Delhi District Court
Smt. Urmila W/O Sh. Brijesh Giri vs (1) Smt. Kamlesh W/O Sh. Gauri Shankar on 16 April, 2014
Sh. Gorakh Nath Pandey
Additional District Judge (NE)
Karkardooma Courts Delhi.
IN THE COURT OF SH. GORAKH NATH PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
Regular civil appeals No. 55/14 & 56/14
RCA No. 55/14
Case I.D. Number : 02402C0241882010
IN THE MATTER OF :
Smt. Urmila W/o Sh. Brijesh Giri
R/o House Khasra No. 10/24, BlockG,
Gali No. 4, West Karawal Nagar, Delhi110094
.......Appellant
VERSUS
(1) Smt. Kamlesh W/o Sh. Gauri Shankar
(2) Sh. Laxman
Both R/o G12, Gali No. 2,
Brahaspati Bazar, West Karawal Nagar,
Delhi110094
........Respondents
Date of Institution of Appeal 25.08.2010
Date of receipt in this Court 28.02.2014
Reserved for Judgment 09.04.2014
Date of Judgment/Order 16.04.2014
Decision Appeal Allowed.
RCA No. 55/14 & RCA No. 56/14 page 1 of 41
Sh. Gorakh Nath Pandey
Additional District Judge (NE)
Karkardooma Courts Delhi.
RCA No. 56/14
Case I.D. Number : 02402C0316672011
IN THE MATTER OF :
Smt. Urmila
W/o Sh. Brijesh Giri
R/o House Khasra No. 10/24, BlockG,
Gali No. 4, West Karawal Nagar,
Delhi110094
.......Appellant
VERSUS
Smt. Kamlesh
W/o Sh. Gauri Shankar
R/o G12, Gali No. 2.
Brahaspati Bazar, West Karawal Nagar,
Delhi110094.
......Respondent
Date of Institution of Appeal 17.10.2011
Date of receipt in this Court 28.02.2014
Reserved for Judgment 09.04.2014
Date of Judgment/Order 16.04.2014
Decision Appeal Allowed.
J U D G M E N T
1. By this common judgment, I shall decide the following two regular civil appeals: (I) RCA No. 55/2014 titled as Smt. Urmila Vs. Smt. Kamlesh & Ors. ( arising RCA No. 55/14 & RCA No. 56/14 page 2 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
out of Suit No. 620/07), & (II)RCA No. 56/2014 titled as Smt. Urmila Vs. Smt. Kamlesh ( arising out of Suit No. 643/08) Facts in Regular Civil Appeal No.55/2014
2. The present appeal impugns the judgment and decree dated 06.07.2010 passed by Ld. Senior Civil Judge CumRC (NE), Karkardooma Courts in suit No. 620/07 whereby the suit for declaration, permanent and mandatory injunction in respect of property bearing No. 10/24, BlockG, Gali No. 4, West Karawal Nagar, Delhi94 as shown in the site plan Ex. PW1/1 in red colour ( hereinafter called the suit property ) filed by the plaintiff/appellant has been partly decreed and held that a decree of permanent injunction is passed in favour of the plaintiff and against the defendant and the defendants are restraint from illegally and forcibly dispossessing the plaintiff from the suit property except with due process of law and the suit of the plaintiff is dismissed qua the relief of declaration and mandatory injunction.
3. The brief and relevant facts in the background of which the present suit was filed by the appellant who is the plaintiff in the original suit are as follows: (I) That the plaintiff is the owner and in possession of house/property Khasra No. 10/24, BlockG, Gali No. 4, West Karawal Nagar, Delhi94 in a measuring area 28 Sq. yards consisting one room, latrine fitted with light and hand pump and boundary wall as shown in red colour in the site plan attached with the plaint. She has been residing with her family in the said house since April, 2005 RCA No. 55/14 & RCA No. 56/14 page 3 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
when it was purchased from Sh. Lakhmi Giri and electricity connection in the suit property is in the name of Sh. Lakhmi Giri. The plaintiff was in need of money and she requested defendants No. 1 to give the loan of Rs. 40,000/ on which she agreed with the condition to mortgage/keep her documents of her house with her and the plaintiff took the loan of Rs. 40,000/ @ 2 % from defendant No. 1 in themonth of March, 2006. It has been stated that the defendant No. 1 and defendant No. 2 who is Dewar of defendant No. 1 and with one Vinod took the plaintiff to Seelampur Court and there the defendants prepared some documents and put the photographs of the plaintiff thereon and told the plaintiff that the documents are of giving the loan and no copy of the same was given to the plaintiff nor the contents of the same were read over to the plaintiff while the plaintiff is an illiterate lady and does not read and write. It has been stated that the plaintiff is continuously residing in the suit property and she was paying the interest on Rs. 40,000/ to the defendant No. 1 every month and she returned the said amount of Rs. 40,000/ to defendant No. 1 in September, 2007 and when she demanded back her documents of the property from defendant No. 1 then she stated that her husband Gauri Shankar has gone out of station for job and the documents are with him and as soon as he would come back, she would return the documents of the property. In October, 2007, defendant No.1 told the plaintiff that she would not return the documents to the plaintiff and threatened her to run away out of Delhi along with her family otherwise they would murder her and her family and would forcibly occupy the house of the RCA No. 55/14 & RCA No. 56/14 page 4 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
plaintiff by throwing her goods outside the house. Defendants further threatened the plaintiff that they have links with the police and they have given false complaints against her and they would get her involved in false case. It has been submitted that defendants brought some persons in police uniform and some gunda associates terrorized the children of the plaintiff saying to vacate the house or they would put behind the bar and wold forcibly occupy the house dispossessing the plaintiff. The plaintiff lodged the complaint against the defendants duly received on 1415/16.11.2007 in the office of Commissioner of Police, ITO, DCP Vigilance, New Delhi, DCP North East Seelampur, Delhi and SHO PS Karawal Nagar, Delhi respectively against the illegal acts of the defendants but no action was taken. On 19.11.2007 defendants came to the house of the plaintiff and threatened the plaitniff to vacate the house. The plaintiff requested the defendants that she has returned the loan and they would return their documents of property and they should not be dishonest upon which the defendant threatened they have got made the documents of purchase of property in the name of the defendant No. 1 in the garb of giving the loan and they would not return the documents. It has further been stated that the acts and threats of hte defendants are illegal and against the canon of law and in case the defendants have got fabricated/made the documents of purchase in the name of defendant NO. 1 then the same are illegal, uncalled for an null and void as the plaintiff never sold the suit property to the defendants and she has been cheated by the defendants by playing fraud as the plaintiff is an illiterate lady. The plaintiff RCA No. 55/14 & RCA No. 56/14 page 5 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
has returned the loan of Rs. 40,000/ on 23.09.2007 with one month interest of Rs. 800/ and prior to that was paying interest regularly. It has further been submitted that defendants have got no right to dispossess the plaintiff from the suit property. Finding no other alternative, the plaintiff filed the present suit. (II) The defendants have filed the WS raising the preliminary objections that the suit of the plaintiff is not maintainable as plaintiff has no locus standi after having sold the same to defendant No. 1. The plaintiff was granted permissible possession of the suit property for a limited period after she executed the title documents in favour of the defendant no. 1. The plaintiff has manipulated the facts to avoid handing over the vacate and peaceful possession of the suit property to defendant No. 1 who is bonafide purchaser of the same. The plaintiff has failed to vacate the premises even after the repeated requests of defendant No. 1 as she required the premises for the marriage of her daughter. The plaintiff lodged a false complaint with the police on 14.11.2007. On merits, the contents of the plaint have been denied and it has been stated that defendant No. 1 is a bonafide purchaser of the suit property for a valuable consideration and the plaintiff herself had executed the valid title documents in her favour. It has been denied that the plaintiff has asked for a loan of Rs. 40,000/ and the defendant had asked her to mortgage her property or that her thumb impression were obtained on the paper without disclosing the contents to her. It has also been stated that the plaintiff has become a trespasser and she is liable to be evicted.
RCA No. 55/14 & RCA No. 56/14 page 6 of 41
Sh. Gorakh Nath Pandey
Additional District Judge (NE)
Karkardooma Courts Delhi.
4. The plaintiff filed replication denying the contents of the WS and has reiterated the facts stated in the plaint.
5. Vide order dated 07.04.2008, following issues were framed by Ld. Trial Court:
(i) Whether the plaintiff had mortgaged the suit property in favour of defendant No. 1 ? OPP
(ii) Whether the plaintiff is entitled for a decree of declaration as prayed for ? OPP
(iii) Whether the plaintiff is entitled for a decree of permanent injunction as prayed for ? OPP
(iv) Whether the plaintiff is entitled for a decree of mandatory injunction as prayed for ? OPP
(v) Whether the plaintiff has suppressed and concealed the material facts ? OPD
(vi) Relief.
Facts in Regular Civil Appeal No. 56/2014
6. The present appeal impugns the judgment and decree dated 17.08.2011 passed by Ld. Senior Civil Judge CumRC (NE),Karkardooma Courts in suit No. 643/08 whereby the suit for possession, damages/mesne profits and permanent injunction in respect of property bearing No. 10/24, BlockG, Gali No. 4, West Karawal Nagar, Delhi94 as shown in the site plan Ex. PW1/1 in red colour ( hereinafter called the suit property ) filed by the plaintiff/respondent has RCA No. 55/14 & RCA No. 56/14 page 7 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
been decreed and a decree for possession was passed in favour of the plaintiffs and against the defendants regarding the suit property. The plaintiff was also entitled to recover Rs. 62,000/ from the defendants as damages/mesne profits along with pendente lite and future damages/mesne profits @ Rs. 2,000/ PM as well as decree of perpetual injunction is passed in favour of the plaintiff and against the defendants restraining from selling, alienating or creating any third party interest in respect of the suit property.
7. The brief and relevant facts in the background of which the present suit was filed by the appellant who is the plaintiff in the original suit are as follows: (I) That the plaintiff is the landlady and owner of the property bearing Khasra No. 10/24, BlockG, Gali No. 4, West Karawal Nagar, Delhi110094 (hereinafter referred to as suit property). On 23.03.2006, the plaintiff had purchased the suit property from the defendant for a sum of Rs. 35,000/ and the documents i.e. GPA, Agreement to Sell, receipt and payment were duly executed in favour of the plaintiff and all the relevant documents of the previous owners were duly handed over by the defendant to the plaintiff. The defendant ceased to be the owner of the suit property after selling the same to the plaintiff. However, on the request of the defendant, plaintiff permitted her to stay in the suit property for a few days but subsequently, under ill designs and ulterior motives, the defendant illegally retained the possession of the suit property. The suit property was consisting of one room and the plaintiff had constructed latrine fitted with light, hand pump and a septic tank and got filled pot holes/chowk up to three feet and RCA No. 55/14 & RCA No. 56/14 page 8 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
also constructed the frontal boundary wall and installed a main gate out of her own funds after the same was purchased by her. The daughter of the plaintiff is of marriageable age and therefore, after a few days of sale, the plaintiff asked the defendant several times to vacate the suit property peacefully but she made lame excuse to vacate the same and rather filed a civil suit for declaration, permanent and mandatory injunction against the plaintiff and her brotherinlaw namely Sh. Laxman Giri. It has been submitted that the defendant is liable to pay the damages/mesne profits for illegal and unauthorized possession of the suit property which can fetch Rs. 2,000/ p.m. as rent from the suit property and the plaintiff is entitled to damages/mesne profits w.e.f. 23.03.2006 onwards and also future damages from the date of filing of the suit till the delivery of possession. Finding no other alternative, the plaintiff has filed the present suit. (II) Defendant has contested the suit by filing the written statement raising preliminary objections that the suit of the plaintiff is based on false, forged and fabricated acts and on the basis of fraudulent acts of the plaintiff. The same is inherently defective and cannot be cured; the suit of the plaintiff is not maintainable in the present form and is not signed, verified according to law and is not supported with affidavit; the suit of the plaintiff is without any cause of action; plaintiff has not come to the court with clean hands and the suit has not been properly valued by the plaintiff.
On merits, the contents of the plaint have been denied. The defendant has denied that the plaintiff purchased the suit property as alleged by her. It was RCA No. 55/14 & RCA No. 56/14 page 9 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
submitted that she was having good relations with the plaintiff and she was in need of Rs. 40,000/ and she requested the plaintiff to give a loan of Rs. 40,000/ upon which she agreed with the condition to mortgage/keep the documents of her house and also put her thumb impression on the documents of taking of loan by putting her photographs and the defendant took a loan of the abovesaid amount from the plaintiff in March 2006 about one week after Holi i.e. 23.03.2006. The plaintiff along with her Dewar Laxman and with one Vinod took the defendant to the Seelampur Court and there the plaintiff and her Dewar got prepared some documents from their advocate and put hte photograph of the defendant thereon and told the defendant that the documents are of giving the loan and no copy of the same was given to the defendant nor she was read over the contents of the same and taking the advantage of her illiteracy, got her thumb impression on several typed and blank papers and also took her all previous original documents of the suit property in her possession by giving the loan of Rs. 40,000/ @ 2 % interest. The defendant has been continuously residing, living in the suit property and she was paying the abovesaid interest every month to the plaintiff and she returned Rs. 40,000/ to the plaintiff in the month of September, 2007 along with interest and demanded back her documents from the plaintiff. Plaintiff told that her husband Gauri Shankar has gone out of station for job and the documents are with him, as soon as he would come back, she would return the documents of the suit property to the defendant and would tear the documents of loan. The defendant demanded and RCA No. 55/14 & RCA No. 56/14 page 10 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
requested the plaintiff to return her documents but she avoided but in the month of October, 2007 she started threatening that she would not return the documents of her house and she has got made the documents in her name of purchasing the suit property from the defendant fraudulently and the plaintiff and her Dewar Laxman threatened the defendant several times for dire consequences and asked the defendant to vacate the suit property. Not only this, they also came with one police personnel at the house of the defendant who took the defendant to police station and made enquiry. The thumb impression of the defendant were obtained on some blank papers and she was sent back saying that there is nothing in the complaint. The defendant lodged the complaint against the plaintiff on 14/15/16.11.2007 in the office of Commissioner of Police, ITO, New Delhi, DCP (Vigilance), New Delhi, DCP (North East), Seelampur and SHO of PS Karawal Nagar, Delhi against the plaintiff and her associates. In the morning of 19.11.2007, the plaintiff with her Dewar again came to the house of the defendant and threatened her for dire consequences. It has been submitted that the plaintiff has nothing to do with the suit property and she never remained in the possession of the same. The defendant denied her liability to pay damages/mesne profit or that she was in unauthorized occupation of the suit property. All other allegations made in the plaint have been denied and a prayer has been made for dismissal of the suit with costs.
RCA No. 55/14 & RCA No. 56/14 page 11 of 41
Sh. Gorakh Nath Pandey
Additional District Judge (NE)
Karkardooma Courts Delhi.
8. The plaintiff filed replication denying the contents of the WS in so far as they were contrary to the plaint. The contents of plaint were reiterated and reaffirmed.
9. On 15.05.2009, the Ld. Trial Court framed the following issues :
(i) Whether the plaintiff has no locus standi to file the present suit ? OPD
(ii) Whether the suit has not been properly valued for the purpose of court fees and jurisdiction ? OPP
(iii) Whether the plaintiff is entitled for a decree of possession as prayed for ? OPP
(iv) Whether the plaintiff is entitled for recovery of Rs. 62,000/ as prayed for ? OPP
(v) Whether the plaintiff is entitled for future damages, if so, at what rate and for which period ? OPP
(vi) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ? OPP
(vii) Relief.
Consolidation of both appeals
10. The appellants have preferred the instant appeals on the ground that the impugned judgment and decree dated 06.07.2010 and 17.08.2011 are not sustainable in law and facts and is passed without application of judicial mind. It is further contended that the impugned judgment and decree is not passed on the basis of the admitted and proved facts and the judgment suffers from RCA No. 55/14 & RCA No. 56/14 page 12 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
illegality and infirmity. As mentioned the Ld. Trial Court failed to appreciate the correct facts that the appellant never sold the suit property to the respondent No. 1 and is in continuous possession as owner; the possession was never handed over to the respondent. The appellant further mentioned that the suit property was never sold and the respondent never became the owner of the suit property, the suit for injunction filed by the respondent was not maintainable; the respondent has no locus standi to file the suit. The Ld. Trial Court failed to appreciate the facts in property perspective and reached to wrong conclusion; the Ld. Trial Judge has not applied his mind and disposed off the suits without following due process of law and considering the relevant aspects. These appeals are filed praying to set aside the impugned judgment and decree.
11. The respondents did not wish to file reply to the appeals.
12. I have heard the Ld. Counsel for the appellant and respondent.
13. Having drawn my attention to the pleadings of the parties, testimony of the witnesses and materials on record, it is submitted by Ld. Counsel for the appellant that the appellant never sold the suit property to the respondent and the documents relied by the respondent No. 1 in support of his owner ship have no value in the eyes of law. It is further argued that the appellant is the owner of the suit property, the impugned judgment and decree is not sustainable in law being passed without application of judicial mind and prayed to allow the appeal.
14. The Ld. Counsel for the respondent on the other hand supported the impugned judgment and decree and argued that the appeals filed by the RCA No. 55/14 & RCA No. 56/14 page 13 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
appellant is not maintainable and is filed only to delay the legal proceedings. The Ld. Counsel for the respondent prayed to dismiss the appeals with heavy cost.
15. I have given my thoughtful considerations to the submissions made on behalf of the parties and gone through the trial court records. Before rendering findings in each appeal, I shall analyze the evidence of the parties led by them before the Ld. Trial Court along with legal provisions together.
16. Both suits pertained to the same property bearing Khasra No. 10/24, BlockG, Gali No. 4, West Karawal Nagar, Delhi94 ( hereinafter called the suit property). As mentioned the appellant has filed the suit bearing No. 620/2007 seeking declaration, permanent and mandatory injunction. The suit of the appellant qua the relief of injunction and mandatory injunction was dismissed and decree of permanent injunction was passed restraining the defendant/respondent from illegally and forcibly dispossessing the appellant from the suit property. The respondent have filed the suit bearing No. 643/2008 against the appellant seeking possession, damages/mesne profits and permanent injunction which was allowed and decree of possession, damages/mesne profits and decree of permanent injunction restraining the appellant from selling, alienating or transferring the suit property was passed against the appellant and in favour of the respondent. Hence these appeals.
17. There is no dispute between the parties that appellant Smt. Urmila was the owner of the suit property. The respondent claimed to have purchased the suit property from the appellant and the respondent granted permissive RCA No. 55/14 & RCA No. 56/14 page 14 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
possession for a limited period. The respondent further claimed that appellant executed the title documents in her favour and failed to vacate and hand over possession to her. The respondent further denied the factum of grant of any loan by her to the appellant contending that the amount was paid towards consideration of the suit property and the appellant have handed over the original documents of the property to her. The appellant denied having sold the suit property to the respondent contending the documents were executed by her on the pretext of loan documents; she has repaid the loan to the respondent and the respondent has not returned her original documents. The appellant prayed to declare the documents as null and void and direct the respondent to return her original documents.
18. The evidence of the parties led before Ld. Trial Court was somehow on the similar lines as contended in the plaint. It appears that the main issue before the Ld. Trial Court to be adjudicated remained as to whether the respondent has become the owner of the suit property ? The Ld. Trial Judge has reached to the conclusion that the appellant has failed to prove that she has mortgaged the suit property in favour of the respondent No. 1 and dismissed her suit qua the relief of declaration and mandatory injunction ( i.e. issue No. 2 and 4 in suit No. 620/07). As regards suit No. 643/08, the Ld. Trial Court reached to the conclusion that the respondent has purchased the suit property from the appellant on the basis of titled documents i.e. GPA Ex. PW1/B, Agreement to Sell Ex. PW1/C, Payment receipts Ex. PW1/D and Will Ex. PW1/B1 and passed RCA No. 55/14 & RCA No. 56/14 page 15 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
decree of possession, damages/mesne profits and permanent injunction against the appellant and in favour of the respondent No. 1.
19. In the background of these facts and finding of Ld. Trial Court, the question is to be examined as to whether respondent No. 1 can be considered as owner of the suit property by virtue the documents Ex. PW1/B, Ex. PW1/C, Ex. PW1/D and Ex. PW1/B1 and whether the appellant sold the suit property to the respondent ? As the issues framed in both the suits i.e. regarding the entitlement of the relief and declaration of documents as null and void are interconnected and dependent upon the answer of this question, these issues are examined together. This issue appears mainly issue of law.
20. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for partition, this suit is to be decided on the basis of preponderance of probabilities. As held in Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, "A civil case is decided on balance of probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings RCA No. 55/14 & RCA No. 56/14 page 16 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit "
preponderance of probability" would serve the purpose for obtaining a decree".
21. Section 101 of the Evidence Act, 1872 defines " burden of proof" and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
RCA No. 55/14 & RCA No. 56/14 page 17 of 41
Sh. Gorakh Nath Pandey
Additional District Judge (NE)
Karkardooma Courts Delhi.
22. The respondent No. 1 claimed to have purchased the suit property and derived her title through the appellant though the appellant has denied any such sell transaction and prayed to declare the documents executed by the her as null and void and direct the respondent No. 1 to return her original documents. The ownership of the appellant is admitted by the respondent No. 1 who claims title through her. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn. In view of this legal position of the Evidence Act, it is clear that it is for the respondent No. 1 to prove that she is owner of the property having purchased the same from the appellant though the onus to prove the issue i.e. whether the plaintiff had mortgaged the suit property in favour of defendant No. 1/respondent was upon appellant/plaintiff.
23. The pleadings of the parties and evidence on record reveals the following:
(a) that the suit property was initially purchased by the appellant and the title of the appellant is not disputed by the respondent at all.
(b) that the respondent No. 1 allegedly purchased the suit property from the appellant on 23.03.2006 by way of documents unregistered GPA Ex. PW1/B, Agreement to Sell Ex. PW1/C, Payment Receipt Ex. PW1/D and Will Ex. PW1/D1.
(c) that respondent No. 1 never remained in possession of the suit property nor the possession was ever handed over to the respondent No. 1; the appellant RCA No. 55/14 & RCA No. 56/14 page 18 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
is residing in the suit property since beginning.
(d) that the appellant claimed herself to be the absolute owner of the suit property contenting that she never sold the same to the respondent No. 1 and her signatures/ thumb impression was obtained by the respondents on blank stamp paper on the pretext of preparing loan documents.
(e) the respondent No. 1 has not filed any suit for specific performance against the appellant on the basis of documents Ex. PW1/B to Ex. PW1/D1.
(h) No sale deed has been executed by the appellant in favour of the respondent No. 1 and the respondent never remained in possession of the suit property.
(i) the original papers of the property of the appellant is with the respondents and the complaint was made by the appellant to the police in the year, 2007.
24. It is appropriate and relevant to note the relevant legal provisions and authorities for proper examination and adjudication of the issues.
Section 5 of the Transfer of Property Act, 1882 ( ' TP Act' for short) defines ' transfer of property' as under: " 5. Transfer of Property defined: In the following sections " transfer of property " means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself 9 for to himself) and one or more other living persons; and " to transfer property" is to perform such act." XXX XXX RCA No. 55/14 & RCA No. 56/14 page 19 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
Further Section 54 of the TP Act defines ' sales' thus :
" Sale" is a transfer of ownership in exchange for a price paid or promised or partpaid and partpromised.
Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property."
Section 53 A of the TP Act defines ' part performance ' thus :
" Part Performance. Where any person contracts RCA No. 55/14 & RCA No. 56/14 page 20 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
And the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and had done some act in furtherance of the contract.
And the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor b the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
RCA No. 55/14 & RCA No. 56/14 page 21 of 41
Sh. Gorakh Nath Pandey
Additional District Judge (NE)
Karkardooma Courts Delhi.
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
Section 17 of the Indian Registration Act, 1908: " 17. Documents of which registration is compulsory. (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866 ( 20 of 1866), or the Indian Registration Act, 1871 ( 8 of 1871), or the Indian Registration Act, 1877 ( 3 of 1877), or this Act came or comes into force, namely
(a) Instrument of gift of immovable property;
(b) other nontestamentary instruments which purport or operate to create, declare, assign, limit or extinguish , whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
25. It is settled law that title of immovable property above the value of Rs. 100/ can only be transferred by way of a registered instrument as prescribed RCA No. 55/14 & RCA No. 56/14 page 22 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
Under Section 17 of the Indian Registration Act, 1908 and by way of documents of sale as recognized under Section 54 of the Transfer of the Property Act. As held in AIR 1969, SC 1316, the documents of which registration is necessary under the transfer of Property Act ( such as under Section 54 of the TP Act) but not under the Registration Act fall within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction of acting any immovable property comprise therein and do not affect any such immovable property.
26. As held in 128 (2006) DLT 407 (DB) titled M. L. Aggarwal Vs. Oriental Bank of Commerce & Ors, : " The petitioner has only produced an agreement to sell, will and a power of attorney and a receipt for payment of money but these in our opinion do not constitute a sale. Under Section 17 (1) (b) of the Registration Act, Sale of an immovable property can only be by a registered deed. In our opinion, the petitioner has no right, title or interest in the suit property as he has not purchased it by any registered sale deed. An immovable property cannot be purchased by a mere power of attorney or agreement to sell."
The ratio was further reiterated by Hon'ble Delhi High Court in AIR 2003, Delhi 120 titled G. Ram Vs. DDA wherein it is mentioned that transfer of immovable property can only be affected by executing a registered documents. Merely making an agreement of sale or execution of power of attorney could not transfer right, title or interest of any immovable property.
RCA No. 55/14 & RCA No. 56/14 page 23 of 41
Sh. Gorakh Nath Pandey
Additional District Judge (NE)
Karkardooma Courts Delhi.
27. This court is guided in view of the judgment of Hon'ble Supreme Court in Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, reported as 183 (2011) DLT 1 (SC) in this respect as held, the documents of title relied upon by the defendant such as Ex. PW 1/ 1 to Ex. PW1/4 i.e. GPA , Agreement to Sell, Will and receipt would not confer ownership rights in respect of immovable property in his favour. Hon'ble Supreme court vide order dt. 15.05.09 reported as Suraj Lamps & Industries V/s State of Haryana, 2009(7) SCC (366) referred illaffects of GPA sells or sell agreement/ GPA/ will transfer holding that there cannot be sell by execution of power of attorney nor there can be transfer by execution on agreement to sell and power of attorney and will. It is relevant and necessary to reproduce relevant paras of judgment of Hon'ble Supreme Court in Suraj Lamps ( supra) reported as Manu/SC/1222/2011 which read as under: Scope of an Agreement of Sell:
11. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas V. S. A. Kamtam and Anr. (1977) 3 SCC 247, observed: "A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act.
See Rambaran Prasad Vs. Ram Mohit Hazra ( 1967) 1
RCA No. 55/14 & RCA No. 56/14 page 24 of 41
Sh. Gorakh Nath Pandey
Additional District Judge (NE)
Karkardooma Courts Delhi.
SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognized in Section 3 of the Specific Relief Act, contract for sale is recognized in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein."
In India the word ' transfer' is defined with reference to the word ' convey'. The word ' conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership........ ....... that only on execution of conveyance ownership passes from one party to another ..........."
In Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra (2004) (8) SCC 614, this court held: " Protection provided under Section 53 of the Act to the proposal transferee is a shield only against the transferor. It disentitles the tranferor from disturbing the possession of the proposed transferee who is put in RCA No. 55/14 & RCA No. 56/14 page 25 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party"
It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance ( sale deed). In the absence of a deed of conveyance ( duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
12. Any contract of sale( agreement to sell) which is not a registered deed of conveyance ( deed of sale) would fall short of the requirements of Section 54 and 55 of Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property ( except to the limited right granted under Section 53A of Transfer of Property Act). According to Transfer of Property Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of Transfer of Property Act enacts that sale of immovable property can be made only by a registered RCA No. 55/14 & RCA No. 56/14 page 26 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
instrument and an agreement of sale does not create any interest or charge on its subject matter.
Scope of Power of Attorney
13.A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him( see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In state of Rajasthan v. Basant Nehata MANU/SC/0547/2005 : MANU/SC/0547/2005 : 2005 (12) SCC 77 this court held :
A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the Principal in favor of the agent. The agent derives a right to use his name and all acts, deeds and things done by RCA No. 55/14 & RCA No. 56/14 page 27 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powersof Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the done to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The done in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.
An Attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of grantor. Scope of Will
14. A will is the testament of the testator. It is a RCA No. 55/14 & RCA No. 56/14 page 28 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivo. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. It is said that so long as the testator is alive, a will is not be worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. ( see Sections 69 and 70 of Indian Succession Act, 1925). Registration of a will does not make it any more effective.
We therefore reiterate that immovable property can be legally and lawfully transferred/ conveyed only by a registered deed of conveyance. Transaction of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transaction as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53A of the Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutations in RCA No. 55/14 & RCA No. 56/14 page 29 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transaction known as GPA sales.
28. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Hon'ble Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance ( para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872( para 13) and devolution of interest pursuant to a will( para
14).The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney.
Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also RCA No. 55/14 & RCA No. 56/14 page 30 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
takes place devolution of interest after the death of the testator in terms of a Will.
29. Section 63 (c) of the Succession Act 1925 requires a will to be attested. Further the same cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution. In this regard the in the case of Gopal Swaroop v. Krishna Murari Mangal reported in (2010) 14 SCC 266 the Hon'ble Supreme Court was pleased to hold as under:
"17. A careful analysis of the provisions of Section 63 would show that the proof of execution of a will would require the following aspects to be proved:
(1) That the testator has signed or affixed his mark to the will or the will has been signed by some other person in the presence and under the direction of the testator.
(2) The signature or mark of the testator or the signature of the persons signing for him is so placed has to appear that the same was intended thereby to give effect to the writing as a will. (3) That the will has been attested by two or more witnesses each one of whom has signed or affixed his mark to the will or has been seen by some other person signing the will in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of the signature or mark or the signature of each other person.
RCA No. 55/14 & RCA No. 56/14 page 31 of 41
Sh. Gorakh Nath Pandey
Additional District Judge (NE)
Karkardooma Courts Delhi.
(4) That each of the witnesses has signed the will in the presence of the testator."
30. As regards the relief of injunction, the injunction is a discretionary relief and its grant of refusal depends upon the circumstances and facts of a particular case. The discretion has to be reasonable guided by judicial principles and law. It must not be arbitrary, vague and fanciful. Section 41 of the Specific Relief Act enumerates the cases where an injunction will be denied. Sub Section (h) of section 41 mention that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust the injunction cannot be granted. Sub Section (i) mention regarding refusal of injunction when the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the court. Section 38 of the Specific Relief Act enables the court to grant a perpetual injunction to prevent the breach of an obligation existing in favour of applicant whether express or implied. Meaningly the question is to be examined as to whether there exists an obligation in favour of the applicant and thereafter if the answer is yes, if the case falls within section 41 of the Act, an injunction cannot be granted. It is also necessary to mention that rights and obligation are corollary to each other and the right places a corresponding duty also for its existence.
31. As held in JT 1994 (6) SC 588 , interest of right not shown to be in existence cannot be protected by injunction. The question therefore is whether an injunction can be issued against the true owner. Issuance of order of an RCA No. 55/14 & RCA No. 56/14 page 32 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
injunction is absolutely discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41 (j) of the Specific Relief Act, 1963 and the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence cannot be protected by injunction. 32 Section 27 of Indian Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an obligation to set forth in the instrument all facts and circumstances which affects the chargeability of duty on that instrument. Section 17 of the Registration Act, 1908 makes deed of conveyance compulsorily registrable. The transfer of an immovable property can only be by a deed of conveyance and in the absence of a deed of conveyance ( duly stamped and registered as required by law), no right, title or interest in an immovable property can be transfered. With regard to the legal validity of such documents i.e. agreement to sell, GPA, Will and receipt, the Hon'ble Supreme Court in the case of Suraj Lamps and Industries Pvt. Ltd. Vs. State of Haryana reported in AIR 2009 SC 3077 has held that such documents cannot create any right in respect of immovable property. The only way a contract of sale can create title to immovable property is by way of a deed of conveyance as defined under Section 54 of the Transfer of Property Act and registered in pursuance of the provisions of Section 17 of The Registration Act, 1908. No such document has been executed in favour of respondent No. 1 by appellant.
RCA No. 55/14 & RCA No. 56/14 page 33 of 41
Sh. Gorakh Nath Pandey
Additional District Judge (NE)
Karkardooma Courts Delhi.
33. This Court is conscious of the judgment of the Hon'ble High Court in the case of Sh. Ramesh Chand Vs. Suresh Chand reported in 188 (2012) DLT 538 in which the judgment in the case of Suraj Lamps (supra) was interpreted. In the case of Ramesh Chand (supra) the Hon'ble High Court was pleased to hold that right to possess immovable property arises not only from a complete ownership right but also by having a better title.
In the present case respondent No. 1 has claimed title on the basis of GPA, Agreement to Sell, Payment receipt and the will but the execution of the documents not proved along with the execution of the will. None of these documents are registered. Even if these documents were executed by the appellant in favour of respondent No.1, the same would not create any title in her favour and the appellant is the owner of the suit property. As mentioned, the respondent No. 1 claimed to be the owner of the suit property which is denied by the appellant. Since there is no registered sale deed executed in favour of the respondent No. 1 in respect of the suit property in accordance with provisions of Transfer of Property Act, 1882, the respondent No. 1/plaintiff is not the owner of the suit premises and not entitled for the relief of possession, damages/mesne profits and permanent injunction as prayed in the suit No. 643/08.
34. It is reiterated that appellant has denied the execution of any GPA or other documents in favour of the respondent No. 1 contending that her signatures were obtained on the pretext of loan documents and all the original documents were handed over to the respondent No. 1. None of the documents RCA No. 55/14 & RCA No. 56/14 page 34 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
allegedly executed by the appellant are registered nor possession of the suit property was ever handed over to the respondent and therefore neither Section 53 A of the Transfer of Property Act, 1882 nor Section 202 of the Contract Act, 1872 is applicable for ownership of the respondent. The law laid down the Hon'ble Supreme Court in SLP (C) No. 13917 of 2009 titled as Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana & Ors. is squarely applicable in the facts of this case.
35. The issue regarding the suppression of the material facts was decided in favour of the appellant and the said finding is not challenged before this Court in the appeal. As regards issue No. 2 regarding valuation of the suit property, the appellant has not challenged and assailed this issue before this Court. Therefore the issue regarding valuation is not considered.
36. It is settled that ownership and possession are two entirely different concepts. It necessarily follows that it is not only possible but also permissible to transfer one without the other. In simple words it is permissible to transfer ownership without transferring possession. Similarly, it is also possible to transfer possession without transferring ownership. It is relevant to note here that in this case neither the ownership had been transferred in pursuance of the provision of the Transfer of the Property Act nor possession of the suit property was ever handed over to the respondent.
37. As regards the issue of mortgage of the suit property by the appellant, prayer for relief of declaration and mandatory injunction by the appellant/plaintiff RCA No. 55/14 & RCA No. 56/14 page 35 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
in suit No. 620/07 is concerned, the contention of the appellant appears to have substance. Admittedly the appellant is illiterate and the contents of any documents allegedly executed by her was not read over. The respondent admitted that the possession of the suit property was never handed over by the appellant. None of the documents are registered. Like other documents i.e. GPA, Will, Agreement to sell and Receipt, no documents regarding handing over the possession by appellant to the respondent or subsequent handing over possession by the appellant is on record. It also appears absurd and unreasonable that the appellant has sold the suit property to the respondent without handing over the possession and again approached to the respondent for the possession of the suit property and the respondent thereafter permitted the appellant to reside in the suit property. Moreover, the case of the respondent is contrary itself to earlier version regarding possession. Respondent permitted the appellant to reside the suit property as contended but not made any complaint against appellant nor taken any steps for getting the property vacated until the appellant made complaint to the police and filed suit for declaration and permanent injunction. Further, the respondent have not claimed any amount from the appellant either as license fee or as rent during the said period being very generous and benevolent. These facts does not inspire confidence. The respondent admitted that the original documents of the title of the suit property including the entire previous chain are with her and the matter was settled between the parties before the police when the appellant made complaint. The RCA No. 55/14 & RCA No. 56/14 page 36 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
above circumstances can lead to only one conclusion that the suit property mortgaged only and was never sold by the appellant to the respondent
38. In fact the testimony of respondent as PW1 in suit No. 643/08 was totally shattered. The appellant is illiterate lady and the possession of the suit property was never handed over to the respondent No. 1. Even otherwise the alleged documents executed by the appellant have no value in the eye of law. The appellant has made complaint against the respondent for not returning the original documents with her and this factum is duly proved in view of the testimony of the parties. It is further corroborated that the parties were well known to each other. One question may be asked as to when the respondent has purchased the suit property taken all the original documents, why the possession of the suit property was not taken by the appellant. The respondent No. 1 filed this suit for possession against the appellant after more than one year of filing this suit for declaration and injunction by the appellant. The other witnesses examined by the respondent No. 1 failed to depose regarding the sale transaction as alleged by the respondent and their testimony appears mainly in the nature of hearsay evidence. The suit of the respondent may be considered as a retaliation and counter attack to the legal notice and suit filed by the appellant against the respondent. The appellant further denied the contention during crossexamination that she sold the suit property to the respondent No.
1. Though the appellant admitted her signatures and thumb impression on the documents ( though the documents remained unproved as per law) but RCA No. 55/14 & RCA No. 56/14 page 37 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
explained regarding the same deposing that she never sold the suit property to the respondent. The testimony of appellant remained unimpeached and un rebutted in one way or the other. The testimony of the appellant appears to be true and sustainable as admittedly the appellant is illiterate and none of the documents including the GPA is registered. The findings of the Ld. Trial Judge regarding mortgage of the property by the appellant is not sustainable.
39. Admittedly the appellant is in possession of the suit property. The respondent allegedly derived the title through documents Ex. PW1/B, Ex. PW1/C, Ex. PW1/D and Ex. PW1/D1 executed by the appellant. By no stretch of imagination by virtue of these documents, the plaintiff can be considered as the owner of the suit property having right, title or interest.
40. In the present case the appellant is the owner of the suit property and there is nothing on record to infer that she has sold the suit property to the respondent or consequently ever handed over the possession. The respondent further failed to prove that the possession was handed over as part performance of the agreement to sell and defendant was permitted to use the suit property as permissive user. Thus the only inference which can be drawn in view of the pleadings and evidence led is that the appellant is the owner in possession of the suit property.
41. The appellant is in continuous and in settled possession of the suit property and the respondent has no right to interfere. It is further proved that the appellant has never sold the suit property to the respondent No. 1 and the RCA No. 55/14 & RCA No. 56/14 page 38 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
original documents were handed over to the respondent No. 1 towards loan.
In view of the aforesaid discussions and referred law, this Court is of the considered view that the respondent cannot be considered having right, title or interest in the suit property better than the appellant and the documents Ex. PW 1/B, Ex. PW1/C, Ex. PW1/D and Ex. PW1/D1 relied by the respondent is neither helpful nor sufficient to prove the claim of the respondent/plaintiff in the suit. There is no merit and substance in the defence raised by the respondent. The respondent/ plaintiff is therefore not entitled for the decree of the possession, recovery of mesne profits/damages and permanent injunction as prayed in the suit No. 643/08, the finding of Ld. Trial Court is not sustainable and cannot be upheld. As the appellant is the owner of the suit property, the documents executed by the appellant Ex. PW1/B, Ex. PW1/C, Ex. PW1/D & Ex. PW1/D1 are declared to be null and void and canceled accordingly. The appeals therefore filed by the appellant are allowed and impugned judgment and decree dated 17.08.2011 in suit No. 643/08 and dated 06.07.2010 in suit No. 620/07 is set aside.
Relief in RCA No. 55/14 ( Suit No. 620/07)
42. In view of the aforesaid discussions and findings, this court is of the considered opinion that appellant/plaintiff has proved her case and therefore, she is entitled for the following relief as prayed in the suit No. 620/07:
(a) It is declared that the documents of purchase of respondent No. 1 of purchase of suit property i.e. GPA, Agreement to Sell, Will and Receipt is RCA No. 55/14 & RCA No. 56/14 page 39 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
declared null and void and are accordingly cancelled.
(b)The suit of the plaintiff/appellant qua relief of mandatory injunction is allowed and the respondent No. 1 is directed to return all the documents of ownership in the name of the appellant executed by Smt. Laxmi Giri i.e. GPA, Agreement to Sell, Receipt, Affidavit and Will to the appellant.
(c) Decree of permanent injunction is passed in favour of the appellant/plaintiff and against the respondents/defendants and the respondents, attorneys, representative, agents etc. are restrained from illegally and forcibly dispossessing the appellant from the suit property i.e. Khasra No. 10/24, Block G, Gali No. 4, West Karawal Nagar, Delhi94 as shown in red color with the site plan attached with the plaint Ex. PW1/1 except without due process of law.
43. The appeal is allowed with cost.
44. Decree sheet be drawn accordingly.
45. Trial Court record be sent along with copy of this judgment.
46. Appeal filed be consigned to record room.
Relief in RCA No. 56/14 ( Suit No. 643/08)
47. As the appellant is found the owner in possession of the suit property in view of the aforesaid detail discussion, it is held that:
(i) the plaintiff/respondent has no locus standi to file this suit.
(ii)The suit filed by the plaintiff/respondent vide Suit No. 643/08 is dismissed and it is held that plaintiff/respondent is not entitled for the decree of RCA No. 55/14 & RCA No. 56/14 page 40 of 41 Sh. Gorakh Nath Pandey Additional District Judge (NE) Karkardooma Courts Delhi.
possession, recovery of damages and permanent injunction as prayed in the suit. The suit bearing No. 643/08 is dismissed.
(iii)The impugned judgment and decree dated 17 August, 2011 is set aside and the appeal filed by the appellant is allowed with cost.
48. Decree sheet be drawn accordingly.
49. Trial Court record be sent along with copy of this judgment.
50. Appeal filed be consigned to record room.
Announced in open Court on this 16th day of April, 2014 Gorakh Nath Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
RCA No. 55/14 & RCA No. 56/14 page 41 of 41
Sh. Gorakh Nath Pandey
Additional District Judge (NE)
Karkardooma Courts Delhi.
RCA No. 55/14 & RCA No. 56/14 page 42 of 41