideration of Rs. 8 lakh by way of GPA, Receipt, Power of Attorney,
Agreement to Sell and Will. The vacant possession of the suit property was
handed over to the plaintiff on 11.01.2013. When the plaintiff went to her
relatives in U. P. on 10.04.13 and returned back on 11.04.13, the locks of the
premises was found broken and found three persons in possession of the suit
property. Out of them the defendant, defendant replied that she purchased the
house from Rajbir Singh. When plaintiff asked the defendant to vacate the suit
property and called police at 100 number, no action was taken by the police.
No action was taken on the complaint of the plaintiff too by the police. The
defendant have no right, title or interest in the suit property and the plaintiff is
entitled for the possession of the same. Hence, this suit is filed by the plaintiff
against the defendant.
3. After issuance of the summons the written statement was filed by
CS No. 391/14 page 2 of 21
Dharmendra Vs. Kamini
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi.
defendant. By way of the WS the defendant denied the averments contending
that plaintiff has no right, title or interest in the suit property, this suit is false
and filed in collusion with the local property dealer to grab the suit property.
As contended, defendant has purchased the suit property and is rightful owner
of the same in possession since 2004. While denying the rest of material
contentions of the plaintiff in the plaint, the defendant prayed to dismiss this
suit with heavy cost.
4. Replication to the Written Statement of the defendant was filed by the
plaintiff whereby the plaintiff has reiterated and reaffirmed the averments in
the plaint and denied the contentions of the defendant in the written statement.
5. In view of the pleadings of the parties following issues were framed by
order dated 01.10.2013:
(i) Whether the plaintiff was illegally dispossessed from the suit property
by the defendant between 10.04.13 to 11.04.13 ? OPP
(ii) If issue No. I is decided in favour of the plaintiff, whether the plaintiff is
entitled to be put back into possession of the suit property ? OPP
(iii) Relief.
6. Plaintiff filed affidavit by way of evidence Ex. PW1/A and examined
himself as PW1 in support of contentions as mentioned in the plaint. The
plaintiff has further deposed regarding the documents relied by him i.e.
(1) General Power of Attorney dated 11.01.2013 executed by Smt. Sunita in
favour of the plaintiff as Ex. PW1/1.
(2) Agreement to Sell dated 11.01.2013 executed by Smt. Sunita in favour of
CS No. 391/14 page 3 of 21
Dharmendra Vs. Kamini
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi.
the plaintiff as Ex. PW1/2.
(3) Affidavit dated 11.01.2013 executed by Smt. Sunita as Ex. PW1/3.
(4) Payment receipt dated 11.01.2013 executed by Smt. Sunita as Ex. PW1/4.
(5) Possession letter dated 11.01.2013 executed by Smt. Sunita in favour of the
plaintiff as Ex. PW1/5.
(6) Will dated 11.01.2013 executed by Smt. Sunita in favour of the plaintiff as
Ex. PW1/6.
(7) General Power of Attorney dated 05.06.2009 executed by Vishnu Kumar in
favour of Sunita as Ex. PW1/7.
(8) Agreement to Gift dated 05.06.2009 executed by Vishnu Kumar in favour
of Sunita as Ex. PW1/8.
(9) Deed of Will dated 05.06.09 executed by Vishnu Kumar in favour of Sunita
as Ex. PW1/9.
(10) Possession letter dated 05.06.2009 executed by Vishnu Kuamr in favour of
Sunita as Ex. PW1/10.
(11) General Power of Attorney dated 18.05.2007 executed by Aditya
Chaudhary in favour of Vishnu Kumar as Ex. PW1/11.
(12) Agreement to sell dated 18.05.2007 executed by Aditya Chaudhary in
favour of Vishnu Kumar as Ex. PW1/12.
(13) Payment Receipt dated 18.05.07 executed by Aditya Chaudhary in favour
of Vishnu Kumar as Ex. PW1/13.
(14) Possession letter dated 18.05.07 executed by Aditya Chaudhary in favour
of Vishnu Kumar as Ex. PW1/14.
CS No. 391/14 page 4 of 21
Dharmendra Vs. Kamini
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi.
(15) Deed of Will dated 18.05.2007 executed by Aditya Chaudhary in favour of
Vishnu Kuamr as Ex. PW1/15.
(16) Complaint made by the plaintiff to the SHO, PS Sonia Vihar entered vide
DD No. 30B dated 07.05.2013 as Ex. PW1/16. The PE was thereafter closed.
7. Defendant also filed her evidence by way of affidavit Ex. DW1/A and
was examined as DW1 in support of her defence. The defendant further
summoned Rajesh Kumar, LDC from Tis Hazari and examined him as DW2.
As no other witness remained to be examined by the defendant the DE was
closed.
8. I have heard the Ld. Counsel for the parties and gone through the
relevant materials on record. I have also considered the relevant provisions of
law. My findings on the above said issues are as follows.
Issue No. I & II
(i) Whether the plaintiff was illegally dispossessed from the suit
property by the defendant between 10.04.13 to 11.04.13 ? OPP
(ii) If issue No. I is decided in favour of the plaintiff, whether the
plaintiff is entitled to be put back into possession of the suit property ?
OPP
9. The brief and relevant facts for filing of the suit is mentioned at the
outset. The onus to prove the issue No. I and II regarding entitlement for the
relief as prayed in the suit was upon the plaintiff. Both these issues are
examined and adjudicated together being inter related.
CS No. 391/14 page 5 of 21
Dharmendra Vs. Kamini
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi.
10. It is well settled that a suit has to be tried on the basis of the pleadings
of the contesting parties which is filed in the suit in the form of plaint and
written statement and the nucleus of the case of the plaintiff and the contesting
case of the defendant in the form of issues emerges out of that. Being a civil
suit, this suit is to be decided on the basis of preponderance of probabilities.
In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in
183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe
as under:
"A civil case is decided on balance of probabilities. The
balance of probabilities in the present case shows that
the Power of Attorney Ex. PW3/1 and the Will Ex. P1
were duly executed by the deceased Sh. Sohan Singh. The
Power of Attorney is after all a registered Power of
Attorney, and more importantly, the original title
documents of the subject property are in the possession
of the respondent No. 1 and which would not have been,
if there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants CS No. 391/14 page 6 of 21 Dharmendra Vs. Kamini Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi. but to the respondent No. 1 her fatherinlaw Sh. Sewa Singh, if the impugned judgment is set aside."
In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
In the cases of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, it has been held that a civil case is to be decided on balance of probabilities
11. Section 101 of the Evidence Act, 1872 defines " burden of proof" which is reproduced as below: CS No. 391/14 page 7 of 21 Dharmendra Vs. Kamini Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi.
" 101. Burden of proof whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been liable to discharge his burden. Until he arrives at such conclusion he cannot proceed on the basis of weakness of other party.
12. The plaintiff has filed the suit for possession in view of Section 6 of Specific Relief Act, 1963 as he was dispossessed from the suit property. The relevant section is reproduced herein for reference.
6. Suit by person dispossessed of immovable property. (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
CS No. 391/14 page 8 of 21 Dharmendra Vs. Kamini
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi.
(2) No suit under this section shall be brought
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
13 As held in 1992 Supp(2) SCC 29(36), the purpose behind section 6 of the Act to restrain a person from using force and to dispossess a person without his consent otherwise then in due course of law. As observed from the pleading, the plaintiff has filed the suit on the basis of dispossession in view of section 6 of the specific relief act as well as on the basis of title claiming himself to be the owner of the suit property have been purchased vide documents dt. 11.01.13 from one Smt. Sunita. It is further mentioned that plaintiff got possession of the suit property on 11.01.13 itself from Smt. Sunita. The plaintiff further claimed that when he visited to his relative on 10.04.13 and came back on 11.04.13, he found the locks broken and thereafter filed this suit. In view of the claim of the plaintiff as well as the pleading of the parties, the question which remain to be examined as to (1) Whether the plaintiff has proved that he was dispossessed from the suit property on 10.04.13/ 11.04.13 as CS No. 391/14 page 9 of 21 Dharmendra Vs. Kamini Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi. claimed, and (2) whether the plaintiff can be considered to be the owner of the suit property by virtue of the documents executed by Smt. Sunita dt. 11.01.13.
14. In this case, plaintiff is the only witness who was examined to prove the case. The plaintiff examined herself as PW 1 by way of affidavit Ex. PW 1/ 1 and relied upon the several documents to prove that he is the owner of the suit property and was dispossessed on 10.04.13 /11.04.13. The witness/ PW 1 further deposed that he received the possession of the suit property from Smt. Sunita on 11.01.13. The defendant on the other hand claimed that she has purchased the suit property from Rajbir Singh i.e father of Aditya Chaudhary who is the claimed source of the suit property by the plaintiff. 15 The onus to prove the issue i.e. regarding illegal dispossession from the suit property by defendant and is entitled for restoration of possession as she was dispossessed on the plaintiff. The plaintiff claimed that he called at 100 number to the police when he returned back on 11.04.13 at 100 number and also made complaint to the police vide DD No. 30B dt. 07.05.13. The said complaint dt. 07.05.13 is not proved by plaintiff at all in accordance with law nor any steps was taken to summon the concerned witness from PS and proved his complaint to the reason best known to the plaintiff. The said complaint is merely the photocopy on record and not proved at all as per the Indian Evidence Act. Moreover the plaintiff failed to explain any reason for not making any complaint and waiting for about one month from the cause of action of dispossession. The said call made by police/ PCR at 100 number on 11.04.13 is also not proved to corroborate his evidence as the concerned CS No. 391/14 page 10 of 21 Dharmendra Vs. Kamini Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi. witness was neither summoned nor any steps were taken in this respect. Regarding the dispossession of the plaintiff on 10.04.13/ 11.04.13, there is nothing on record except the bald averments of the plaintiff. Neither any person from the locality nor any of the person from whom the plaintiff purchased and received possession of the suit property were also called and produced before the court to prove the contention by the plaintiff. Merely vague and bald assertion are not sufficient to prove the factum of dispossession as claimed by the plaintiff. Further the cross examination of PW 1 / plaintiff was shattered during cross examination as the witness deposed that "I do not remember the date and time when I came back to my house at Delhi after leaving my wife at her parents place at Hapur. I had gone to suit property on 10th or 11.04.13. I have not placed any documents on record to show that I made a call to PCR at number 100 on 11.04.13. I do not remember the date when for the first time, I made written complaint to police Ex. PW 1/
6. I do not know the whereabouts of Vishnu and Sunita." It is reiterated that Sunita is the person from whom the plaintiff claimed to have purchased the suit property and derived his title and received possession but it is very strange that he does not know even her whereabouts. It is noted that no such person like Vishnu or Sunita who were the earlier owners of the property as claimed by plaintiff are produced before court in support of contention and proved the issue. No action was taken including any criminal action by plaintiff against the defendant for alleged dispossession and this facts itself casts shadow on the case of plaintiff. There is nothing on record nor anything is proved by the CS No. 391/14 page 11 of 21 Dharmendra Vs. Kamini Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi. plaintiff to the satisfaction of this court and on the basis of preponderance of probabilities that the plaintiff was in possession or was dispossessed from the suit property as claimed in the suit.
16. The learned counsel for plaintiff vehemently argued that on the basis of document relied by plaintiff, plaintiff is the only owner of the suit property and defendant have no right, title or interest in the suit property. This court does nor find itself in consonance with the arguments by counsel for defendant. None of the document relied by plaintiff are registered. Moreover, these document are not proved in accordance with law and provision of Indian Evidence Act. Even the concerned witness who executed the same were not produced to prove the said execution. The filing of the document is not sufficient to prove the case and discharge the onus. 17 Section 5 of the Transfer of Property Act, 1882 ( ' TP Act' for short) defines ' transfer of property' as under: " 5. Transfer of Property defined: In the following sections " transfer of property " means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself 9 for to himself) and one or more other living persons; and " to transfer property" is to perform such act." XXX XXX Further Section 54 of the TP Act defines ' sales' thus :
" Sale" is a transfer of ownership in exchange CS No. 391/14 page 12 of 21 Dharmendra Vs. Kamini Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi. for a price paid or promised or partpaid and part promised.
Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property."
Section 17 of the Indian Registration Act, 1908: " 17. Documents of which registration is compulsory. (1) The following documents shall be registered, if the CS No. 391/14 page 13 of 21 Dharmendra Vs. Kamini Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi. property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866 ( 20 of 1866), or the Indian Registration Act, 1871 ( 8 of 1871), or the Indian Registration Act, 1877 ( 3 of 1877), or this Act came or comes into force, namely
(a) Instrument of gift of immovable property;
(b) other nontestamentary instruments which purport or operate to create, declare, assign, limit or extinguish , whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
18. It is settled law that title of immovable property above the value of Rs. 100/ can only be transferred by way of a registered instrument as prescribed Under Section 17 of the Indian Registration Act, 1908 and by way of documents of sale as recognized under Section 54 of the Transfer of the Property Act. As held in AIR 1969, SC 1316, the documents of which registration is necessary under the transfer of Property Act ( such as under
Section 54 of the TP Act) but not under the Registration Act fall within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction of acting any immovable property CS No. 391/14 page 14 of 21 Dharmendra Vs. Kamini Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi. comprise therein and do not affect any such immovable property.
19. As held in 128 (2006) DLT 407 (DB) titled M. L. Aggarwal Vs. Oriental Bank of Commerce & Ors, : " The petitioner has only produced an agreement to sell, will and a power of attorney and a receipt for payment of money but these in our opinion do not constitute a sale. Under Section 17 (1) (b) of the Registration Act, Sale of an immovable property can only be by a registered deed. In our opinion, the petitioner has no right, title or interest in the suit property as he has not purchased it by any registered sale deed. An immovable property cannot be purchased by a mere power of attorney or agreement to sell."
The ratio was further reiterated by Hon'ble Delhi High Court in AIR 2003, Delhi 120 titled G. Ram Vs. DDA wherein it is mentioned that transfer of immovable property can only be affected by executing a registered documents. Merely making an agreement of sale or execution of power of attorney could not transfer right, title or interest of any immovable property.
20. This court is guided in view of the judgment of Hon'ble Supreme Court in Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, reported as 183 (2011) DLT 1 (SC) in this respect. As held, GPA , Agreement to Sell, Will and receipt would not confer ownership rights in respect of immovable property. Hon'ble Supreme court vide order dt. 15.05.09 reported as Suraj Lamps & Industries V/s State of Haryana, 2009(7) SCC (366) referred illaffects of GPA sells or sell agreement/ GPA/ will transfer holding that there cannot be sell by execution of power of attorney nor there can be transfer by CS No. 391/14 page 15 of 21 Dharmendra Vs. Kamini Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi. execution on agreement to sell and power of attorney and will. It was further reiterated that immovable property can be legally and lawfully transferred/ conveyed only by a registered deed of conveyance. Transaction 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 recognized or valid mode of transfer of immovable property. The courts will not treat such transaction as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53A of the Transfer of Property 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 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 transaction known as GPA sales.
21. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Hon'ble Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance ( para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872( para 13) and devolution of interest pursuant to a will( para 14).The object of giving validity to a power of attorney given for CS No. 391/14 page 16 of 21 Dharmendra Vs. Kamini Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi. consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney.
22. Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will.
In the facts of this case, neither the provision of section 53 A of the transfer of property act nor the provision of section 202 of the contract act is applicable. Infact there is nothing on record either produced/ proved by the plaintiff regarding the claim of the ownership except the bald averments.
23. Section 27 of Indian Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an obligation to set forth in the instrument all facts and circumstances which affects the chargeability of duty on that instrument. Section 17 of the Registration Act, 1908 makes deed of conveyance compulsorily registrable. The transfer of an immovable property can only be by a deed of conveyance and in the absence of a deed of conveyance ( duly stamped and registered as required by law), no right, title or interest in an immovable property can be transfered. With regard to the legal validity of CS No. 391/14 page 17 of 21 Dharmendra Vs. Kamini Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi. such documents i.e. agreement to sell, GPA, Will and receipt, the Hon'ble Supreme Court in the case of Suraj Lamps and Industries Pvt. Ltd. Vs. State of Haryana reported in AIR 2009 SC 3077 has held that such documents cannot create any right in respect of immovable property. The only way a contract of sale can create title to immovable property is by way of a deed of conveyance as defined under Section 54 of the Transfer of Property Act and registered in pursuance of the provisions of Section 17 of The Registration Act, 1908. No such document has been executed in favour of plaintiff nor proved on record.
24. The agreement to sell Ex. PW1/2 relied by the plaintiff is admittedly un registered. There is doubt regarding the admissibility of such agreement to sell relied by the plaintiff itself. This court is guided in this respect in view of judgment of Hon'ble High Court in CRP No. 19/2014 decided on 22nd August, 2014 titled as Sh. Ashwani Kumar Vs. Smt. Sukhdevi and Ors.
Section 53 A of the Transfer of Property Act 1882 was amended by Act 48 of 2001 w.e.f. 24.09.2001. The amendment was brought about by the Registration and other Related laws ( Amendment) Act, 2001. As as result of the amendment, an agreement to sell cannot be relied upon to claim part performance and entitlement to possession unless the agreement to sell is registered and stamped at 90 % of the value of the sale deed. Admittedly, Earnest money ReceiptcumAgreement is not a registered document. Section 17 (1A) of Indian Registration Act provides that the documents containing contract to transfer for consideration any immovable property for the purposes of Section 53A of Transfer of Property Act shall be registered if they have CS No. 391/14 page 18 of 21 Dharmendra Vs. Kamini Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi. been executed on or after the commencement of Registration and other Related laws ( Amendment) Act 2001 and if such documents are not registered on or after such commencement then they shall have no effect for the purposes of said Section 53A of Transfer of Property Act. It is also noted that the payment under the agreement to sell in question is in cash and not by cheque, thus reading to grave doubt even with respect to the existence and validity of agreement itself.
25. This Court is conscious of the judgment of the Hon'ble High Court in the case of Sh. Ramesh Chand Vs. Suresh Chand reported in 188 (2012) DLT 538 in which the judgment in the case of Suraj Lamps (supra) was interpreted. In the case of Ramesh Chand (supra) the Hon'ble High Court was pleased to hold that right to possess immovable property arises not only from a complete ownership right but also by having a better title.
In the present case, plaintiff has claimed title on the basis of GPA, Agreement to Sell, Payment receipt and the will but the execution of the documents not proved. None of these documents are registered nor proved in accordance with provision of law. No steps was taken by plaintiff to summon the concerned witness or proved this document in accordance with law. Even if these documents were executed in favour of the plaintiff, the same would not create any title in his favour. As mentioned, the plaintiff claimed to be the owner of the suit property which is denied by defendant. Since there is no registered sale deed executed in favour of the plaintiff in respect of the suit property in accordance with provisions of Transfer of Property Act, 1882, the CS No. 391/14 page 19 of 21 Dharmendra Vs. Kamini Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi. plaintiff is not the owner of the suit premises and not entitled for the relief of possession as prayed in the suit.
26. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title.
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this Court the CS No. 391/14 page 20 of 21 Dharmendra Vs. Kamini Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi. plaintiff has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
27. The testimony of the PW, DW, documents on records and the pleadings of the parties established that the plaintiff failed to prove the case and discharge the onus. This court does not find any merit or substance in the suit of the plaintiff. The suit is liable to be dismissed and plaintiff is not entitled for any relief as prayed in the suit. Issue No. 1 and 2 are decided against the plaintiff.
Relief.
In view of aforesaid discussion and findings, this court of the considered view the plaintiff is not entitled for any relief as prayed in the suit. The suit of plaintiff is accordingly dismissed with costs. Decree sheet be drawn accordingly.
File be consigned to record room.
Announced in open Court on this 01st day of December, 2014 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 391/14 page 21 of 21 Dharmendra Vs. Kamini