Delhi High Court
Om Prakash Singhal vs K.L. Kurian on 19 February, 2014
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 19th February, 2014.
+ CS(OS) 1433/2012 & IA No.9528/2012 (u/O 15A r/w 151 CPC)
OM PRAKASH SINGHAL ..... Plaintiff
Through: Mr. A.K. Singhla, Sr. Adv. with Mr.
Deepak R. Dahiya, Adv.
Versus
K.L. KURIAN ..... Defendant
Through: Mr. D.C. Yadav, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The pleadings have been completed and the suit is ripe for framing of
Issues if any.
2. The senior counsel for the plaintiff states that on the defence
contained in the written statement, no material question of law and fact
arises for adjudication and the suit, insofar as for the relief of possession can
be decreed immediately.
3. The counsels have been heard on the said aspect.
4. The plaintiff has instituted this suit for recovery of possession from
the defendant of flat No.G-4 in the multi-storied building situated at DD-36,
Kalkaji, New Delhi and for recovery of mesne profits, pleading:
(a) that the plaintiff is the sole absolute owner of the said flat
CS(OS) No.1433/2012 Page 1 of 13
having purchased the same from Sh. Parvesh Kumar Kohli on
18.03.1996, though the Deed of Apartment with respect to the flat in
favour of the plaintiff in accordance with the provisions of the Delhi
Apartment Ownership Act, 1986 is still to be executed;
(b) that the said flat also stands mutated in the records of the
municipal authorities in the name of the plaintiff and the plaintiff has
been paying property tax with respect thereto;
(c) that the land underneath the said multi-storied building was
originally owned by Sh. Inder Raj Sehgal who entered into an
agreement with M/s Saraswati Builders for raising construction
thereon and the said builder transferred the subject flat in favour of
Sh. Parvesh Kumar Kohli and from whom the plaintiff has acquired
the same;
(d) that the plaintiff in January, 2006 allowed the defendant to
occupy the said flat, temporarily, on friendly basis, without charging
any consideration therefor;
(e) that the possession of the defendant of the said flat since then
has been permissive;
(f) that the plaintiff vide notice dated 11.04.2012 terminated the
CS(OS) No.1433/2012 Page 2 of 13
licence of the defendant to use and occupy the said flat and called
upon the defendant to vacate the same;
(g) that the defendant however failed to do so;
Hence the suit for recovery of possession and for mesne profits /
damages for use and occupation at the rate of Rs.60,000/- per month has
been filed.
5. The defendant has contested the suit, by filing a written statement, on
the grounds:
(i) that the plaintiff is not the owner of the subject flat and has
concealed material facts and has come to this Court with unclean
hands and the suit is liable to be dismissed on this ground;
(ii) that the suit is bad for non-joinder of necessary party i.e. the
wife of the defendant;
(iii) that the wife of the defendant namely Mrs. Mariam Kurien is
the owner of the said flat and the defendant along with his wife is
residing in the said flat since January, 2004, in the capacity of owner;
(iv) that the plaintiff has not filed any proof of his ownership of the
said flat;
(v) that the said flat was transferred in favour of Ms. Mariam
CS(OS) No.1433/2012 Page 3 of 13
Kurien by Sh. Ravinder Kumar Singhal son of the plaintiff and
attorney of Smt. Sudesh Kohli wife of Sh. Parvesh Kumar Kohli
(though in the written statement mentioned as Sh. Praveen Kumar
Kohli but the counsels are ad-idem that reference is to the same
person) supra;
(vi) that the copies of the income tax returns filed by the plaintiff
along with the plaint showing the plaintiff as the owner of the subject
flat do not make the plaintiff the owner of the flat;
(vii) that similarly merely because the said flat is mutated in the
name of the plaintiff in the municipal records and the plaintiff is
paying the property tax thereof, does not make the plaintiff the owner
of the said flat;
(viii) that the flat is owned by the wife of the defendant vide
"baynama executed by none other than the son of the plaintiff
showing and claiming himself to be an authorized person / attorney of
the actual owner of the suit premises i.e., Sudesh Kohli";
(ix) that the suit for possession is not maintainable against the
defendant since the wife of the defendant is the owner of the flat with
effect from January, 2004.
CS(OS) No.1433/2012 Page 4 of 13
6. Needless to state, the plaintiff has filed a replication controverting the
defence.
7. The senior counsel for the plaintiff commenced arguments by stating
that though the defendant has claimed his wife to be the owner but has not
filed a single document in support thereof and since the plea of ownership of
the wife is based on a „baynama‟ executed by the son of the plaintiff and
which has not been filed, no Issue needs to be framed thereon.
8. The counsel for the defendant stated that he attempted to file the copy
of the „baynama‟ yesterday in the Court but owing to not having the same in
electronic form, it could not be filed. He has in Court handed over
photocopy of list of documents dated 13.02.2014 along with the said
„baynama‟ dated 14th January, 2004 in Hindi language and which is taken on
record.
9. The counsel for the defendant has further contended that the plaintiff,
along with the plaint, did not file the documents by which he claims to have
become the owner of the flat and has filed the documents subsequently and
the defendant wants to amend the written statement in the light of the
documents subsequently filed by the plaintiff.
10. It may however be noted that the "subsequent" documents were filed
CS(OS) No.1433/2012 Page 5 of 13
by the plaintiff in this Court as far back as on 25.09.2012, after service of
copies thereof on the defendant and the defendant filed the written statement
on 12.02.2013.
11. The counsel for the defendant however states that the documents were
received by him only in pursuance of the order dated 05.09.2013 in this suit.
12. Even if that be so, sufficient time has elapsed therefrom also. Need is
thus not felt to adjourn the hearing, particularly when the counsel for
defendant is not even able to tell, what plea by way of amendment of written
statement, the defendant wants to take in view of the said documents.
13. I have pursued the aforesaid „baynama‟ and the same, even if believed
though denied by the plaintiff, is at best an agreement to sell the said flat
executed by the son of the plaintiff in favour of the defendant for
consideration of Rs.11,00,000/- out of which a sum of Rs.1,00,000/- was
paid as earnest money and the balance consideration was payable on or
before 15.04.2004. The defendant, along with the „baynama‟ has also filed
photocopy of a receipt for Rs.1,00,000/- purportedly executed by son of the
plaintiff. It is also a term of the „baynama‟ that upon the failure of the wife
of the defendant to pay the balance sale consideration by 15.04.2004, the
sum of Rs.1,00,000/- will be forfeited.
CS(OS) No.1433/2012 Page 6 of 13
14. The counsel for the defendant, on enquiry, states that the originals of
the „baynama‟ and the receipt are not with the defendant, though in the
ordinary course of human behaviour they should have been with the
defendant.
15. The plaintiff in his documents of title of the flat, besides photocopy of
Agreement to Sell dated 18.03.1996 executed by Sh. Parvesh Kumar Kohli
and affirmed by his wife Mrs. Sudesh Kohli in his favour, has also filed a
Power of Attorney executed by Mrs. Sudesh Kohli in favour of son of the
plaintiff and whereunder, he had the authority to sell / agree to sell the said
flat.
16. The documents filed by the plaintiff in support of his claim of
ownership of the flat show, (i) that one Sh. Inder Raj Sehgal was the
perpetual lessee of the land underneath the multi-storeyed building
aforesaid; (ii) Sh. Inder Raj Sehgal entered into a Collaboration Agreement
dated 28th October, 1991 with M/s Saraswati Builders and under which
Agreement M/s Saraswati Builders constructed the multi-storeyed building
on the said land, at its own cost and expense; (iii) that as per the said
Collaboration Agreement the said built up multi-storeyed building was to be
divided/shared between Sh. Inder Raj Sehgal and the said M/s Saraswati
CS(OS) No.1433/2012 Page 7 of 13
Builders; (iv) that the said Sh. Inder Raj Sehgal and M/s Saraswati Builders
vide Agreement to Sell dated 4th November, 1992 agreed to sell the subject
flat No.G-4 in the said multi-storeyed building to Sh. Parvesh Kumar Kohli
and upon receipt of entire sale consideration and in part performance of
Agreement to Sell also put the said Sh. Parvesh Kumar Kohli into
possession of the said flat; (v) that Sh. Inder Raj Sehgal had also at the time
of entering into Collaboration Agreement on 28 th October, 1991 constituted
Sh. Satish Chander Seth being the managing partner of M/s Saraswati
Builders as his general attorney with powers to sell the flats in the said
multi-storeyed building; (vi) that the said Sh. Satish Chander Seth, at the
time of Agreement to Sell dated 4th November, 1992 in favour of Sh.
Parvesh Kumar Kohli constituted Mrs. Sudesh Kohli wife of Sh. Parvesh
Kumar Kohli as attorney with respect to the subject flat No.G-4; (vii) that
the said Sh. Satish Chander Seth at the time of Agreement dated 4 th
November, 1992 also executed a Will with respect to the subject flat No.G-4
in favour of Sh. Parvesh Kumar Kohli; (viii) that Sh. Parvesh Kumar Kohli
vide Agreement to Sell dated 18th March, 1996 as aforesaid agreed to sell
the subject flat to the plaintiff and Mrs. Sudesh Kohli as attorney with
respect to the said flat confirmed the said Agreement; and, (ix) that Mrs.
CS(OS) No.1433/2012 Page 8 of 13
Sudesh Kohli at the same time executed a power of attorney in favour of Sh.
Ravinder Kumar son of plaintiff with respect to the said flat and Sh. Parvesh
Kumar Kohli also executed a Will with respect to the said flat in favour of
the plaintiff.
17. Though the plaintiff denies that his son executed the „baynama‟ and
receipt aforesaid, however even if the same were to be believed/accepted,
the fact remains that the Agreement to Sell contained in the „baynama‟
relied upon by the defendant, in favour of his wife, is an unregistered
document. Pursuant to the amendment with effect from 24th September,
2001 of The Registration Act, 1908 and the Transfer of Property Act, 1882,
no plea of delivery of possession in part performance is entertainable
without the Agreement to Sell in pursuance to which possession is delivered
being registered. Not only so, neither does the baynama state that possession
has been delivered in part performance thereof nor is it the plea of the
defendant in the written statement. The wife of the defendant, even if held
to be an agreement purchaser of the said flat and even if it were to be held
that possession of the said flat pursuant to the said Agreement to Sell was
delivered, has no right to continue in possession thereof in pursuance of the
said Agreement to Sell.
CS(OS) No.1433/2012 Page 9 of 13
18. I may notice that in the receipt also dated 14th January, 2004
accompanying the „baynama‟, the address of the wife of the defendant is
given as that of the subject flat, meaning that the defendant was in
possession of the said flat since prior to 14.01.2004. However the defendant
has not pleaded any other right under which he was in possession of the flat.
19. Thus, the defendant cannot be said to have any right to continue in
possession, on the basis of the said „baynama‟.
20. As far as the denial by the defendant of ownership of the plaintiff of
the subject flat is concerned, the plaintiff as aforesaid has filed copies of the
documents aforesaid, which unequivocally show that while the plaintiff was
the purchaser of the said flat from Sh. Parvesh Kumar Kohli, the son of the
plaintiff was constituted as the attorney with respect to the said flat. Though
there is no Sale Deed of the flat in favour of the plaintiff but the Apartment
Act, application whereof is not controverted by counsel for defendant, vide
Section 4 thereof, vests ownership rights in favour of such
allottees/transferees of apartments/such flats. The Division Bench of this
Court in judgments dated 28th May, 2010 and 13th July,2012 in W.P.(C)
No.1959/2007 titled O.S. Bajpai Vs. The Administrator (Lt. Governor of
Delhi) has noticed the difficulties being faced in execution of deeds of
CS(OS) No.1433/2012 Page 10 of 13
apartments and given directions with respect thereto.
21. Further, though the defendant has denied the ownership of the
plaintiff but the admission by the defendant of the son of the plaintiff being
the Power of Attorney from Shri Sudesh Kohli with respect to the said flat
proves the transaction under which plaintiff claims to be the owner. The
existence of power of attorney with respect to the said flat in favour of son
of the plaintiff does not negate the ownership of the plaintiff. The practice of
taking a power of attorney of the property so aforesaid to be purchased,
instead of in the name of the purchaser, in the name of the
nominee/confidant of purchaser is well established and common in such
transactions. If the Power of Attorney is taken in favour of the agreement
purchaser, it poses a problem in the purchaser, as attorney of the seller
subsequently executing the Sale Deed in his own favour. The defendant
also, save for generally denying the title of the plaintiff, has not pleaded
anybody else to be the owner and the very fact that the defendant / his wife
dealt with son of the plaintiff as seller confirms the documents of title on the
basis of which the plaintiff has instituted the present suit. It is worth
noticing that the defendant in the written statement has not denied, the plea
of the plaintiff in his income tax returns showing himself as the owner of the
CS(OS) No.1433/2012 Page 11 of 13
said flat and the said flat in municipal records being registered in the name
of the plaintiff and the plaintiff paying property tax thereof and has merely
pleaded that the same do not constitute plaintiff as owner. However, the
said admission also supports the transaction by which the plaintiff claims to
be the owner. It cannot be lost sight of that it is the plaintiff who is the
transferee of the flat under the Agreement to Sell aforesaid and not the son
of the plaintiff and thus under the provisions of Apartment Act also, the
ownership of the flat would vest in the plaintiff.
22. I may also notice that the Division Bench of this Court in Prabhu
Dayal Vs. Roop Kumar AIR 2005 Delhi 144, relying on the earlier
judgment of the Supreme Court in Sant Lal Jain Vs. Avtar Singh (1985) 2
SCC 332 has held that in a suit by licensor for recovery of possession from
licencee, merely a mandatory injunction can be claimed and it is not
necessary to claim the relief of possession. The same view has subsequently
been followed in Joseph Severance Vs. Benny Mathew (2005) 7 SCC 667.
23. I have also considered whether a decree can be passed in the absence
of the wife of the defendant. I am of the view that it can be, as the defendant
in the present case has pleaded the defence of his wife and there is no reason
to treat them differently.
CS(OS) No.1433/2012 Page 12 of 13
24. Thus, on the basis of the law and the pleadings, no material Issue
arises for adjudication.
25. Order 15 of the CPC permits the Court to decree the suit forthwith
where the parties are not found at issue.
26. A decree for possession of flat No.G-4 in the multi-storied building
situated at DD-36, Kalkaji, New Delhi is therefore passed in favour of the
plaintiff and against the defendant.
27. The senior counsel for the plaintiff on instructions states that the
plaintiff at present is not pressing the claim for mesne profits but with liberty
to revive the same if the defendant pursues the matter further and /or if the
defendant does not vacate the flat within a period of 3 months from today.
28. Liberty in this regard is granted.
29. The plaintiff is also awarded costs of this suit. Counsel‟s fee assessed
at Rs.25,000/-.
Decree sheet be prepared.
RAJIV SAHAI ENDLAW, J.
FEBRUARY 19, 2014 „gsr‟..
CS(OS) No.1433/2012 Page 13 of 13