Delhi District Court
Vinod Kumar Gupta (Now Deceased) vs Jagdish Prasad Gupta on 21 December, 2021
IN THE COURT OF NEHA GARG,
CIVIL JUDGE-01, CENTRAL DISTRICT, DELHI
Suit No.596295/2016
CNR No:-DLCT03-000196-2004
Vinod Kumar Gupta (now deceased)
through LRs
1A. Abhishek Gupta,
S/o Sh. Subhash Gupta,
1B. Pardeep Gupta
S/o Sh. Subhash Gupta,
Both R/o 308, Mukherjee Nagar,
Kingsway Camp, Delhi.
Presently at:- T 404, Haiderpuri, Nehru Camp,
Outer Ring Road-26, Delhi. .............. Plaintiffs
Versus
Jagdish Prasad Gupta
S/o Sh. Tansukh Rai Gupta
R/o G-7, Bhagwan Das Nagar, Delhi-110026. .........Defendant
Date of institution of suit : 23.12.2004
Date of pronouncement of Judgment : 21.12.2021
SUIT FOR DECLARATION OF OWNERHIP AND PERPETUAL
INJUNCTION
JUDGMENT
Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 1 of 34
1. The present suit has been filed for declaration of ownership and perpetual injunction against the defendant. The brief facts of the case as stated in the plaint are that the plaintiff was the absolute, sole and lawful owner of the plot of land of 500 square yards out of Khasra No. 27/21, situated in the Village of Jhasoda Majra, Burari, Delhi, known as Sangam Vihar, (hereinafter referred to as 'the suit property') which was purchased by the plaintiff for a consideration of Rs. 35,000/- on 05.06.1990 by Agreement to Sell, General Power of Attorney, Special Power of Attorney executed by Sh. Om Prakash, Sh. Rishi Dutt, Sh. Ishwar Dutt sons of Sh. Ram Saroop, Sh. Surinder Kumar and Sh. Rajinder Kishore sons of Sh. Hari Dutt all residents of Village and Post Office Jhasoda Majra, Burari, Delhi. It is further averred in the plaint that the said property at the time of purchase was bounded as under:-
North : Plot of others South : 25' Road East : Plot of others West : 15' Road.
It is further averred in the plaint that after taking peaceful possession of the plot raised a boundary wall of 4'-5' height and installed an iron gate and locked the premises. It is further stated that the plaintiff also got a valuation report prepared of the suit property by Shri D.C. Bhagat, Government approved valuer on 15.06.1992 and later on in late 1994, colony occupants of land in Khasra No. 27/21 and 27/20 wanted to demarcate the plots for sale by consensus and concord between the colony residents-occupants of land. It is further stated that the occupants wanted to stuff 15' road heretofore in the West of the plot of the plaintiff to Easter side Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 2 of 34 and to such proposal keeping in view the convenience of all the residents- occupants, the plaintiff had no option except to agree to the public demand. It is further started that so the boundaries of the plot of land of the plaintiff changed and the position of the boundaries existing till date are as under:
North : Others plot South : Road 25' East : Road 15' West : Others plot
It is further stated in the plaint that plaintiff used to visit regularly at intervals, the plot of land since the year of occupation of the property and is still in actual physical possession of the suit property. It is further averred in the plaint that on 09.07.2000 suddenly the boundary wall was demolished by Shri Kuldeep s/o Raje, Swarup Tyag and Pramod Tyagi on the pretext that the plot in question falls in Khasra 27/20 who were restricted by the police. It is further stated in the plaint that on intervention of Police, PS Timarpur SI Shri Raghu Nath Tyagi visited the site and a complaint was lodged by the plaintiff to the SHO, PS Timarpur on 12.07.2000 and a Kalandara No. DD 6A/16A under Section 107/150 Cr.P.C. bearing No. 82/2000 was filed by the concerned police station in the Court of Ms. Varsha Sharma, SEM North Distt, P.S. Sarai Rohilla, Delhi on the report of the IO Shri Raghunath Tyagi, SI. It is further stated in the plaint that Ld. SEM Passed orders for demarcation of land and the ascertainment of Khasra numbers to resolve the dispute of khasra No. 27/21 and 27/20. It is further stated in the plaint that the demarcation order also referred to by SDM Civil Lines. It is further stated in the plaint that on 17.03.2001 the officials of the Revenue Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 3 of 34 Department Shri Ved Ram, Qunungo and Shri Ram Nath Mahto, Qunungo along with SI Raghunath Tyagi, PS Timarpur visited the site for revenue demarcation and after measurement it was found that the land in dispute formed part of Khasra No. 27/21 and not Khasra No. 27/20 and the fact was recorded, on the basis of the revenue report, by the police vide their DD No. 46-B dated 17.03.2001 and the SHO, PS Timarpur orally directed the plaintiff to reconstruct the boundary wall which was partly demolished by Shri Kuldeep and his associates. It is further averred in the plaint that between 17.03.2001-20.03.2001 the plaintiff started carrying out the construction of said demolished and damaged boundary wall of the property, after clear instructions from the Department of Revenue and Police and while the said construction was in progress and the building material was lying on the land of the plot of the plaintiff on 20.03.2001, the defendant Jagdish Prasad Gupta, his son and some other unknown persons (about 20 in number) came on the said plot of the plaintiff and started quarreling and attaching the labour and the brother of the plaintiff Shri Subhash Gupta who was supervising the construction work of the boundary wall of the plot of the land of the plaintiff and also demolished the boundary wall forcibly and also forcibly put tyres on the plot. On receipt of information from his brother Subhash Gupta the plaintiff rushed to the site and in the said quarrel mason named Naushad Ali got injured and on 07.04.2001 the plaintiff made a complaint to the SHO, PS Timarpur in writing requesting to restrict and restrain the defendant and his associates from interfering in the peaceful possession and ownership of the plaintiff and for removal of tyres which were put by the defendant and his associates in the plot of the plaintiff. It is further stated that after receipt of said complaint the SHO PS Timarpur Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 4 of 34 asked the defendant to get the demarcation of plot done again if he is not satisfied with the demarcation made on 17.03.2001 by the Revenue Officials in presence of the police. It is further averred in the plaint that a complaint was made by the defendant on 04.04.2001 with the police station Timarpur on which a Kalandara under Section 145Cr.PC was prepared by the police. It is further stated that the case pending in the Court of SDM, Civil Lines but there is no material on record which may segregate the land of Khasra No. 27/21 and 27/20 and the plots of the plaintiff and the defendant are properly demarcated so that the dispute is settled forever.
2. It is further stated in the plaint that the plaintiff is suffering from mental agony on account of unlawful trespass committed by the defendant which is causing regular inconvenience in undertaking any activity of starting construction on the land plot and the plaintiff always apprehends a breach of peace by the defendant.
3. It is further stated in the plaint that the cause of action has arisen in favour of the plaintiff and against the defendant firstly on 20.03.2001 when the defendant attacked and trespassed and demolished the boundary wall on the suit property owned and in possession of the plaintiff and the defendant had deliberately put his goods/tyres on the suit property and that the cause of action is continuing since 17.03.2001 when the demarcation was done on the plot of land by the revenue officials in presence of police officials and that the cause of action is still continuing.
4. Summons of the suit were issued to the defendant by the Ld. Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 5 of 34 Predecessor of this Court upon which the defendant had put his appearance with his Counsel and thereafter the matter was listed for filing of Written Statement on behalf of defendant.
5. It is stated in the written statement that Sh. Jagdish Prasad Gupta purchased plot of 1700 sq yards with dimensions of 66 ½ feet x230 feet from Shri Vijaypal, Ramananda, Ram Singh etc in 1997-99 with following boundaries.
East - 15 feet wide road West - House of Sh. Nazim and others.
North - 25 feet wide road.
South - 25 feet wide road.
It is further stated in the written statement that defendant has been in actual physical possession of land of plot of 1700 sq yards in Gali No. 5, Sangam Vihar with boundaries since 1997. It is further stated that the defendant has constructed boundary wall and one room over the plot and since then and the defendant has been using the same for the storage of old tyres. That the purchase of land in question the defendant was never interfered or questioned by anyone in any manner whatsoever till 20.03.2001 when plaintiff started interfering in the peaceful possession of defendant on the said plot and the PCR was also called and a kalandara under Section 145Cr.P.C. was also prepared on 13.07.2001 was forwarded by SHO Timarpur regarding the dispute over possession of the plot measuring 1700 sq yards in Sangam Vihar, Gali No. 5, Jharoda Majra Burari, Delhi and in fact that there was no dispute regarding possession of the said plot. It is further stated in the written statement that the case was Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 6 of 34 registered as case No. 30/SDM/CL/2001 u/s 145Cr.P.C. before Court of SDM, Civil Lines, District North and the Ld. SDM after leading the evidences and perusal of record finally disposed off the matter vide order dated 28.02.2005. That in the proceedings under Section 107/150 Cr.P.C. initiated by the police vide DD No. 16A dated 12.07.2000, PS Timarpur, Delhi, the plaintiff has admitted that his plot measuring 500 sq. yards with dimensions 42ftx107ft has the following boundaries:-
East- Rani Public School Building West- 15ft wide road/street.
North- Orther plot.
South- 25 ft wide road.
6. It is further stated in the written statement that on perusal of the site plan it is clear that the story of changing of boundaries/gali is entirely false because from gali no.1 to gali no. 6 the road is straight and all the galis are exactly there which were at the time of cutting the plots. It is further stated in the written statement that in the kalandara dated 12.07.2000 regarding dispute with Kuldeep, plaintiff has admitted that the gali was in west of his plot but in the plaint, he has stated that the gali was changed in 1994 to east whereas the said kalandara is of the year 2000. It is further stated that if the gali was changed in 1994 then, it would have been mentioned in the kalandara which is of later date but in the kalandara the same was not mentioned, which in turn indicates that the changing of the gali is concocted and framed story to grab the plot of the defendant illegally. It is further stated in the written statement that order for demarcation was passed to resolve the dispute between plaintiff and Kuldeep in which the land was Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 7 of 34 separate, the dimensions were separate and the boundaries were separate. It is further stated that the plaintiff has admitted in his statement the boundaries as specified in the kalandara bearing No. 82/2000 and it has got nothing to do with the plot of the defendant, which is entirely different. That the plaintiff is in a habit to occupy the properties of others as a Kalandara was also filed against him in which land was separate with its dimension and boundaries. It is further stated that the plaintiff tried to grab the land of defendant in pretext of Khasra Number and started demolishing the boundary wall of the plot of the defendant, which falls in Khasra No. 27/20 and plaintiff plot falls in Khasra No. 27/21. It is further stated that before cutting the plot, land is identified by its khasra number but after cutting the plot khasra number losses its significance because one khasra number contained 4850 square yards land and in one khasra number so many plots are made therefore plots are identified by its dimension, surroundings, boundaries and location at particular road/gali. It is further stated in the written statement that there is no need of any direction to revenue department to settle dispute because there is no dispute regarding possession and title. It is further stated that right from 1997 when defendant purchased the said plot, he is in possession and using the plot for storing the tyres. It is further stated that the area of Sangam Vihar was carved out in to plots by previous owner of the land namely Shri Rishi Dutt., Ishwar Dutt and Om Prakash.
7. Replication was not filed on behalf of the plaintiff to the written statement of defendants.Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 8 of 34
8. On completion of pleadings, following issues were framed by Ld. Predecessor of this Court vide order dated 01.04.2008:-
1. Whether the plaintiff is entitled to the decree for declaration, as prayed for? OPP
2. Whether the plaintiff is entitled to decree for perpetual injunction, as prayed for? OPP
3. Relief.
9. It is pertinent to mention here that during the course of pleadings, plaintiff died on 10.01.2011 and an application under Order 22 Rule 3 CPC was filed on behalf of plaintiff for impleading the legal heirs of the plaintiff on record and the following issues were framed on the said application by Ld. Predecessor of the Court vide order dated 10.06.2011:-
1. Whether the Will dated 22.12.2000 confers any right/title or interest on the applicants? OPA
2. Relief.
Thereafter, the matter was fixed for recording of applicant's evidence.
10. Sh. Munish Chander was examined as AW-1 who tendered his evidence by way of affidavit Ex.AW1/A and relied upon document i.e. (Ex.AW1/1) Will.
AW-1 was cross examined at length by Ld. Counsel for the defendant and discharged.
11. Thereafter, applicant's evidence was closed vide order dated 13.02.2012 upon separate statement of Ld. Counsel for the applicant recorded to this effect and the matter was fixed for respondent's evidence.
Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 9 of 3412. Sh. Jagdish Prasad Gupta(defendant) was examined as RW-1, who tendered his evidence by way of affidavit Ex.RW-1/A. RW-1 was cross examined at length by Ld. Counsel for applicants and discharged.
Thereafter the matter was fixed for arguments on the issues which were framed on 10.06.2011. Vide Order dated 27.08.2014, application under Order 22 Rule 3 CPC was allowed.
Evidence:-
13. Thereafter the matter was listed for plaintiff's evidence. Sh. Pardeep Gupta, LR No. 1B of the deceased plaintiff was examined as PW-1 and Sh. Subhash Chand Gupta as PW-2.
PW-1& PW-2 tendered their evidence by way of affidavit Ex.PW1/A and Ex.PW2/A. PW-1 relied upon the documents i.e. (Ex.PW1/1) Will dated 22.12.2010, (Ex.PW1/2) E-Aadhar Letter, (Ex.PW1/4(Colly)) Agreement to Sell, Affidavit, GPA and SPA dated 05.06.1990, (Ex.PW1/5) Site Plan prepared by Sh. Suresh Chand, Architect/Valuer, (Ex.PW1/6) Site Plan prepared by Sh. P.P. Verma, Architect, (mark X (colly)) photocopy of complaint bearing DD No. 6A dated 12.07.2000, (mark X1) copy of complaint bearing DD No. 16A, (mark X2) copy of complaint dated 17.03.2001, (mark X3) copy of report dated 17.03.2001, (mark X4) copy of Khatoni for the year 1995-96, (mark X5) copy of complaint dated 07.04.2001 and (mark X6) photographs.
PW-1 & PW-2 were cross examined at length by Ld. Counsel for the defendant and discharged.
Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 10 of 3414. The plaintiff's evidence was closed vide Order dated 04.04.2018 upon separate statement of Ld. Counsel for the plaintiff recorded to this effect and the matter was listed for defendant's evidence.
15. It is pertinent to mention here that an application was filed on behalf of plaintiff for summoning of witness from Urban Development Department, Govt of NCT of Delhi, which was allowed on 07.09.2018 and summoned witness Sh. D.C. Sharma, Assistant Section Officer, UC Cell, Urban Development Department, GNCTD, Delhi was examined as PW-3, who brought the summoned record i.e. file No. 340/UC/UD/2010 relating to Sangam Vihar, Waziarabad Colony, Delhi and exhibited documents i.e. (EX.PW3/1) Copy of location plan submitted by RWA, Sangam Vihar, (Ex.PW3/2) Copy of letter dated 23.12.2013 by which the RWA was required to submit the required documents, (Mark A(colly)) list of the plot holders of Sangam Vihar submitted by RWA.
Thereafter the plaintiff's rebuttal evidence was closed vide Order dated 13.09.2018 upon separate statement of Ld. Counsel for the plaintiff recorded to this effect.
16. In defendant's evidence, defendant examined himself as DW-1, Sh. Riyazuddin as DW-2 and Sh. Hakim Saifi as DW-3 who tendered their evidence by way of affidavits Ex.DW1/A, Ex.DW2/A & Ex.DW3/A. DW-1 relied upon the documents i.e. (Ex.DW1/1)(OSR) Photocopy of GPA, Agreement to sell, Affidavit, Will and Receipt all dated 04.08.1999 regarding the purchase of land of 100 square yards, photocopy of GPA, Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 11 of 34 Agreement to Sell, Will of Sh. Ram Singh, Will of Sh. Jahgir Ahmed, Will of Sh. Ramesh, Will of sh. Rama Nand and Will of Sh. Vijay Pal all dated 17.04.1997 regarding the purchase of another plot measuring 1600 square yards, (Ex.DW1/2)(OSR) photocopy of certified copy of Order dated 28.02.2005 passed by SDM, (Ex.DW1/3)(OSR) Photocopy of Combined Site Plan of Plot 1700 square yards with dimensions 66 ½ X230ft, (Ex.DW1/4(colly)) Kalandara dated 12.07.2000, (Ex.DW1/5) copy of Kalandara dated 13.07.2011(this document is not available on record but the same is mentioned in the affidavit in evidence), (Ex.DW1/6)(OSR) copy of certified copy of cross examination of plaintiff Sh. Vinod Kumar Gupta dated 16.03.2004, (Ex.DW1/7)(OSR) Certified copy of Sale Deed of Sh. Vivek Arora.(all the documents are objected to as to mode of proof by Ld. Counsel for the plaintiff).
DW-1, DW-2 & DW-3 were cross examined at length by Ld. Counsel for the plaintiff and discharged.
The defendant's evidence was closed vide order dated 14.08.2018 upon separate statement of defendant recorded to this effect and the matter was fixed for final arguments.
17. Final Arguments were heard at length and the record is carefully perused by this court.
After giving my thoughtful consideration to the pleadings of the parties, the entire evidence available on record and after hearing the submissions of both the sides, my issue wise finding in the present matter is as follows:
Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 12 of 34Issue no. 1. Whether the plaintiff is entitled to the decree for declaration, as prayed for?OPP
18. Plaintiff has filed the present suit with the averments that he is the absolute, sole and lawful owner of the plot of land of 500 square yards out of Khasra No.27/21, situated in the village of Jhasoda Majra, Burari, Dlehi, known as Sangam Vihar which was purchased by the Plaintiff on 05.06.1990 on the basis of Agreement to Sell, General Power of Attorney, Special Power of Attorney executed by Shri Om Prakash, Sh. Rishi Dutt, Shri Ishwar Dutt, Sh. Surinder Kumar and Sh. Rajinder Kumar. These documents were relied on by PW-1 in his examination in chief and the same are marked as PW1/4 (colly). Plaintiff has prayed that he be declared the owner of the plot in question i.e., the suit property on the basis of documents Ex.PW1/4. Accordingly, at the very anvil, this calls for a legal discussion as to validity and operation of these documents. In Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana & Anr. 183 (2011) DLT 1 (SC), it was held:
"We 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 immoveable 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."Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 13 of 34
19. In clear terms, it has been ruled by Hon'ble Supreme court that documents, other than a duly registered conveyance deed executed as per law, do not create any interest in any immovable property. It has also been directed that courts shall not treat SA/GPA/WILL transfers as concluded transfers. In the present set of facts, plaintiff has relied upon GPA, SPA, Agreement to sell, Affidavit. It is also pertinent to note that none of them is registered. Therefore, plain reading of the excerpt from the judgment referred above conveys that plaintiff cannot claim title of ownership on the basis of these documents.
20. Another question that arises for consideration is if the judgment in Suraj Lamp (supra) applies to such documents executed prior to 2011 i.e., passing of the judgment or not. Certain paras of the judgment are reproduced for this purpose:
"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 kind of a Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 14 of 34 recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions 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. It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.
18. We have merely drawn attention to and reiterated the well settled legal position that SA/GPA/WILL transactions are not `transfers' or `sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale.
Nothing prevents affected parties from getting Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 15 of 34 registered Deeds of Conveyance to complete their title. The said `SA/GPA/ WILL transactions' may also be used to obtain specific performance or to defend possession under section 53A of TP Act. If they are entered before this day, they maybe relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to `SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 16 of 34 execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding `SA/GPA/WILL transactions are not intended to apply to such bonafide/genuine transactions."
21. Certain portions of the above excerpt have been underlined to answer the question whether the judgment in Suraj Lamp (supra) applies to such documents executed prior to 2011. It is very evident from these portions that Hon'ble Court only reiterated settled law and expressly carved out exceptions in which cases the GPA sale documents would not be affected and would continue to confer certain rights in contrast to others. The exceptions derived are:
a. Regularization of leases/allotment by DDA. b. If documents have already been acted upon by DDA or municipal authorities to effect mutation. c. Genuine transactions involving sale agreements and power of attorneys which are also regulated by State laws.
22. The present case of plaintiff is not covered by the first two exceptions mentioned above. For the third exception, it is deemed fit to Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 17 of 34 advert to relevant extracts from the judgment referred above throwing light on nature of each document executed in a GPA sale. Concerning the Power of Attorney and Agreement to sell, it was categorically held:
"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 granter authorizes the grantee to do the acts specified therein, on behalf of granter, which when executed will be binding on the granter as if done by him...". Further that "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."
"Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP 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 TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable property can be made only by a Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 18 of 34 registered instrument and an agreement of sale does not create any interest or charge on its subject matter."
23. Reading of the above paras of the judgment clears the air that a power of attorney, even if the same is irrevocable or, an agreement to sell cannot confer title on any person. At most, there can be a suit for specific performance on the basis of agreement to sell and also protection of possession under Section 53A of TPA,1882. An attorney holder can execute sale deed on behalf of principal but is not himself the owner on the strength of the power of attorney.
24. It would also be apposite to note the regulations in force in National Capital Territory of Delhi. After judgment in Suraj Lamp (supra), in 2012, a circular dated 27.04.2012 was issued by Govt. of NCT of Delhi which directed Sub registrars to not to register any conveyance relating immovable property on the basis of GPA, a Will, and agreement to sell. However, the same was set aside by Hon'ble High Court of Delhi in Pace Developers and Promoters Pvt Ltd. V. Govt. of NCT through its secretary W.P. (C) 4585/2012 while quoting Para 27 of the Judgment passed in Suraj Lamp (supra) which relates to the exceptions as stated above. Pursuant to the order of Hon'ble High Court of Delhi, another Circular F.No.1(92)/Regn.Br./Div.com/HQ/2013/815 dated 22.07.2013 which is still in force. Operative part of the same read as:
With reference to the judgment of the Hon'ble Supreme Court of India in SLP (C) No.13917 of Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 19 of 34 2009 titled Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana & Anr. and subsequent order dated 30.04.2013 of the Hon'ble Delhi High Court in the matter of Pace Developers and Promoters Pvt. Ltd. v. Govt. of NCT, WPC 4585/2012, and, in suppression of all earlier orders in the context, it is clarified as under:
1. There is nothing in the existing provisions of the law that prevents a registered property owner holding registered and valid deed of transfer like sale deed, gift deed, partition deed, relinquishment/release deed etc. from executing general power of attorney/special power of attorney in favour of their spouse, son, daughter, brother, sister or any other relative or person of his trust to manage his property or empowering him/them to execute any further deed of transfer including conveyance, sale, gift deed etc. on behalf of the registered owner.
2. However, immovable property can be legally and lawfully transferred only by a registered sale deed like sale, gift conveyance etc. Transaction i.e. execution of general power of attorney/special power of attorney/WILL etc., in respect of immovable property, do not convey any title, and, thus, are not legally recognized valid modes of Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 20 of 34 transfer of immovable property as per the existing provisions of the law.
3. A lease can be validly transferred only under a registered Assignment of Lease.
25. Hence, the position remained the same that such documents cannot themselves convey or transfer ownership however, a power of attorney can be validly executed to genuinely empower another to execute sale agreements on behalf of principal or an agreement to sell can be executed as a precursor to a complete sale deed.
26. At this juncture, another dimension may also be considered. In Hardip Kaur v. Kailash 193(2012) DELHI LAW TIMES 16, Hon'ble High Court of Delhi had imparted higher pedestal to an Agreement to sell in case the same has been executed along with General Power of Attorney and other connected documents accompanied with payment of consideration. In the said judgment, it was held:
"The agreement to sell of itself may not create any interest in the property under Section 54 of the Transfer of Property Act, 1882 but the agreement along with the payment of the entire sale consideration, handing over of the possession, execution of the receipt, affidavit, will, indemnity bond and irrevocable General Power of Attorney create "an interest in the property" within the meaning of Section 202 of Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 21 of 34 the Contract Act."
27. It is notable that Section 202 of the Indian Contract Act, 1872 bars termination of agency to the prejudice of agent in case an interest has been created in favour of the agent unless there is an express contract to the contrary. However, in the above referred judgment, it was also held:
"The purchaser would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the plaintiff. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof."
28. This judgment also does not deviate from the settled position of law qua requisite documents for ownership and merely refers to better rights and entitlement to the possession in certain cases.
29. By and large, by now it is intelligible that the documents relied upon by the plaintiff have per se no legal force for the purpose of ownership. It would not be out of place to mention that a court is bound by settled principles of law and also to apply any law in the backdrop of its Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 22 of 34 object and purpose. The ill effects of the GPA sales have been categorically laid down in the beacon judgment of Suraj Lamp (supra). The courts are no more oblivious to the fact that such practices intend to evade taxes, stamp duty and registration fee thereby causing revenue loss to the state. Moreover, these transactions encourage circulation of black money and corruption. It would be travesty of justice to let someone take benefit of something which is against the law and causes loss to the state. A person cannot be allowed to mislead a court of law and claim ownership rights in the garb of incomplete transactions. Hence, the case of the plaintiff in the pleadings itself fails purely on the parameters of law.
30. Nonetheless, I may also point out the factual and evidentiary aspect in brief. Plaintiff has alleged that in the year 1994, the boundaries of his plot had changed and the road of 15' which was earlier on the West side of the plot of the plaintiff was shifted to the East side of the plot of the plaintiff. That on 09.07.2000, the boundary wall of the suit property was demolished by Sh. Kuldeep S/o Raje on the pretext that the suit property falls in Khasra No.27/20. That a complaint was lodged by the plaintiff with SHO P.S. Timarpur on 12.07.2000 and a Kalandra No.DD 6A/16A being No.82/2000 was filed in the Court of SEM North. The Ld. SEM had passed orders for demarcation of land and for ascertainment of Khasra numbers to resolve the dispute of Khasras. That on 17.03.2001, the officials of the revenue department visited the site for revenue demarcation. That a report of demarcation was made and the fact that land in dispute formed part of Khasra no.27/21 and not Khasra 27/20 was recorded by the police in their DD No.46-B dated 17.03.2001. That on 20.03.2001, the defendant, his son and some other persons intruded on the land plot of plaintiff and started Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 23 of 34 quarreling and attacked the construction labour and the brother of the plaintiff i.e., Sh. Subhash Gupta, who has been examined as PW-2. That defendant had made a complaint on 04.04.2001to P.S. Timarpur on which a Kalandra was prepared.
31. Per contra, it is the case of the defendant that he is the owner and in possession of a plot of 1700 square yards in Gali No.5, Sangam Vihar since 1997. That he has constructed boundary wall and one room over the said plot and since then he has been in possession of the same since then and has been using the same for storage of old tyres. That on 20.03.2001 when plaintiff interfered in the peaceful possession of defendant on the said plot, a Kalandra on 13.07.2001 u/S 145 of Cr.P.C. was forwarded by SHO Timarpur regarding the dispute over possession of plot measuring 1700 sq. yards. A case was registered as case No.30/SDM/CL/2001 u/S145 Cr.P.C. before the court of SDM and the matter was finally disposed off vide order dated 28.02.2005. That defendant is the rightful and lawful owner of the plot in question as he has purchased the same from its real owner in 1997-
99.
32. Plaintiff has filed on record two site plans Ex. PW1/5 i.e., the site plan of the suit property at the time of the purchase of the same up until 1994, when the plaintiff alleges that road of 15' which was earlier on the West side of the plot of the plaintiff was shifted to the East side of the plot of the plaintiff and another site plan Ex.PW1/6 which shows the changed position after 1994, as alleged, when road of 15' wide was shifted to the east side of the plot of the plaintiff. As per site plan Ex.PW1/5, plaintiff has shown other's property on the East side of the suit property, a 15'0" wide Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 24 of 34 Gali on the West side of the suit property, other's property on the North Side of his plot and a 25'0" wide Gali on the South side of the suit property. Whereas in site plan Ex.PW1/6 reflects other's property on the West side of the suit property, a 15'0" wide Gali on the East side of the suit property, other's property on the North Side of his plot and a 25'0" wide Gali on the South side of the suit property. PW-2 has deposed in his affidavit of evidence Ex.PW2/A that one Rani Public School is located on the eastern side of plaintiff's plot after the land left for Gali i.e., before the shifting of the suit property in the year 1994. The said averments of PW-2 are not supported by site plan Ex.PW1/5. In the site plans relied on by plaintiff, plaintiff has not reflected the name of the owners of the property but has simply shown the same as other's property, though PW-2 has admitted in his cross-examination that the plot of one Sh. Vivek Arora is adjacent to the plot of the plaintiff but that he is not sure of the side of the plot of Sh. Vivek Arora from the plot of the plaintiff. The controversy between the parties is narrowed down only when the defense evidence is taken into consideration. Defendant has relied on a site plan Ex. DW1/3, which the defendant claims to be the combined site plan of Plot no.1700 sq. yards. As per defendant's version as reflected in the site plan Ex.DW1/3, defendant is claiming ownership of a plot of 1700 sq. yards with the following dimensions:
East: 15 feet wide road West: House of Sh. Nasim, Sh. Gyashuddin, Sh. Dwarka Prasad and others North: 25 feet wide road (marked on the site plan from point 'A' to point 'B') South: 25 feet wide road Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 25 of 34 In the site plan Ex.DW1/3, plot of plaintiff i.e., Sh. Vinod Kumar Gupta (marked on the site plan from point 'C' to point 'D') is shown to the East of the plot of the defendant after leaving a Gali of 15'0".
33. PW-2, who is the brother of the deceased defendant and who was also on spot on 20.03.2001 when defendants and his associates had demolished the boundary wall of the property of the plaintiff, was shown the site plan of the defendant and the witness was cross-examined on the site plan which was Ex.PW1/D. PW-2 denied the correctness of the site plan of the defendant and had deposed that a portion of 500 sq. yards plot is shown by words B1 to B belonged to the plaintiff. In other words, plaintiff is claiming ownership of a plot of land measuring 500 square yards from the south of the plot measuring 1700 sq. yards, of which the defendant claims ownership. While accordingly to the defendant his plot of land measuring 1700 sq. yards falls in Khasra no.27/20 whereas according to the plaintiff his plot of land measuring 500 sq. yards falls in Khasra No.27/21.
34. Plaintiff has primarily relied on a demarcation report dated 17.03.2001 in support of his contention that the plot of land of which he is claiming ownership falls in Khasra No.27/21. Plaintiff has summoned Sh. Kuldeep S/o Raje as PW-2, who was a summoned witness and had filed on record the certified copy of the demarcation report dated 17.03.2001 and the same was Ex.PW3/A (During the course of trial of the present suit, PW-3 had filed an application under Section 151 of CPC for return of the original of the demarcation report in question as the same was required to Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 26 of 34 filed in another case; the said application was allowed by my Ld. Predecessor vide order dated 22.11.2019 and now the certified copy of the certified copy of demarcation report is available on record). The Demarcation Report Ex.PW3/A has not been proved in accordance with law inasmuch as author of the report has not been examined by the plaintiff to prove the demarcation report. It is also pertinent to mention here that there is no site plan annexed with this demarcation report dated 17.03.2001. Even if the demarcation report in question is prima facie taken to be true, plaintiff has not even mentioned whether the demarcation report pertains to plot as originally purchased by the plaintiff in the year 1990, as shown in site plan Ex.PW-1/5 or if the same pertains to the plot of land as reflected in site plan Ex.PW1/6, which according to plaintiff reflects the changed position after 1994. Thus, plaintiff has failed to prove the demarcation report Ex.PW3/A and the same cannot be relied on for the purpose of determination of rights of plaintiff with respect to suit property.
35. PW-2 has admitted in his cross-examination that he has no documentary proof in his possession that to show that in the year 1994, the passage from the back side of the suit property was changed in the front side. Plaintiff has examined Mohd. Ateek Batla, who is resident of Gali No.5, Block Sangam Vihar, Village Jharoda Majra, Burari, Delhi as PW-4. PW-4 has deposed in his cross examination that there is no change of any passage, gali or road in Khasra no.27/21 or 27/20 since 1991 till date. Similarly, defendant has examined DW-3 as defense witness. DW-3 is a resident of House No.749, Gali No.5, Block Sangam Vihar, Village Jharoda Majra, Burari, Delhi, who has deposed in his affidavit of evidence Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 27 of 34 Ex.DW3/A that in the year 2000, there was a dispute of plaintiff and one Kuldeep on the plot of plaintiff in front of his house. The witness has further deposed in his affidavit of evidence that the locations of the properties of plaintiff and defendant and other properties falling in Gali no.5, Sangam Vihar, Wazirabad, Delhi never changed at any point of time. Thus, none of the residents of locality have supported the averments of the plaintiff that there was a change of boundaries of plot of plaintiff in the year 1994. Furthermore, any change in the dimension of the property of the plaintiff has to be duly reflected in the revenue records, however, plaintiff has failed to produce any entry made in the revenue records in support of his submissions that in the year 1994, the boundaries of his plot had changed and the road of 15' which was earlier on the West side of the plot of the plaintiff was shifted to the East side of the plot of the plaintiff. Thus, plaintiff has failed to prove that the dimensions of his plot measuring 500 sq. yards was changed in the year 1994 and the Gali of 15'0" which was earlier of the Western side of the plot of the plaintiff was shifted to the Eastern side of the plot of the plaintiff.
36. In view of the testimony of the PWs, documents on record, the pleadings of the parties and examining the case of the plaintiff on the basis of preponderance of probabilities, it is established that the plaintiff failed to prove the case and discharge the onus. This court does not find any merit or substance in the suit of the plaintiff. Plaintiff has categorically failed to prove the demarcation report Ex.PW3/A. Plaintiff has further failed to prove his averment that the dimensions of his plot had changed in the year 1994 and the Gali of 15'0" which was earlier of the Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 28 of 34 Western side of the plot of the plaintiff was shifted to the Eastern side of the plot of the plaintiff. In fact, the site plans Ex.PW1/5 and PW1/6 filed by plaintiff are vague and does not reflect with certainty the identity of the suit property. Furthermore, cannot claim to be the owner of a piece of land on the basis of SPA/GPA and Affidavit.
37. Another point that warrants observation is that PW-2 has admitted in his cross examination that he is not aware as to who is in possession of the portion mark A to B of site plan Ex.PW1/D whereas PW-2 has claimed that plaintiff is the owner of area marked B1 to B, which in turn implies that suit property for which the present suit is filed by the plaintiff is not in the possession of the plaintiff. This fact is further fortified by the deposition of PW-2 in his cross examination that the portion mark A to B in Ex.PW1/D, there is a boundary wall on a 1700 sq. yards plot, however, there was a boundary wall in between up to the coverage of 500 sq. yards which was demolished. In fact, as per the averments made in the plaint as well as affidavit of evidence of PW-2, on 20.03.2001 the defendant and his son along with other associates have demolished the boundary wall of the plot of plaintiff and have forcibly put their tyres on the plot of land owned by the plaintiff. It is not the case of the case of the plaintiff that at any point of time, plaintiff had got removed the tyres of the defendant and has claimed back the plot of land which was forcibly occupied by the defendant. In fact in para 4 of the plaint, plaintiff had admitted that the boundary wall of the plot of the plaintiff is still in demolished condition and on the plot of the plaintiff the goods in the nature of tyre are lying. As has already been discussed above, plaintiff is claiming ownership of a plot of land measuring Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 29 of 34 500 square yards from the south of the plot measuring 1700 sq. yards, of which the defendant claims ownership and defendant has averred in his WS that he is in actual physical possession of the 1700 sq. yards of land situated in Gali no. 5, Sangam Vihar since 1997 over which he has raised a boundary wall and a room and the same is being used by the defendant for storing tyres. Plaintiff has not even filed a replication denying the said averments of the defendant. Therefore, it is clear from the meticulous perusal of the pleadings of the parties and testimony of PW-2 that defendant is in possession of the suit property in question. It is apparent that at the time of filing of the suit, the relief of possession in respect of the premises in occupation of defendant was very much available to the plaintiff. As the plaintiff has failed to seek relief of possession from defendant therefore, suit of plaintiff is clearly his by the proviso of Section 34 of the Specific Relief Act. I am supported in my aforesaid observation in view of the judgment in case Ram Saran and Anr. Vs. Smt. Ganga Devi reported in AIR 1972 Supreme Court 2685 wherein it was held as under:-
"Where the defendant is in possession of some of the suit properties and the plaintiff in his suit does not seek possession of those properties but merely seeks a declaration that he is the owner of the suit properties the suit is not maintainable.
In view of the aforesaid discussions, it is held that suit of plaintiff is not maintainable being barred under the proviso of 34 of the Specific Relief Act."Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 30 of 34
38. In Som Dutt v. Sharma Devi RFA no. 198/2009 dated 25.1.2012, the Hon'ble High Court of Delhi held as follows:
"The trial Court, in my opinion, has further rightly held the suit to be barred by Section 34 of the Specific Relief Act, 1963 by observing that since admittedly the appellant/plaintiff was not in possession of the property, the suit for declaration simplicitor could not be filed without claiming possession of the suit property before the appropriate Court even for such relief. This finding is given in para 30 of the impugned judgment and with which I agree, inasmuch as a person cannot simply file a suit for declaration seeking the ownership rights in the suit property without claiming actual physical possession of the suit property, which admittedly is not in possession of the appellant/plaintiff but in fact is in possession of defendant No.2/respondent No.2 under duly executed registered sale deeds.
The suit claiming injunction also was not maintainable because as per Section 41(h) of the Specific Relief Act, 1963 the plaintiff was bound to sue for the alternative efficacious Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 31 of 34 relief of possession but he did not pray for the same."
39. Though in prayer clause (ii), it has been prayed that this court may pass a decree of perpetual injunction in favour of the plaintiff and against the defendant restricting the defendant from (d) removing all articles i.e., tyres etc. from the suit property. A plain reading of the said prayer clause reflects that the same has been drafted defectively. In the literal sense of the prayer clause, plaintiff is praying for permanently restraining the defendant from removing his goods from the suit property. It is clear from the title of the suit i.e., "Suit for declaration of ownership and perpetual injunction" and from the para 9 of the plaint dealing with valuation of the suit for the purpose of court fee and jurisdiction, that the presents suit is essentially a suit for declaration and permanent injunction. If the plaintiff had intended to claim the relief of possession, it would have been mentioned in the title of the suit and in such a case plaintiff would have valued the suit for the purpose of jurisdiction and court fee in respect of the prayer of possession also. Plaintiff has prayed for omnibus reliefs under the heading of permanent injunction but the relief of possession has not been specifically claimed by the plaintiff especially in light of the fact that the defendant has alleged to have constructed boundary wall and one room over the plot of land measuring 1700 sq. yards and has been using the same for the storage of old tyres. Accordingly, the present prayer for declaration cannot be granted as the same is barred by Section 34 of Specific Relief Act, 1963.
40. In view of the foregoing discussion, the present issue is decided Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 32 of 34 against the plaintiff.
Issue no. 2: Whether the plaintiff is entitled to decree for perpetual injunction, as prayed for?OPP
41. The burden of the present issue was cast on plaintiff. Plaintiff has claimed in prayer clause (ii) that this court may pass a decree of perpetual injunction in favour of the plaintiff and against the defendant restricting the defendant from:
(a) Demolishing any portion of the suit property;
(b) From raising any construction on the suit property;
(c) From aleniating, transferring, selling or from creating any third party interest in the suit property; and
(d) to remove all articles i.e., tyres etc. from the suit property and not to enter into any type of quarrel with the plaintiff.
42. As plaintiff has failed to prove that he is the owner of the suit property and also keeping in fact that plaintiff is not in possession of suit property, present prayers cannot be granted in favour of plaintiff. The present prayer clause of injunction is not maintainable because as per Section 41 (h) of the Specific Relief Act, 1963 the plaintiff was bound to sue for the alternative efficacious relief of possession but he did not pray for the same. Reliance may be placed on the judgment in Som Dutt (Supra).
43. Accordingly, the present issue is decided against the plaintiff.
Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 33 of 34Relief:-
44. In view of the foregoing discussion and the findings on the aforesaid Issues, the present suit filed by the plaintiff is dismissed.
No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room after due completion of formalities.
Announced in the open Court (Neha Garg)
on this 21.12.2021 Civil Judge-01/Central,
Tis Hazari Courts/Delhi
Suit No.596295/2016 Vinod Kumar Gupta vs Jagdish Prasad Gupta Page 34 of 34