Delhi District Court
Nand Kishore Sharma vs Mahavir Prasad Sharma on 30 July, 2013
In the Court of Dr. Rakesh Kumar : Additional Senior Civil Judge of
Central Delhi District at Tis Hazari Courts, Delhi
MCA No.14/2013
Unique I.D. No. 02401C0001612013
In the matter of:
Nand Kishore Sharma,
Son of late Hazari Lal Sharma,
Resident of Village Ram Pur,
P.O. Pataudi, District Gurgaon,
Haryana ......Appellant
V E R S U S
1. Mahavir Prasad Sharma,
Son of late Hazari Lal Sharma,
Resident of Gali No.67, Sant Nagar,
Burari, Delhi110084
Also at :
Village Madho Singh Pura,
P.O. Neem Rana Tehsil Behror,
District Alwar (Rajasthan)
2. The S.H.O.,
Police Station Burari,
Delhi - 110084 .......Respondents
Date of Institution : 02.01.2013
Reserved for Judgment : 30.07.2013
Date of Decision : 30.07.2013
MCA No. 14/2013 Page 1 /11
Appeal under Order XLIII Rule 1 of the Code of Civil Procedure, 1908
J U D G M E N T
1. This is an appeal under Order XLIII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC') preferred by the appellant, Nand Kishore Sharma (the plaintiff before the trial court) against the order dated 13.12.2012 passed by Ms. Riya Guha, Civil Judge01 of North District whereby the learned Civil Judge dismissed an application under Order XXXIX Rules 1 and 2 CPC made by the plaintiff.
2. Brief facts for the decision on appeal are that the appellant has instituted a suit for permanent and mandatory injunction along with an application for temporary injunction against the respondent stating that the plaintiff is absolute and exclusive owner of the plot measuring 100 square yards situated in Khasra No.134/20, Gali No.67, Sant Nagar, Burari, Delhi (hereinafter referred to as 'the suit property') and is in possession of the same; that the documents of the suit property have been lost and report has been made to the police vide Non Cognizable Record (NCR) No.1411/2008 dated 16.07.2008 lodged with the Police Station Timar Pur, Delhi; that on 03.09.2012, the plaintiff reached at the suit property and saw that the defendant no.1 was making a foundation of the suit property through labourers and masons as well as he was also installing a hand pump there by making a boundary wall MCA No. 14/2013 Page 2 /11 thereon and as such taken over possession of the suit property illegally and unlawfully; that wife of the defendant no.1, Smt Geeta was also present there and she was also supervising the said work; that the plaintiff immediately informed the PCR; that the plaintiff has every apprehension of encroachment of the suit property by the defendant no.1 and the police officials are also in connivance with the defendant no.1 and hence the suit.
3. The suit as well as the application are contested by the defendant no. 1 by way of written statement of his defence as well as written reply.
4. In the written statement filed on behalf of the defendant no.1, preliminary objections are taken to the effect that the plaintiff has not come to the court with clean hands and has suppressed the material facts from the court; that the suit of the plaintiff is not maintainable as the plaintiff is not in possession of the suit property and the plaintiff has no concern whatsoever in the suit property; that the site plan filed by the plaintiff is wrong; that the plaint is not duly signed and verified by the competent person.
5. In reply on merits, it is contended that the plaintiff is the real younger brother of the defendant no.1 and has been indulging in unlawful activities of grabbing the suit property illegally and forcibly; that the plaintiff has not produced any proof of his MCA No. 14/2013 Page 3 /11 title/ownership and possession of the suit property; that the plaintiff has not mentioned anything about how he derived title and from whom and when; that the alleged FIR/NCR is false and managed with ulterior motive intentionally; that the defendant no.1 from his hard earned money purchased the suit property in the name of his wife, Smt. Geeta in August, 1993 and thereafter got installed hand pump and also done boundary wall and since then the defendant no.1 and his wife are in possession of the suit property. It is denied that the plaintiff is absolute or exclusive owner of the suit property. It is also denied that the documents of the plot have been lost. It is specifically denied that the plaintiff is in possession of the suit property. In the written statement as well as written reply, it is stated that the suit as well as the application be dismissed.
6. I have heard Mr. Vikram Sharma, Advocate for the appellant and Mr. M.P. Chaudhary, Advocate for the respondent. I have also gone through the trial court record.
7. Having drawn my attention on the impugned order, memorandum of appeal and documents filed by the appellant, it is submitted by counsel for the appellant that original documents qua the suit property were lost so he could not produce any document in the trial court. It is further submitted that the plaintiff is the owner of the suit property.
MCA No. 14/2013 Page 4 /118. Per contra, having drawn my attention on the NCR, it is submitted by counsel for the respondent that as per NCR only GPA has been lost. It is further submitted that the appellant does not have sale deed in respect of the suit property in his favour.
9. I have given my thoughtful consideration on the submissions made on behalf of the parties.
10. As I have already observed this is an appeal against an interim order passed under Order XXXIX Rules 1 & 2 CPC. The law is well settled that the discretion exercised by a court in passing such interim order should not be interfered unless and until the order passed by the court appears to be perverse and in violation of the settled principles of law.
11. Relevant portion of the order dated 13.12.2012 under challenge to the present appeal dismissing the application for temporary injunction is extracted as follows: "5. In support of his case, the plaintiff has filed site plan, copy of NCR bearing no.1411/2008 dt. 16.07.2008 & copy of complaint dt. 05.09.2012 made with PS Timar Pur. Apart from these documents, the plaintiff filed no other documents in support of his case. Perusal of the copy of the complaint/NCR dt. 16.07.2008 shows that the plaintiff had made a complaint with respect to loss of Power of Attorney with respect to the suit property.
6. At this stage, the Court is not supposed to make roving enquiry into the title and the bonafides of the parties. It is suffice if the plaintiff is able to establish a prima facie case in his favour. The plaintiff submits that he is the owner of the suit property. However, he has not filed any documentary evidence by way of photographs etc. to establish his possession. However, perusal of the complaint dt.16.07.2008 as well as memo of parties filed in the present suit reveals that the plaintiff is resident of Village Rampur, Dist. Gurgaon, Haryana meaning thereby the plaintiff is not in possession of the suit property. The plaint is vague and unspecific as to certain particulars. As mentioned by the defendant, the plaintiff MCA No. 14/2013 Page 5 /11 has given no mention that how he has derived title to the suit property. Moreover, nothing has been mentioned by the plaintiff whether the suit property is vacant or has a built up structure.
In such a scenario, the Court is of the view that there is no primafacie case in favour of the plaintiff, hence, application is dismissed accordingly."
12. A perusal of plaint shows that the plaintiff is seeking relief of permanent injunction for restraining the defendants and their agents etc. from forcibly dispossessing the plaintiff from the suit property. The plaintiff has based his claim on the allegations that he is owner of the suit property. Although, the plaintiff has not specifically stated in the plaint how he has become owner of the suit property but a perusal of Non Cognizable Report relied upon by the plaintiff reveals that the document of ownership of the plaintiff, allegedly lost by him, is General Power of Attorney. Admittedly, the plaintiff does not have any sale deed in respect of the suit property in his favour.
13. It was held by the Hon'ble Delhi High Court in G.Ram v. Delhi Development Authority, AIR 2003 Delhi 120 (DB) as follows : An agreement of sale is not a document of transfer nor by reason of execution of a power of attorney, the right, title or interest of an immovable property can be transferred. Such a transfer can only be effected by executing a registered document as provided for under section 54 of the Transfer of Property Act read with section 17 of the Indian Registration Act.
14. The law laid down has been reiterated by the Hon'ble Delhi High Court in M.L. Aggarwal v. Oriental Bank of Commerce and others, 128(2006) Delhi Law Times 407(DB) as under : MCA No. 14/2013 Page 6 /11
7. The petitioner had 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.
11.In our opinion, the petitioner has no right, title or interest in the 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.
15. The law laid down in G.Ram's case (supra) and M.L. Aggarwal's case (supra) has been reemphasized by the Hon'ble Supreme Court in Suraj Lamp and Industries Private Limited v. State of Haryana and Another, (2012) 1 Supreme Court Cases 656 which clearly declared the scope of agreement for sale as follows: "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 Prosad v. Ram Mohit Hazra [1967]1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognised 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." 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...."
16. The Hon'ble Supreme Court in Suraj Lamp's case (supra) further explained the scope of power of attorney which is as follows: MCA No. 14/2013 Page 7 /11 "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 vs. Basant Nehata - 2005 (12) SCC 77, this Court held :
A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the PowersofAttorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.
An 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 the guarantor."
17. In the light of law clearly declared by the Hon'ble Supreme Court in Suraj Lamp's case (supra) a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property and a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property.
MCA No. 14/2013 Page 8 /1118. In view of the law discussed above, no right, title or interest qua the suit property were conferred on the plaintiff on execution of document relied upon by him.
19. There is another disturbing feature in the case of the plaintiff, namely, in para no. 4 of the plaint, it is admitted by the plaintiff himself that on 03.09.2012, the defendant no.1 took over the possession of the suit property by making a boundary wall and installing a hand pump in the suit property. I fail to understand how could the plaintiff come to the possession of the suit property once he was dispossessed from the suit property by the defendant no.1.
20. The Hon'ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy AIR 2008 SC 2033 summarizes the scope in regards to the suit for prohibitory injunction relating to immovable property as under: "Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration with possession, with or without consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with consequential injunction. Where there is remedy an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor."
21. As I have already observed, the plaintiff is not in possession of the suit property and the defendant has raised serious clouds on the rights of the plaintiff qua the suit property but the plaintiff has neither sought any declaration of ownership nor possession of the portion under the possession of the defendant. Section 41(h) of the MCA No. 14/2013 Page 9 /11 Specific Relief Act, 1963 also says, "An injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust." In the facts and circumstances of the present case, in view of provisions of Section 41 (h) of the Specific Relief Act and in the light of law laid down in Anathula Sudhakar's case (supra), equally efficacious reliefs available to the plaintiff would have been the relief of declaration of ownership with possession of the portion in possession of the defendant but the plaintiff has failed to seek these reliefs. The relief of injunction simplicitor cannot be granted.
22. In the light of law laid down in G.Ram's case (supra), M.L. Aggarwal's case (supra), Suraj Lamp's case (supra) and Anathula Sudhakar's case (supra), this Court has very serious doubts about the maintainability of the present suit in the present form. The learned Trial Court shall proceed to hear the parties regarding maintainability of the suit.
23. For the aforestated discussions, I am of the considered opinion that there are no grounds for interfering with the impugned order and the discretion has been judiciously exercised by the trial court.
24. For the aforestated reasons, I find no merit in this appeal and the same is, accordingly, dismissed.
MCA No. 14/2013 Page 10 /1125. Appeal file be consigned to Record Room. The trial court record be send back along with copy of the judgment. Parties shall appear before the learned Trial Court/Successor Court on 02.08.2013 at 2 PM.
Announced in the Open Court on 30.07.2013 (Dr. Rakesh Kumar) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi MCA No. 14/2013 Page 11 /11