Delhi District Court
Sh. V. K. Anand vs Surender Kumar & Ors on 15 December, 2016
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 No. 283/16
IN THE MATTER OF :
Sh. V. K. Anand
S/o late Sh. Y. P. Anand
R/o B11, East Krishna Nagar,
Delhi110051 ........ Plaintiff
V E R S U S
(1) Sh. Surender Kumar
S/o Late Sh. Yad Ram
(2) Smt. Manju Devi
W/o Sh. Surender Kumar
Both R/o B29, Gali No. 9,
West Karawal Nagar,
Delhi110094
(3) Sh. Sanjay Kumar Bhatia
S/o Sh. Chander Prakash Bhatia
R/o H. No. 94/1, First Floor, Chandu Park,
Som Bazar, Delhi110051 ......Defendants
Date of Institution of suit : 06.05.2016
Date of argument : 15.12.2016
Date of Judgment/Order : 15.12.2016
Decision : Suit is dismissed with cost.
CS No. 283/16 page 1 of 23
V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi
Suit for possession, recovery of rent & damages
J U D G M E N T
1.The plaintiff has filed this suit for possession against the defendants regarding property bearing No. B29, Gali No. 9, Pusta Road West Karawal Nagar, Delhi94 admeasuring 50 Sq. yards consisting two room kitchen, latrine, bathroom built up on ground floor( hereinafter called the suit property as shown in red colour in site plan); plaintiff has further prayed for arrears of rent of Rs. 4,14,000/ @ Rs. 6,000/ per month with effect from 01.04.10 till 31.12.15 and future mesne profits / damages @ Rs. 10,000/ per month till handing over the possession.
2. Briefly stated the plaintiff's case is that the plaintiff is the absolute owner of the property bearing No. B29, Gali No. 9, Pusta Road, West Karawal Nagar, Delhi110094 admeasuring 50 Sq. yards consisting two rooms kitchen, latrine, bathroom on the ground floor. On 16.02.10, the defendant No. 1 approached the plaintiff for Rs. 7,00,000/ to pay the dues of defendant No. 3 on behalf of defendant No. 1 and 2. Plaintiff made payment of Rs. 7,00,000/ to defendant No. 3 by way of account payee cheque and defendant No. 3 executed a discharge slip and transferred the paper in favour of plaintiff. The defendant No. 1 did not make the payment till 31.03.10 and the cheque issued by defendant No. 1 was dishonored. The plaintiff filed a complaint U/s 138 NI Act. The defendant No. 3 executed the documents of ownership in favour of plaintiff and accordingly the plaintiff is owner of the property ; defendant No. 3 also handed over the rent agreement between defendant No. 1 and 3 and CS No. 283/16 page 2 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi therefore defendant No. 1 and 2 are liable to pay the arrears of rent till handing over the possession of the suit property. Legal notice dt. 07.12.15 was also issued by plaintiff to defendant No. 1 and 2 to vacate the suit premises and hand over the possession but of no avail. Hence, this suit is filed by plaintiff against the defendants.
3. The defendant No. 3 did not appear despite service and therefore was proceeded exparte vide order dt. 11.07.16. WS not filed on behalf of defendant No. 1 and 2 despite ample opportunities therefore they were also proceeded ex parte vide order dt. 12.08.16. The case was thereafter fixed for exparte evidence of the plaintiff.
4. The plaintiff filed his affidavit by way of evidence Ex. PW1/A and examined himself as PW1 in support of the case. The witness deposed as per averments made in the plaint and also deposed regarding the relevant documents i.e. site plan Ex. PW 1/1, original agreement to sell dt. 10.10.10 Ex. PW 1/ 2, certified copy of judgment dt. 21.09.15 Ex. PW 1/ 3, original GPA dt. 10.10.10 Ex. PW 1/4, original rent agreement dt. 24.12.08 Ex. PW 1/5, legal notice Ex. PW 1/6, reply of legal notice Ex. PW 1/7, order dt. 26.09.15 Ex. PW 1/ 8, order dt. 03.03.16 Ex. PW 1/ 9, GPA dt. 24.12.08 Ex. PW 1/10 ( colly). As no other witness remained to be examined by the plaintiff, the PE was closed.
5. I have heard the Ld. counsel for the plaintiff and gone through the relevant materials on records. I have also considered the relevant provisions of law.
6. Having drawn my attention to the pleadings of the parties, testimony of witnesses and materials on records, it is submitted by learned counsel for the CS No. 283/16 page 3 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi plaintiff that plaintiff has proved his case and the defendants have no right, title or interest in the suit property. It has been proved that the plaintiff is the owner of the suit property. The Ld. Counsel for the plaintiff prayed to pass decree in favour of plaintiff and against the defendants.
7. I have given my thoughtful consideration to the submissions made on behalf of the plaintiff.
8. 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 before the trial court 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 for partition, 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 that "A civil case is decided on balance of probabilities. 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 CS No. 283/16 page 4 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi 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".
9. Section 101 of the Evidence Act, 1872 defines " burden of proof" and 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 able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
10. The plaintiff claims to have purchased the suit property from the defendant No. 3 on the basis of agreement to sell Ex. PW 1/2, GPA Ex. PW 1/4, will, payment receipt, possession letter and affidavit all dt. 10.10.10. None of these documents are registered and all these documents are notarized only. As none of these documents are registered, they are not sufficient to create right, title or interest in the suit property in favour of plaintiff and by virtue of these documents, the defendant No. 3 cannot transferred the immovable property in view of provisions of Transfer of Property Act. The plaintiff has further relied upon the rent agreement executed between the defendant No. 1 CS No. 283/16 page 5 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi and 3 dt. 24.12.08 Ex. PW 1 /5 and this court has no hesitation in holding that the said rent agreement is not proved by plaintiff at all in accordance with provisions of law. Plaintiff is neither signatory to the rent agreement Ex. PW 1/5 nor a witness therein. No steps was taken by the plaintiff at all to prove the rent agreement Ex. PW 1/5 as per law by calling the relevant witness for the reasons best known to the plaintiff. It is relevant to note that defendant No. 2 sold the suit property to defendant No. 3 as claimed by plaintiff but the documents relied upon by the plaintiff in this respect are not sufficient to prove the ownership. No letter was ever issued by the plaintiff to the defendant No. 1 and 2 as well to claim them as a tenant at all. The claim of the plaintiff regarding ownership thereof appears to be without any substance. The ld. counsel for the plaintiff has relied upon the proceedings and judgment in the complaint case U/s 138 NI Act between the plaintiff and defendant No. 1 wherein the defendant No. 3 has appeared as a witness. No such statement or proceedings has been proved at all by plaintiff after calling the relevant records as well. Merely oral and bald averments are not sufficient to prove the contentions. Even otherwise, this court is not bound by the findings of the court in the proceedings U/s 138 NI Act and plaintiff is under obligation to prove the ownership in view of the contentions in accordance with provisions of Transfer of Property Act.
11. The main and only contentions of the plaintiff remained that the suit property was transferred in the name of plaintiff by defendant No. 3 vide above referred documents and defendant No. 3 admitted the execution of these documents in his testimony recorded before Ld. Magistrate in proceedings U/s CS No. 283/16 page 6 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi 138 NI Act. Even if it is presumed that these documents were executed by defendant No. 3 for consideration, by virtue of these documents, the plaintiff cannot be considered to be the owner of the suit property having right, title or interest in respect of the same.
12. Section 17 (1A) of the Registration Act, 1908 was amended with effect from 24.09.01. After the amendment, the agreement to sell for the purpose of part performance U/s 53 (A) of the Transfer of Property Act, 1882 has to be registered and in case, such document is not registered, the same shall have no effect for the purposes of Section 53 (A). In this case, no registered agreement to sell is on record or relied by the plaintiff.
13. It is appropriate and relevant to note the relevant legal provisions and authorities for proper examination and adjudication of the issues.
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 for a price paid or promised or partpaid and part CS No. 283/16 page 7 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi 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 53 A of the TP Act defines ' part performance ' thus :
" Part Performance. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can CS No. 283/16 page 8 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi be ascertained with reasonable certainty.
And the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and had done some act in furtherance of the contract.
And the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor b the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
Section 17 of the Indian Registration Act, 1908: CS No. 283/16 page 9 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi " 17. Documents of which registration is compulsory. (1) The following documents shall be registered, if the 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.
14. 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 CS No. 283/16 page 10 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi admissible as evidence of any transaction of acting any immovable property comprise therein and do not affect any such immovable property.
15. 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.
16. 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) . As held, the document of title i.e. GPA , Agreement to Sell, Will and receipt would not confer ownership rights in respect of immovable property in his favour. 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 CS No. 283/16 page 11 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi nor there can be transfer by execution on agreement to sell and power of attorney and will.
It is relevant and necessary to reproduce relevant paras of judgment of Hon'ble Supreme Court in Suraj Lamps ( supra) reported as Manu/SC/1222/2011 which read as under: Scope of an Agreement of Sell:
11. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas V. S. A. Kamtam and Anr. (1977) 3 SCC 247, observed: "A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prasad Vs. Ram Mohit Hazra ( 1967) 1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognized in Section 3 of the Specific Relief Act, contract for sale is recognized in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein."
CS No. 283/16 page 12 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi In India the word ' transfer' is defined with reference to the word ' convey'. The word ' conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership........ ....... that only on execution of conveyance ownership passes from one party to another ..........."
In Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra (2004) (8) SCC 614, this court held: " Protection provided under Section 53 of the Act to the proposal transferee is a shield only against the transferor. It disentitles the tranferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party"
It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance ( sale deed). 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 transferred.
12. Any contract of sale( agreement to sell) which is CS No. 283/16 page 13 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi not a registered deed of conveyance ( deed of sale) would fall short of the requirements of Section 54 and 55 of Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property ( except to the limited right granted under Section 53A of Transfer of Property Act). According to Transfer of Property Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of Transfer of Property Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.
Scope of Power of Attorney
13.A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him( see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In state of Rajasthan v. Basant Nehata MANU/SC/0547/2005 : MANU/SC/0547/2005 : 2005 (12) SCC 77 this court held :
CS No. 283/16 page 14 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the Principal in favor of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powersof Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the done to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The done in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity.
CS No. 283/16 page 15 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi Any act of infidelity or breach of trust is a matter between the donor and the donee.
An Attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of grantor.
Scope of Will
14. A will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivo. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator.
It is said that so long as the testator is alive, a will is not be worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. ( see Sections 69 and 70 of Indian Succession Act, 1925). Registration of a will does not make it any more effective.
We therefore reiterate that immovable property can be legally and CS No. 283/16 page 16 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi 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.
17. 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 consideration even after death of the executants is to ensure that entitlement under such CS No. 283/16 page 17 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi 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.
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.
18. It is settled that ownership and possession are two entirely different concepts. It necessarily follows that it is not only possible but also permissible to transfer one without the other. In simple words it is permissible to transfer ownership without transferring possession. Similarly, it is also possible to transfer possession without transferring ownership. It is relevant to note here that in this case neither the ownership had been transferred nor possession of the suit property was ever handed over to the plaintiffs in pursuance of the provisions of the Transfer of Property Act.
19. 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 CS No. 283/16 page 18 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi 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 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 by defendant.
20. 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.
21. As discussed, plaintiff cannot be considered as owner on the basis of the GPA and other documents executed by defendant No. 3 in his favour. I have gone through the section 17(1 A) of the registration Act, 1988 which is amended with effect from 24.09.01. It is reproduced herein for reference: (1A) The documents containing contracts to transfer for consideration any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed or or after the CS No. 283/16 page 19 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi commecement of the 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 the said section 53A} In view of the aforesaid provisions, the claim of the plaintiff having purchased the suit property from defendant No. 3 appears to be baseless and have no defence. The contentions of plaintiff regarding the possession in view of the part performance of the agreement to sell have no merits. This court is further guided by judgment of Hon'ble Delhi High Court reported as 222 (2015) DLT 285 titled as Yashvir Singh Tomar V/s Dr. OP Kohli and others in this respect. As held in relevant para No. 4 and 5: " (4) By virtue of the amendment brought about to section 53A of the Transfer of Property Act, 1882 w.e.f. 24.09.2001 by the Act 48 of 2001, an agreement to sell in the nature of part performance cannot create rights unless the agreement is registered and stamped at 90 % of the value of the sale deed as per Article 23 A of the Schedule 1 of the Indian Stamp Act, 1899 as applicable to Delhi which was accordingly amended by the Act 48 of 2001"
" (5) In view of the above, since the Agreement to sell in question is an unregistered and unstamped Agreement to Sell, no rights can be claimed under the same. What cannot be directly done cannot be indirectly done and a power of attorney, merely because it is registered, will not confer rights in the nature of CS No. 283/16 page 20 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi ownership in the property. I may note that in fact a power of attorney which effectively gives ownership right of the suit property by allowing the attorney to sell the immovable property by virtue of Article 48 (f) of the Indian Stamp Act as applicable to Delhi will have to have the same duty as a conveyance deed as per Article 23 of the Indian Stamp Act for the amount of consideration"
The ratio of the judgment is squarely applicable in the facts and circumstances of this case. The plaintiff failed to prove regarding any transfer of property in his favour by defendant No. 3 and his ownership as claimed in the plaint. Neither Section 53 A of the Transfer of Property Act, 1882 nor Section 202 of the Contract Act, 1872 is applicable for ownership of plaintiff and the law laid down the Hon'ble Supreme Court in SLP (C) No. 13917 of 2009 titled as Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana & Ors. also is squarely applicable in the facts of this case. In view of the aforesaid provisions of law, the claim of the plaintiff regarding ownership on the basis of unregistered / notarized agreement to sell, GPA etc is not sustainable.
22. In the present case, plaintiff claimed the title on the basis of GPA and other documents but the execution of these documents not proved in accordance with the provisions of law. Even if these documents were executed by defendant No. 3 in favour of plaintiff, the same would not create any title in his favour. 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 plaintiff is not the owner of the suit CS No. 283/16 page 21 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi premises. The plaintiff further failed to prove that the possession was handed over as part performance of the agreement to sell and defendant No. 1 and 2 were permitted to use the suit property as permissive user. The plaintiff by no stretch of imagination can be considered as owner of the suit property having purchased the same from defendant No. 3 by virtue of documents dt. 10.10.10.
23. 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 plaintiff has succeeded in shifting the onus on the defendant and therefore, the burden of proof which CS No. 283/16 page 22 of 23 V. K. Anand V/s Surender Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi lay on the plaintiff had stood discharged. The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
24. In view of the aforesaid discussions and referred law, this Court is of the considered view that the plaintiff cannot be considered having right, title or interest in the suit property and the documents relied by the plaintiff is neither helpful nor sufficient to prove the claim of the plaintiff in the suit. Plaintiff is not entitled for decree of possession, recovery of rent and damages as prayed in the suit. The suit of the plaintiff is therefore liable to be dismissed. RELIEF: In view of the aforesaid discussions and findings, this court is of the considered opinion that plaintiff has failed to prove his case. The plaintiff is therefore not entitled for any reliefs as prayed in the suit. The suit of the plaintiff is dismissed with cost.
25. Decree sheet be drawn accordingly.
26. File be consigned to record room.
Announced in open Court on this 15th day of December, 2016 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 283/16 page 23 of 23 V. K. Anand V/s Surender Kumar & Ors.