Delhi District Court
Mukesh Kumar vs Smt. Savita Nagpal on 15 April, 2013
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 453/2012
IN THE MATTER OF:
1. Mukesh Kumar
2. Vijay Kumar
3. Krishan Kumar
4. Lalit Kumar
(All 14, S/o Late Sh. Sher Singh)
5. Sh. Mohan Lal,
S/o Late Pt. Har Chand, (Since deceased through LR's )
5(a) Sh. Niranjan Singh, S/o Sh. Mohan Lal.
5(b) Sh. Suresh Kumar, S/o Sh. Mohan Lal.
5(c) Sh. Rajender Prasad, S/o Sh. Mohan Lal.
5(d) Sh. Ashok Kumar, S/o Sh. Mohan Lal.
5(e) Sh. Narender Pal, S/o Sh. Mohan Lal.
5(f) Sh. Sunil Dutt, S/o Sh. Mohan Lal.
5(g) Smt. Kuahalya Devi, D/o Sh. Mohan Lal.
(All r/o WZ3435, Shadi Puri, New Delhi110008 ..........Plaintiffs
Versus
1. Smt. Savita Nagpal, W/o Sh. M.P. Nagpal
2. Sh. Rajesh Bhagat, S/o Sh. R. K. Bhagat
Both Residents of :
XVII/3026/A1,
Ranjeet Nagar,
New Delhi110008 ...........defendants
Suit No. 453/2012 Page No. 1 of 24
Date of Institution: 17.05.06
Date of Reserving for Judgment: 19.03.13
Date of Judgment : 15.04.13
SUIT FOR POSSESSION, INJUNCTION, MESNE PROFIT AND
DAMAGES
JUDGMENT:
1. Vide this judgment, I shall decide a suit for possession, injunction, mesne profit and damages filed by the plaintiff. The brief facts necessitated in filing the present suit are as under:
2. The brief facts of the case as per the plaintiff is that the plaintiff are the owners of the land underneath in the property bearing Nos, XVII/3026/A1 measuring 525 sq. yards our of Khasra No. 379/292 and Khasra No. 7, situated in the area of Shadi Pur in the Abadi of Ranjeet Nagar, New Delhi and its municipal Number XVII/ 3026/ A1, Ranjeet Nagar, New Delhi 110008 as shown in the site plan and here in after referred as suit property and as shown red in site plan. It is further submitted that the defendant entered into a lease agreement on 18.06.1980 for a period of 11 months only. That defendants purchased the Malba Build over the suit land for a sum of Rs. 40,000/ vide a separate registered receipt and will from the plaintiff no. 1 and 5 which was expired on 18.05.1981 i.e. after 11 months of the commencement of the said lease deed. Suit No. 453/2012 Page No. 2 of 24 However, the defendants continued to pay the rentals at Rs. 16/ per month to the plaintiffs against the receipt. It is further submitted that the defendants are liable for the liability, however, defendants have partly sublet, assigned or otherwise partly parted with the possession of the land to the tenants. It is submitted that the said lease Deed has not been renewed subsequently by the plaintiffs, hence the defendants having no right to remain in the possession of the piece of the land on the aforementioned plot. It is submitted that the defendant has not paid the lease money/ rent / licence fee for the last 45 years. It is further submitted that as per the specific terms of the aforementioned lease deed, "if the second party infringes the term and conditions of this lease deed then the first party shall be entitled to eject the second party from the said property through the court of law a the cost of second party". It is submitted that the defendant has admittedly not paid the rent of the suit property (land) since last 45 years, thus the defendant has no right title or interest to remain in the possession of the piece of land as he is not paying the lease money/ licence fee and the said lease has not renewed at any point of time, hence the plaintiffs are entitled for the arrears of rent along with possession of the piece of land by removal or demolition of the structure thereupon. It is further submitted that the since last few years plaintiff has been Suit No. 453/2012 Page No. 3 of 24 approaching the defendants for vacating the piece of land by removal of structure thereon, but the defendants on some pretext of the other dragged on the issue. It is submitted that despite plaintiff's innumerable efforts, approaches, requests and reminders, the defendants had not been paying any heed to the same and the plaintiffs were constrained to send a legal notice through his lawyer dated 01.03.2006 whereby directing the defendants to pay the entire arrears of the lease money/ rent for the aforesaid piece of land and also call upon to remove the existing superstructure on the above said piece of land, within 15 days time from the date of receipt of legal notice or in any case on th or before 30 April, 2006. The defendants has responded the said legal notice vide dated 17.04.2006 whereby they have admitted the creation if the said lease deed and thus admitted that they have entered into a lease agreement with the plaintiff no. 1 and 5. It is further submitted that the defendant no. 1 has categorically stated that he has purchased the superstructure. It has been categorically stated that the defendant no. 1 has entered in a lease agreement. It is further submitted that despite the service of the said legal notice, the defendants have refused to hand over the peaceful, vacant possession of the said property and denied the same vide his reply dated 17.04.2006. On the basis of the aforesaid Suit No. 453/2012 Page No. 4 of 24 averments, present suit has been filed for adjudication.
3. Pursuant to the summons, defendants appeared and filed their written statement taking preliminary objection that plaintiff no. 2, 3 & 4 have no locus standi to be party in this suit and they are liable to be struck off as plaintiffs as there is misjoinder of plaintiffs in the suit. The defendant in reply on merit denied that the plaintiffs were and are owners of land underneath the property bearing Nos. XVIII/3026/A measuring 525 sq. yards out of Khasra No. 7, situated in the area of Shadi Pur in the Abadi of Ranjeet Nagar, New Delhi and its municipal Number XVII/ 3026/ A1, Ranjeet Nagar, New Delhi 110008. According to the representations of plaintiffs and various documents executed by them jointly and severally in favour of defendants, the plaintiffs were perpetual lessees of the said land for sixty years. Their claim of ownership of land is contrary to written statement documents. It is further contended that that defendants are making reference to document dated 18.06.1980 alleged to be lease deed, relied upon by plaintiffs. The terms of said document cannot be enforced nor it can be received in evidence as the same has not been drawn on requisite value of stamp paper. The document is a bilateral documents i.e. it is signed both by the alleged lessors and lessees. It required registration in accordance with Property Act. Due to the Suit No. 453/2012 Page No. 5 of 24 aforesaid legal infirmities defendants. However, the defendants are entitled to refer to the admissions in that document to their benefit. The plaintiffs filed an agreement to sell dated 18.06.1980 in the court in order to sell the property of the defendants. It is further contended that the plaintiffs, as lessees of land measuring 525 sq. yards under the suit property, had represented to defendants to be paying Rs. 16/ per month, as grounds rend, to the owner from whom they had obtained the lease. After selling on 18.06.1980 the lease hold rights in land and ownership rights in superstructure of the aforesaid property, mentioned in agreement dated 18.06.1980,the plaintiffs did not with to pay ground rent of Rs. 16/ per month from their pocket to the persons from whom they had acquired lease hold rights of land underneath the house. They had wanted the defendants to pay that money and to ensure the payment thereof oral agreement was reached and duly complied with. The sale transaction of house with lease hold rights in land was completed as entire agreed consideration had been paid to plaintiffs under receipt which was duly registered. The defendants have at all times since 18.06.1980 been and still are ready and willing to perform their part of the agreement. The defendants paid Rs. 16/ per month as ground rend per month to the plaintiffs as agreed but after some time the plaintiffs, out of malafide intentions, Suit No. 453/2012 Page No. 6 of 24 started putting variation to the agreed terms. Further the defendant denied that the defendants had purchased only super structure for a sum of Rs. 40,000/. In fact what was sold to the defendants was entire superstructure and leasehold rights in the land measuring 525 sq. yards. The subject matter of sale is correctly recorded in sale agreement dated 18.06.1980. The said agreement was made irrevocable. The proprietary possession of the property sold to the defendants was delivered to them in part performance of sale agreement. The husbands of both the defendants were already in actual possession, as tenants, of the property which was subject of sale in agreement dated 18.06.1980 as such proprietary possession was delivered to defendants. The plaintiffs had to obtain sale permission and to execute the sale deed of property at the expenses of defendants which the defendants always were and still are prepared to meet. The plaintiffs have failed to execute sale deed of the said property till date despite request. It had not been intended that the defendants would ever be treated as tenants of (1) land underneath the house or (2) tenants of land and superstructure thereon. It was intended that the land could be got vacated by ignoring and removing the superstructure on non payment of Rs. 16/ per month as ground rent. It is further contended that clause 7 of sale agreement dated Suit No. 453/2012 Page No. 7 of 24 18.06.1980 itself provides for payment of ground rent. On 22.05.2006 the Ld. Counsel for plaintiffs filed in court sale agreement dated 18.06.1980 with the representation that the lease deed, relied upon by the said agreement. It is submitted that no relationship of the nature evidenced by alleged lease deed dated 18.06.1980 or pleaded in the plaint was intended to be created. No document of the nature of lease deed, relied upon and filed by the plaintiff, was to be at all brought into existence. The said document is an absolute nullity to the extent it is inconsistent with the sale of immovable property. It is further contended that the plaintiffs have set up an anamolous situation in the plaint. There can be only one right in immovable property at any particular time. It cannot be that the person is both the owner and tenant in the property. It is denied that the defendant purchased only Malba build over the suit land and entered into lease agreement as alleged. It is further contended that the defendants, in performance of their part of the agreement, had been paying the agreed ground rent at Rs. 16/ per month to plaintiffs but after some time from 18.06.1980 the plaintiffs turned dishonest and started claiming the said sum of Rs. 16/ per month as rent on the allegations that the defendants were only their tenants in respect of the property covered by sale agreement dated 18.06.1980 and that they were not owners of the Suit No. 453/2012 Page No. 8 of 24 property. In those circumstances, some money remained unpaid due to refused of plaintiffs to accept it as ground rent. The defendants are ready to pay it as ground rent as agreed. The non payment of ground rent did not have the effect of committing breach of agreement nor it is so provided in the agreement. The non payment of ground rent was not made actionable. It is further contended that the defendants are owners of the suit land and superstructure thereon under agreement dated 18.06.1980 and their possession is protected under Section 53A of Transfer of Property Act. The alleged lease deed dated 18.06.1980, relied upon by plaintiff in the suit, is a sham and void document. Hence the suit of the plaintiff be dismissed. The defendants have relied upon decision in Ramesh Kumar Vs. Official Assignee AIR 1993 Bombay 274, Nalakath Sainuddin Vs. K. Suleman AIR 2002 SC 2562, Hardeep Kaur Vs. Kailash 1993 ( 2012) DLT, 168, Srimant Shyam Road Vs. Prhalad (2002) 3 SCC 676, Rattanshi Patel Vs. Mohd. Kazim Ali Khan 2004 (2) RCR 76 Andhra Paradesh, Parnam Bala Ji Vs. B. Venkatramayya AIR 1988 Andhra Pradesh 250, Kuldeep Singh Vs. Surender Singh 1999 RLR 20, Delhi. Sushil Kanta Vs. Rajeshwar Kumar 1999 RLR 289, M/s Rubnap Export Import Vs. Eastern Associate company AIR 1984 Delhi 20, Jai Kishan Mehta Vs. Ram Prasad 1996 RLR 77 DB.
Suit No. 453/2012 Page No. 9 of 24
4. The plaintiff has filed replication to the written statement filed by the defendant. In his replication the plaintiff has reaffirmed the contents made in the plaint and denied all the allegation made by the defendant in his written statement and further submitted that the suit of the plaintiff be decreed.
5. On the basis of the pleadings of the parties, the Ld. Predecessor of this court vide order dated 15.10.2008, framed the following issues for adjudication:
i) Whether the plaintiff is entitled for ownership?OPP
ii) Whether plaintiff is entitled for injunction?OPP
iii) Whether plaintiff is entitled for mesne profits and damages as sought?OPP
iv) Whether plaintiff has no locus standi to file the present suit?OPD
v) Whether suit is bad for nonjoinder of necessary parties, if so, its effect? OPD
vi) Whether property was sold by plaintiffs to defendants as contended by the defendant in the written statement? OPD
vii) Relief.
6. To prove his case plaintiff has examined himself as PW1. PW1 has filed his evidence by way of affidavit Ex. PW1/A. The PW1 has reiterated the facts mentioned in the plaint and relied upon the Suit No. 453/2012 Page No. 10 of 24 document which are as under:
i) The lease deed dt. 18061980 is Ex. PW1/1.
ii) Site plan is Ex. PW1/2.
iii) The counterfoil of the rent receipt No. 667 dt. 19061980 is Ex. PW1/3.
iv) The counterfoil of the rent receipt No. 878 dt. 01071984 is Ex. PW1/4.
v) The counterfoil of the rent receipt No. 995 dt. 31011988 is Ex. PW1/5.
vi) The copy of the notice dt. 01032006 is Ex. PW1/6 , the postal receipt and AD card of the same are Ex. Pw1/7 to PW1/10.
vii) The reply dt. 17042006 is Ex. PW1/11.
The PW1 was also crossexamined by the Ld. counsel for the defendants. During the crossexamination of the PW1 was confronted with the document Ex. PW1/D1.
7. On the other hand the defendants have examined Smt. Rajesh Bhagat as DW1. DW1 has filed her evidence by way of affidavit Ex. DW1/A. In her evidence the DW1 has reiterated the facts mentioned in the written statement and relied upon the documents which are as under:
i) The copy of Will dt. 18061980 executed by Sh. Mohan Lal is mark A. Suit No. 453/2012 Page No. 11 of 24
ii) The copy of Will dt. 18061980 executed by Sh. Kukesh Kumar Lal is mark B.
iii) Copy of affidavit dt. 18061980 is Mark C. The DW1 was also crossexamined by the Ld. counsel for the plaintiff.
8. I have heard the counsel for both the parties and have gone through the record carefully.
9. Issue No. 4 Whether plaintiff has no locus standi to file the present suit?OPD The issue no. 4 is taken up and decided first for the sake of convenience. The burden to prove this issue was on the defendants. The defendants have stated that the plaintiff nos. 24 have no locus standi to file the present suit. Reliance is placed on lease deed dated 18/6/1980 Ex. PW1/1 and agreement to sell dated 18/6/1980 Ex. PW1/D1 to show that the said documents have not been executed by plaintiff nos. 24. Now, the onus to prove this issue shifted on the plaintiff nos. 24 but they have neither led any evidence in this regard nor proved this issue otherwise. Thus, the plaintiff nos. 24 do not have any locus standi to file the present suit. Accordingly, this issue is decided in favour of the defendants and against plaintiff nos. 24.
10.Issue No. 1 Whether the plaintiff is entitled for Suit No. 453/2012 Page No. 12 of 24 ownership?OPP Issue No. 3 Whether plaintiff is entitled for mesne profits and damages as sought?OPP Issue No. 5 Whether suit is bad for nonjoinder of necessary parties, if so, its effect? OPD For the sake of convenience Issue nos. 1, 3 and 5 are being decided together. The plaintiff is seeking decree of possession, based on title i.e. Under S. 9 of the Specific Relief Act, as one of the reliefs in the instant case. The case of the plaintiffs is that they had let out the suit land vide lease deed dated 18/6/1980 Ex. PW1/1 to the defendants and the superstructure existing over the said land was purchased vide agreement to sell dated 18/6/1980 Ex. PW1/D1, wills dated 18/6/1980 executed by plaintiff nos. 5 & 1, respectively Mark A & B, by the defendants and handed over the possession to them vide affidavit dated 18/6/1980. The same was to be sold for a sum of Rs. 40,000/.
11.At this juncture, it would be worthwhile to reproduce relevant paras of lease deed Ex. PW1/1; agreement to sell dated 18/6/1980 Ex. PW1/D1 and wills dated 18/6/1980, Mark A & B, which are as follows:
Lease deed Ex. PW1/1
Whereas the first party is the lessee of land measuring 525 Suit No. 453/2012 Page No. 13 of 24 sq. Yds. With the structure built thereon, bearing house no. 3026/A1, Ranjit Nagar, New Delhi of Khasra No. 379/292 & 7.
And whereas at the request of the second party the first party has agreed to let out the said property on the following terms and conditions of this lease deed:
1.that the rent of the suit property is fixed between the parties at Rs. 16/ per month from the date of execution of this lease deed.
2..............
Agreement to sell dated 18/6/1980 Ex. PW1/D1 That the first party for his legal needs and requirements has agreed to sell the superstructure of the said house with the lease hold rights of the said land under the said house for a sum of Rs. 40,000/ unto the second party......
Wills dated 18/6/1980, Mark A & B Whereas the testator is the exclusive owner and in possession of one half undivided share of structure of house no. 3026/A1, Ranjit Nagar, New Delhi with the leasehold rights of the land measuring about 525 sq. Yds. Under the said share of the said house.
Till the testator is alive he will remain the absolute owner of the said share of the said property and after the death of the testator the said executrees shall be the owners of the said share of the said property...........
12.The plaintiffs claim to be the owner of the suit property but no documentary proof of ownership has been brought forth. When a party pleads a particular fact then the documents in support of the same are necessarily to be proved. But the plaintiffs have failed in proving that they are the owners of the suit land.
13. From the aforesaid, it is clear that the plaintiff nos. 1 and 5 are Suit No. 453/2012 Page No. 14 of 24 the lessee of land measuring 525 sq. Yds. With the structure built thereon, bearing house no. 3026/A1, Ranjit Nagar, New Delhi and the plaintiffs had let out the land as well as the superstructure to the defendants @ a monthly rent of Rs. 16 per month. Thus, the present suit is barred by S. 50 of the Delhi Rent Control Act and the suit for possession/eviction of the defendants should have been filed before the Rent Controller. Further, if the plaintiffs have sublet the suit property to the defendants as a lessee, then the plaintiffs have not disclosed who is the landlord and if they had taken permission from the landlord for subletting the suit premises. This is a concealment of material facts by the plaintiffs.
14.The landlord should have been made a necessary party herein. It is well settled that a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose Presence is necessary for a complete and final decision on the question involved in the proceeding. It is equqlly well established that two tests are to be satisfied for Determining the question who is a necessary party. Tests are:(1) there must be a Right to some relief against such party in respect of the controversies involved in The proceedings (2) no effective decree can be passed in the absence of such party.
Suit No. 453/2012 Page No. 15 of 24
15.The law as regards nonjoinder of parties is no more res integra. If the decree cannot be effective without the absent parties, then the suit is liable to be dismissed. Meaning thereby that if a necessary party is not joined as a party, the suit is liable to be dismissed. But same is not the situation as regards the proper party and thus the suit is not liable to be dismissed for nonjoinder of proper party.
16. The decisions in Badri Narain Jha Vs. Rameshwar Dayal AIR 1951 SC 186, Jyotish Thakur Vs. Tara Kant Jha AIR 1963 SC 605, Hari Partap Vs. Ram Gopal AIR 1961 Rajasthan 18, Tintaman Matho Vs. Smt. Famindra Devi AIR 1973 Patna 175, Bala Krishanan Vs. Makkam AIR 1974 Kerela 18, Jagat Tara Devi Vs. S.S. Singh AIR 1980 Delhi07, Sh. Satish Kumar Vs. Zarif Ahmed 1997 RLR ( MSC 61) , Srimant Shyam Roa Vs. Parhlad (2002) 3 SCC 676, Anthani Vs. KC Ittoop AIR 2000 SC 3523, Venkata Gopal Vs. Rangapa 1884 ILR 7 Madras 365 ( FB), Sri Krishana Pur Mutt Vs. Gopalalrishnayya AIR 1967 Masur 65, Shanti Devi Vs. A.K. Benerji AIR 1981 SC 1550, Provash Chandra Dalvi vS. Vishwanath Benerji AIR 1989 SC 1834, Kishori Lal Potdar Vs. Devi Prasad AIR 1950 Patna 50 and Mahavir Prasad Vs. Sukhdeo Monga 1990 ( 2) RCJ 254 Delhi and provisions under section 53A, 106, 107, 108, 111 & 116 of the Transfer of Property Act & Section 17 of the Registration Act relied upon by the plaintiffs are Suit No. 453/2012 Page No. 16 of 24 of no assistance to the plaintiffs in view of the foregoing discussion as being not applicable to the facts of the present case.
17.The plaintiffs have not filed the requisite court fees for the relief of possession. The plaintiffs are directed to file the same within 30 days from the date of this Judgment.
In view of the foregoing discussion, the plaintiffs are not entitled to decree of possession and mesne profits and thus these issues are decided accordingly.
18. Issue No. 2 Whether plaintiff is entitled for injunction?OPP In view of the discussions in issue no. 1 above clearly the plaintiffs have not come to the court with clean hands. It is no more res integra that if a party does not come to the court with clean hands then it is not entitled to equitable relief of injunction. In Seema Arshad Zaheer and others v. Municipal Corpn. of Greater Mumbai and others ((2006) 5 SCC 282), the Hon'blE Apex Court held :
"30. The discretion of the Court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff; (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiffs rights is compared with or weighed against the need for protection of the defendants rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to Suit No. 453/2012 Page No. 17 of 24 grant such relief will be exercised only when the plaintiffs' conduct is free from blame and he approaches the Court with clean hands."
(See also: AIR 2008 SUPREME COURT 2291 "Mandali Ranganna v. T. Ramachandra"; Transmission Corpn. of A. P. Ltd. v. Lanco Kondapalli Power (P) Ltd. ((2006) 1 SCC 540)
19.Thus, the maxim of clean hands must not be taken too widely. Equity does not demand that its suitors shall have led blameless lives. The maxim withholds assistance of Court where the wrongdoer is trying to enjoy the fruits of his own wrong. It is a self imposed ordinance that closes the door of a Court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief.
20.A party who seeks equity must bring on record the entire facts of his case supported by documentary proof. It has been held in Executive Committee of Vaish Degree College, Shamli v. Lakshmi NarainAIR 1976 SUPREME COURT 888 that the relief of injunction under the provisions of the Specific Relief Act is purely discretionary and the plaintiff cannot claim it as right. The relief has to be granted by the Court according to sound legal principles and ex debito justitiae. The Court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression. In these Suit No. 453/2012 Page No. 18 of 24 circumstances, while exercising its discretionary powers the Court must keep in mind the well settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum. Clearly, if a party suppresses material facts from the court then the relief of injunction cannot be granted to that party.
In view of the foregoing discussion, the plaintiffs are not entitled to the relief of injunction. This issue is accordingly decided against the plaintiffs.
21.Issue No. 6 Whether property was sold by plaintiffs to defendants as contended by the defendant in the written statement? OPD The case of the defendants in this regard is that they have purchased the suit property from the plaintiff nos. 1 and 5 vide agreement to sell dated 18/6/1980 Ex. PW1/D1, wills dated 18/6/1980 executed by plaintiff nos. 5 & 1, respectively Mark A & B, and received the possession of the same vide affidavit dated 18/6/1980 for a sum of Rs. 40,000/. The said agreement to sell is not a duly stamped and a registered document thus cannot be read in evidence. Also, the defendants have not brought forth any document to show that the consideration of Rs. 40,000/ was made to the plaintiffs towards purchase of lease hold rights of the Suit No. 453/2012 Page No. 19 of 24 plaintiffs.
22.At this juncture it would be worthwhile to discuss certain provisions of laws, which are as under:
Section 49 of the Registration Act Effect of nonregistration of documents required to be registered. No document required by section 17 47[or by any provision of the Transfer of Property Act, 1882,] to be registered shall (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: 47[Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 187748, 49[* * *] or as evidence of any collateral transaction not required to be effected by registered instrument.]
23. Section 35 of the Indian Stamp Act
35. Instruments not duly stamped inadmissible in evidence, etc. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:
Provided that .
( a) any such instrument not being an instrument chargeable 2[ with a duty not exceeding ten naya paise] only or a bill or exchange or promissory note, or acknowledgement or delivery order, shall subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof Suit No. 453/2012 Page No. 20 of 24 exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it; .
(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters, and anyone of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII of Chapter XXXVI of the Code of Criminal Procedure, 1898 (V of 1898);
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the [Government], or where it bears the certificate of the Collector as provided by section 32 or any other provisions of this Act.
24.From the aforesaid provisions it is manifest that a lease deed for a term of more than one year is compulsorily registrable u/s. 17 of the Registration Act and if not registered would not be read in evidence for the purpose of the transaction but can be read only for collateral purpose but if the said document is unregistered and unstamped then it cannot be read in evidence at all. In this regard in Avinash Kumar Chauhan v. Vijay Krishna MishraAIR 2009 SUPREME COURT 1489, the hon'ble apex court held as under:
Section 35 of the Act rules out applicability of provision Suit No. 453/2012 Page No. 21 of 24 under S. 49 of Registration Act, 1908 as it is categorically provided therein that a document of this nature viz., unregistered sale deed shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded the document would not be admissible for collateral purposes.
25.Therefore, a suit cannot be dismissed on the ground that the document is unregistered and unstamped when the same is required to be registered and stamped as per law, but such document is inadmissible in evidence. Therefore, the agreement to sell dated 18/6/1980 Ex. PW1/D1 is inadmissible in evidence.
26.Further, At this juncture it would be worthwhile to discuss the decision in Suraj Lamp & Industries Pvt. Ltd vs. State of Haryana & Anr. SLP (C) No. 13917 of 2009 dated 11.10.2011. In the aforesaid decision, the Hon'ble Supreme Court has clearly laid down that such documents do not create any right, title and interest in immovable property. The Hon'ble Supreme Court held as under:
"Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank - 94(2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction"
when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some king of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions Suit No. 453/2012 Page No. 22 of 24 to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions 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 transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property"
27.Now from the aforesaid it is clear that the defendants are claiming that they have purchased the suit property on the basis of the agreement to sell, affidavit, will etc. but in view of the aforesaid decision in Suraj Lamp's case (supra), the defendants cannot claim any right, title and interest as there is no valid transfer of property vide the aforesaid documents.
28.Also, since the plaintiffs themselves were not the owners then how can the defendants claim ownership. Also, the defendants have admitted that even after the execution of agreement to sell dated 18/6/1980 Ex. PW1/D1, wills dated 18/6/1980, they were paying rent to the plaintiffs @ Rs. 16/ per month. If the defendants had purchased the rights of the plaintiffs over the demised premises then no prudent man would have continued to pay the rent from the purchaser.
Suit No. 453/2012 Page No. 23 of 24
29.The judgments and provisions relied upon by the plaintiffs are of no assistance to the plaintiff and defendants in view of the foregoing discussion as being not applicable to the facts of the present case.
In view of the foregoing discussion, the defendants have failed to prove this issue and accordingly, this issue is decided against the defendants.
30. Relief:
In view of the foregoing discussion, the suit is hereby dismissed.
Parties shall bear their own costs. Decree sheet be prepared accordingly. File be consigned to the record room after due compliance.
Announced & signed in the ( Snigdha Sarvaria) open court on 15042013. Civil Judge/Central05 Delhi Suit No. 453/2012 Page No. 24 of 24