Delhi District Court
Sh. Chand Ram vs Sh. Manoj Dhingra on 23 May, 2022
IN THE COURT OF :
Dr. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Regular Civil Appeal No.06/2018 (09/2018)
In the matter of:
1. Sh. Chand Ram
2. Sh. Jai Bhagwan
3. Sh. Hari Om
All son of late Sh.Ganpat
4. Smt.Bharto
Wife of Sh.Chhatar Singh
5. Smt. Khajani
wife of Sh. Om Prakash
6. Smt.Chhotto Devi
wife of Sh.Anoop Singh
All (4 to 6) D/o late Ganpat
All resident of 1506/21/A Maksudabad
Najafgarh, New Delhi
.....Appellants
Versus
1. Sh. Manoj Dhingra
So Late Sh. Sant Lal Dhingra
R/o Flat no. 604, Saksham Apartment
Dwarka, New Delhi 110075
RCA no. 09/2018 (06/2018)
Chand Ram v. Manoj Dhingra
Page no. 1 of 56
2. Smt. Parmeshwari Devi
W/o late Sh. Jeet Singh
3. Mrs. Sushila
D/o Late Sh. Jeet Singh
4. Mrs. Sunita
D/o Late Sh. Jeet Singh
5. Sh. Rajesh
S/o Late Sh. Jeet Singh
6. Sh. Vinod Kumar
S/o Late Sh. Jeet Singh
7. Sh. Rakesh Kumar,
S/o Late Sh. Jeet Singh
8. Sh. Naveen Kumar
S/o Late Sh. Jeet Singh
All residents of Village Bindapur,
P.O. Uttam Nagar,
New Delhi 110 059
9. Sh. Daya Dutta Vashisht
S/o Sh. Ram Vashisht
W/o WZ39, Chaukhandi
New Delhi
.......Respondents
Date of Institution of Appeal : 01.02.2018
Date of transfer to this court : 04.07.2018
Date of reserving judgment : 20.05.2022
Date of pronouncement : 23.05.2022
RCA no. 09/2018 (06/2018)
Chand Ram v. Manoj Dhingra
Page no. 2 of 56
Appearance:
1. Sh. Anil Kumar Sharma, Advocate ld. Counsel for the appellant
2. Sh. N.C. Sharma, Advocate ld. Counsel for the respondent.
REGULAR CIVIL APPEAL AGAINST THE JUDGMENT/DECREE
DATED 23.12.2017 PASSED BY MS. NIYAY BINDU, Ld. SCJCUMRC
SOUTH WEST DWARKA COURTS, NEW DELHI
J U D G M E N T:
1. The present appeal has been filed by defendant/appellant against the impugned judgment and decree dated 23.12.2017. Appellants/LR of defendant no.3 and plaintiff/respondent are hereinafter referred to as per their litigative status before the ld. trial Court.
2. Brief facts relevant for disposal of present appeal are like this:
(i) Plaintiff filed a suit for permanent injunction and averred that plaintiff is in actual possession of a piece of plot falling in khasra no.10/10/2 (1 Bigha = l000 sq. yds) admeasuring 5 Biswas (250 sq. yds.) situated at Najafgarh, New Delhi as detailed in the site plan (in short, "the suit plot"). Plaintiff purchased the suit plot from Smt. Jameela Khatoon W/o Sh. Syed Anis Hasan Baqai through agreement to sell dated 27.11.1981, (in short the said agreement) which was executed by Sh. A. H. Baqai, husband of Smt. Jameela Khatoon, being her power of attorney holder, for an amount of Rs. 20 thousands; and possession of the suit plot was also handed over to plaintiff by the owner, Smt. Jameela Khatoon, and since then the plaintiff is in exclusive possession of the suit plot.
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(ii) The plaintiff and her husband in term of clause 4 of the said agreement started raising construction over the suit plot on 08.03.1987. The defendant nos. 1 and 2 with their associates came on the suit plot and started interfering with the construction work without having any right, title or interest in the suit plot. The defendant nos. 1 and 2 and their henchmen threatened plaintiff and her husband that, in case, they did not stop the construction work on the suit plot, they will have to face the dire consequences. A complaint in this regard was recorded vide DD No.13A dated 08.03.1987 in P.S. Najafgarh, New Delhi.
(iii) It is further averred that the defendant nos. 1 and 2 have no right, title or interest in the suit plot and they tried to interfere in the peaceful possession of the plaintiff over the suit plot, therefore, during the necessity has arisen to seek a permanent injunction restraining the defendant nos. 1 and 2 and their associates from interfering in the peaceful possession of plaintiffs on the suit plot.
(iv) It is further averred that there was a good, prima facie, in favour of the plaintiff, as she happened to be in possession of the suit plot and the ld. trial Court on 18.03.1987 heard the ex parte arguments on the application seeking interim injunction and directed the plaintiff and defendant to maintain status quo with regard to possession of the suit plot. The ld. trial Court also appointed a local Commissioner with the direction to visit the suit plot and submit his report regarding RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 4 of 56 possession over the suit plot. The Ld. local Commissioner has filed the report and the defendant no.1 also filed his written statement and after pleadings were completed, the ld. trial Court fixed for arguments on the application seeking interim injunction filed by plaintiff for 19.11.1987.
(v) It is further averred that the husband of plaintiff went to the suit plot on 24.10.1987 and defendant no.1 was found trying to build a boundary wall over the suit plot. The husband of the plaintiff reported the matter to the police station Najafgarh, New Delhi vide DD No.26A dated 24.10.1987. The defendant nos.1 and 2, later on, on 27.10.1987 were raising the wall from front side of the suit plot and installed the gate in violation of the order of the status quo passed by the ld. trial Court. The husband of plaintiff called defendants to stop constructions in view of the status quo order passed by the ld. trial Court. However, the defendants and their associates threatened husband of plaintiff. The husband of plaintiff submitted the application to police station Najafgarh, New Delhi on 27.10.1987 but no action was taken.
(vi) It is averred that the plaintiff has filed the contempt petition under Order 39 Rule 2A CPC on 28.10.1987. The defendant no. 1 alongwith defendant nos. 3 and 4 had broken upon the door of suit plot and kept tin shed inside the suit plot on 06.02.1991 and when the husband of plaintiff objected to such trespass, he was threatened with RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 5 of 56 dire consequences. A police report was lodged against the defendant on 07.02.1991. The defendant nos. 3 and 4 were found in possession of the suit plot. It was also informed that the defendant no.1 in disobedience in the interim order passed by the ld. trial Court sold the suit plot to defendant nos. 3 and 4. The plaintiff also filed a contempt petition against the defendant no.1.
(vii) Hence, the present suit which was filed for permanent injunction was amended and the amended plaint was filed and plaintiff also sought possession of the suit plot alongwith the reliefs detailed in the amended plaint.
3. The defendants were served with summons for settlement of issue of the suit and they filed written statement and after amendment of the plaint, defendants filed the amended statement. The defendant no.1 in his amended statement has submitted that the suit is not maintainable as the same is filed without any cause of action. The plaintiff is neither the owner, nor in possession of the suit plot and, therefore, she has no locus standi to present the suit. The suit is bad for mis joinder of parties. The suit plot is in the name of wife of defendant no.1. The suit is also bad for mis joinder of parties inasmuch as defendant no.2 has no right, title or interest in the suit plot. The plaint has not been valued appropriately for the purpose of court fees and jurisdiction. This court has no jurisdiction to entertain the suit as Revenue Court has jurisdiction to entertain such suit. The plaintiff has not come with clean hands.
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4. It is submitted that the defendant no.1, is the owner in possession of the suit plot. Neither the plaintiff nor the defendant no.2 has any right, title or interest over the suit plot. The plaintiff has never been handed over the possession of the suit plot on 27.11.1981 or on any other date from anyone. Plaintiff has no right, title or interest in the suit plot. Defendant no.1 is in the actual physical possession of the suit plot since very long and he has installed a hand pump over there and has been in continuous use, occupation, possession and enjoyment of the suit plot. The said agreement in favour of plaintiff, if any, is unauthorized and ineffective in as much as none other than defendant no.1 has any concern with the suit plot. The said agreement and other alleged document having no value whatsoever, and defendant no.1 is not bound by the same.
5. It is submitted that plaintiff was never in possession of the suit plot at any point of time, so there is no question of any structure being raised on the suit plot by plaintiff. The plaintiff is neither the owner nor in possession of the suit plot, therefore, no question arises of any threats being extended by defendant no.1 to plaintiff. The plaintiff has never been dispossessed as alleged, otherwise, defendant no.1 has throughout been in possession of the suit plot.
6. Defendant no.3 filed written statement and inter alia, submitted that the plaintiff is neither the owner nor in possession of the suit plot, therefore, plaintiff has no locus standi to file the present suit. The suit is bad for mis joinder of necessary parties. The plaintiff is RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 7 of 56 misleading this court knowing fully well that defendant no.3 is owner in possession of the suit plot which is a constructed property comprising of an area of 359 sq. yards, which has been purchased by defendant no.3 for valuable consideration. The suit plot has been transferred for valuable consideration to defendant no.3 by Sh. Hari Kishan, as attorney of Ms. Parmeshwari Devi, and he had executed necessary sale documents in his favour alongwith the delivery of the possession to defendant no.3 in the year 1988. The plaintiff has anything to do with the suit plot of which the defendant no.3 is the owner in possession.
7. It is further submitted that the suit filed by plaintiff as attorney is not maintainable against the defendant no.3, who is owner in possession of the suit plot having purchased the same for valuable consideration. The said Jameela Khatoon has also filed the suit in respect of the suit plot against defendant no.3 which is pending before the ld. trial Court. The plaintiff has not come with the clean hands. It is submitted that defendant no.3 purchased the suit plot situated in khasra no. 10/10/2 and 10/11, Village Najafgarh, New Delhi from Sh. Hari Kishan, who is a GPA holder of Smt. Parmeshwari Devi, and in that capacity, he executed the sale documents and handed over the physical possession of the suit plot to the defendant no. 3.
8. It is submitted that defendant no.3 purchased the suit plot situated in khasra no. 10/10/2 and 10/11, Village Najafgarh, New Delhi from Sh. Hari Kishan, who is a GPA of Smt. Parmeshwari Devi holder, RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 8 of 56 and in that capacity, he executed the sale documents and handed over the physical possession of the suit plot to defendant no.3.
9. It is submitted that Ms. Jameela Khatoon appointed Sh.
Jeet Singh as his GPA holder and executed sale documents in his favour for the said property admeasuring 2 bighas (2000 sq. yards) and on the basis of the same, Sh. Jeet Singh executed a sale deed dated 15.10.1982 in favour of his wife Mrs. Parmeshwari Devi for the land admeasuring 1100 sq. yards, khasra no. 10/10/2, i.e. 22 Biswas Village Najafgarh, New Delhi, i.e. 1/2 of the said property (in short the suit property). The mutation was also recorded in the name of Sh. Parmeshwari Devi in respect of the suit property which was never challenged.
10. It is submitted that neither plaintiff nor Ms. Jameela Khatoon is having right, title or interest in the suit plot which is a part and parcel of the suit property sold by Sh. Jeet Singh in favour of his wife Mrs. Parmeshwari Devi who, in turn, sold the suit plot to Sh. Hari Kishan/defendant no.4 on 05.02.1998 and Sh. Hari Kishan sold the suit plot to defendant no.3 on 20.05.1988 and delivered the physical possession thereof. The suit be dismissed.
11. Replication to the written statements has been filed reaffirming and reasserting the averments made by the plaintiff in the plaint.
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12. On the basis of pleadings of the parties, following issues were framed vide order dated 26.03.1999 :
Issues :
(i) Whether the plaintiff has no locus standi to file the present suit ?
(OPD3)
(ii) Whether the suit is bad for misjoinder and nonjoinder of necessary parties ? (OPD3)
(iii) Whether the suit has not been properly valued for the purposes of court fees and jurisdiction ? (OPD3)
(iv) Whether the plaintiff is not the owner of the suit property ? onus on parties.
(v) Whether the suit is not maintainable in its present form ?
(OPD3)
(vi) Whether the plaintiff is entitled for a decree of possession, as prayed for ? (OPP)
(vii) Whether the plaintiff is entitled for a decree of permanent injunction, as prayed for ? (OPP)
(viii) Relief.
13. Thereafter, the matter was listed for PE. The plaintiff led evidence and examined Sh. A.H. Baqai as PW1 who proved agreement to sell executed by him in favour of Ram Devi in capacity of the attorney of his wife Jameela Khatoon as Ex.PW1/1 alongwith affidavit Ex.PW1/2 and a registered receipt Ex. PW1/3.
14. PW2 Sh. Dinesh Goel was the Local Commissioner who was appointed previously by the ld. trial Court to inspect the suit plot with respect to the possession of the same and he proved his report as Ex.PW2/1 and the spot proceedings of the inspection as PW2/2. PW3 RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 10 of 56 Sh. Sant Lal proved on record certain documents including various police complaints filed by him against the defendants. PW4 Jameela Khatoon, who is admittedly the original owner of the suit plot deposed in terms of her affidavit in evidence Ex.P4.
15. In the defendant's evidence, one Sh. Jai Bhagwan was examined as DW1 vide his affidavit in evidence as Ex. DW1 and he also proved on record the following documents :
(1) Original GPA exhibited in favour of PW1 by his father Ganpat Singh, (2) Deed of Agreement Ex. DW 1/2 executed by Sh. Hari Kishan in favour of Ganpat (3) GPA Ex. DW1/3 executed by Sh. Hari Kishan in favour of Ganpat, (4) Receipt Ex. DW1/4 executed by Sh. Hari Kishan in favour of Sh.
Ganpat (5) Affidavit Ex. DW1/5 executed by Sh. Hari Kishan in favour of Sh.
Ganpat, (6) Sale documents GPA, Deed of Agreement, receipt and affidavit all dated 05.02.1988 by Smt. Parmeshwari Devi in favour of Sh. Hari Kishan as Ex. DW 1/6 to Ex. DW 1/9, (7) Sale deed dated 15.10.1982 executed by Jeet Singh, on the basis of GPA executed by Smt. Jameela Khatoon in his favour, in favour of Parmeshwari Devi is Ex. DW 1/10, (8) GPA executed by Smt. Jameela Khatoon in favour of Jeet Singh is Ex.DW 1/11, (9) Registered receipt dated 04.08.1982 executed by Smt. Jameela Khatoon in favour of Sh. Jeet Singh is Ex. DW 1/12, (10) The mutation of the suit property recorded in favour of Sh. Jeet Singh by Jameela Khatoon is Ex. PW 1/13.
16. Sh. S. K. Verma has been examined as DW2 who was the summoned witness who produced the receipt dated 04.08.1982 RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 11 of 56 executed by Jameela Khatoon in favour of Sh. Jeet Singh and the photocopy of the same was marked as Ex. DW2/1 and he also produced the copy of the sale deed executed in favour of Smt. Parmeshwari Devi by Sh. Jeet Singh as Ex. DW2/2.
17. Sh. Rakesh Kumar has been examined as DW3 who has produced the record of Jamabandi of Village Najafgarh pertaining to the year 198081 and the same was marked as Ex. DW3/1 and he also produced the copy of mutation as Ex. DW3/2.
18. Sh. Hari Kishan has been examined as DW4 who identified his signatures on various documents already exhibited by DW1 on record.
19. It may be noted that the ld. trial Court vide order dated 29.05.2012 dismissed the suit, however, ld. Appellate Court set aside the said judgment dated 29.05.2012 through judgment dated 08.03.2011 whereby plaintiff was granted an opportunity to prove on record the GPA which was executed by Jameela Khatoon in favour of her husband A. H. Baqai on the basis of which the said A. H. Baqai executed the title documents in favour of the present plaintiff. The said document was proved on record by plaintiff with the help of PW5 who was a summoned witness, who produced the record of GPA dated 16.02.1974, which was registered on 21.02.1974 executed by Smt. Jameela Khatoon in favour of Sh. Anis Hasan Baqai and the same was marked as Ex. PW5/1 (OSR).
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20. The ld. trial Court after having the arguments decreed, the suit of plaintiff, through impugned judgment/decree.
21. Feeling aggrieved by the impugned judgment/decree, the present appeal has been filed by defendant no.3. During the course of argument, counsel for defendant no.3 has raised following contentions, namely :
(i) That the ld. trial Court has not appreciated the fact that Smt. Parmeshwari Devi was the owner of the suit plot on the strength of sale deed Ex. DW1/10 (Ex. DW2/2) which sale deed has never been challenged by Ms. Jameela Khatoon and the title of the Jameela Khatoon over the suit plot was already transferred in favour of Sh. Jeet Singh by virtue of the ratio of Judgment "Achyut Kumar Sharma v. J.
V. G. Finance" (232) 2016 DLT 1. Smt. Parmeshwari Devi sold the suit plot by way of sale document Ex. DW1/2, GPA Ex. DW1/3, Receipt Ex. DW1/4, and Affidavit Ex. DW1/5 to Sh. Hari Kishan. (Ex. DW1/2 to Ex. DW1/5 are sale documents executed by Sh. Hari Kishan in favour of Sh. Ganpat, however, the sale documents Ex. DW1/6 to Ex. DW1/9 were executed by Smt. Parmeshwari Devi in favour of Dr. Hari Kishan). Smt. Laxmi Devi and Ganpat, since deceased, during his life time, further regularized the transaction by executing Registered Deed of Conveyance in respect of the suit plot in favour of Chand Ram, Hari Om and Smt. Kashmere Devi. The sale documents were executed in favour of plaintiff by the attorney holders Sh. A. H. Baqai which document did not contain the details of the suit plot, therefore, in RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 13 of 56 view of Judgment of Braham Singh v. Sumitra 183 (2011) Delhi Law Times 1, such sale documetns are non est and as such, the above named LRs of Ganpat (defendant no.3) acquired valid title in respect of the suit plot.
(ii) That the plaintiff Ram Devi (deceased) filed suit on the strength of the said agreement without having the description of the suit plot and the agreement Ex. PW1/1 was not having any description of the area and the only details of the suit plot are as part of khasra number 10/10/2 i.e. agricultural land. Furthermore, the said agreement to sell does not create any interest or charge on the property u/s 54 of the Transfer of Property Act. The said agreement did not specifically identify the boundaries of the suit plot, and further the suit plot being the part of the property purchased by late Sh. Ganpat/defendant no. 3 and Smt. Laxmi Devi from Sh. Hari Kishan and Sh. Hari Kishan, in turn, had purchased the suit plot from Smt. Parmeshwari Devi, the recorded owner, therefore, the plaintiff ceased to have any right, title or interest in the suit plot and, as such, the issue no.1 ought to have been decided in favour of defendant no.3.
(iii) That while deciding the issue No.1, the ld. trial Court failed to consider the pleadings of the parties and evidence on record brought by the defendant no.3. The ld. trial Court ought to have held that plaintiff/Ram Devi has no locus standi to file the present suit.
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(iv) That Jeet Singh, in the written statement, has specifically stated that Daya Dutt has no right, title or interest in the suit plot and further in the written statement of defendant no.3, it was specifically pleaded that he alongwith Smt. Laxmi Devi purchased the suit plot and are in possession thereof, therefore, the defendant no.2 Daya Dutt was wrongly impleaded as a party and Smt. Laxmi Devi being joint owner in possession of the suit plot on the strength of GPA sale transaction was a necessary party. The ld. trial Court has thus failed to consider the above said facts and has erred in deciding the issue no. 2 against the defendants.
(v) That Smt. Jameela Khatoon executed agreement to sell, GPA, receipt dated 04.08.1982 in favour of Jeet Singh and on the strength of the GPA Ex. DW1/11 (Ex. DW2/1), registered receipt Ex. DW1/12, Sh. Jeet Singh was empowered and authorized to sell the said property, and therefore, on the strength of document, GPA Ex. DW1/11, the sale deed Ex. DW1/10 in respect of the suit property was executed and registered in favour of Smt. Parmeshwari Devi and thereafter, the mutation of sale was also entered and sanctioned in favour of Smt. Parmeshwari Devi Ex. vide DW3/1. However, the said sale has not been challenged by Smt. Jameela Khatoon till date, therefore, in view of the same, ownership of the suit property stood transferred in favour of Smt. Parmeshwari Devi. Further, the plaintiff did not challenge or sought any relief with regard to the validity of the sale deed in favour of Smt. Parmeshwari Devi and, thereafter, the sale transaction/sale RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 15 of 56 document in favour of Ganpat (deceased) and Smt. Laxmi Devi was not challenged.
(vi) That the ld. trial Court has erred in not properly considering the facts of the case and evidence produced by defendant no.3. The ld. trial Court ought to have held that Parmeshwari Devi has become owner of the suit property by virtue of sale deed in her favour, which sale deed was never challenged till date and, in view of the aforesaid fact, Smt. Parmeshwari Devi having sold and transferred the suit plot to Sh. Hari Kishan and subsequently, Sh Hari Kishan sold the suit plot to the defendant no.3 and Smt. Laxmi Devi, defendant no.3 and Smt. Laxmi Devi have been the bonafide purchaser of the suit plot. Further Jameela Khatoon ceased to have any right, title and interest in the suit plot. The ld. trial Court has further erred in holding that the defendant no.3 and Smt. Laxmi Devi were not in possession of the suit plot.
(vii) That the ld. trial Court has erred in holding that GPA, executed by Jameela Khatoon in favour of Sh. Jeet Singh was rendered invalid while on the face of record, the GPA was valid and Sh. Jeet Singh was having legal authority and power as per clause 1 of GPA to sell the suit property and he did so, when the said GPA was in force, and the same had never been cancelled. The ld. trial Court ought to have had decided that Jameela Khatoon executed general power of attorney, on the strength of which, Sh. Jeet Singh executed sale deed in favour of Smt. Parmeshwari Devi and Smt. Parmeshwari Devi sold the suit plot RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 16 of 56 to Sh Hari Kishan thereafter, Sh Hari Kishan as the attorney of Parmeshwari Devi had sold and transferred the suit plot in favour of defendant no. 3 & Smt. Laxmi Devi and, therefore, defendant no. 3 and Smt. Laxmi Devi has become owner of the suit plot.
(viii) That the ld. trial Court has erred in not considering the pleading and the evidence led by defendant No.3 further erred in not holding that defendant no.3 and Smt. Laxmi Devi and were owners in possession of the suit plot being title holder on account of SA/GPA/Will sale transaction as per law laid down by the Hon'ble Supreme Court.
(ix) Because, the ld. trial Court has erred on the face of the law especially when agreement to sell admittedly do not create or confer any interest in the suit plot as per Section 54 of the Transfer of Property Act. In this regard reliance is placed upon Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana 183 (2011) DLT 1, Venigalla Koteswaramma v. Malampati Suryamba & Ors., 2021 SCCR 419 & Mac Associates v. SP Singh Chandel & Anr. 2013 III AD (Delhi) 1.
(x) That the plaintiff could neither prove her possession over the suit plot nor the identity/description of the suit plot rather the documents in the pleading show that the plaintiff was claiming right over piece of the agricultural land comprised in khasra no. 10/10/2 (5 Biswas out of the whole land admeasuring 1000 sq. yds.) without specifying the boundaries thereof.
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(xi) That Smt. Rama Devi alleged herself to be owner in possession of the suit plot on the basis of the agreement to sell Ex.PW1/1. The Ld. Court did not consider the legal position that the said agreement was admittedly dated 27.11.1981 and the sale deed on the strength thereof was required to be got executed by filing suit of specific performance within 3 years under Article 54 of Limitation Act, 1963. The said agreement does not create any interest or charge on the suit plot which is subject matter of the agreement, under Section 54 of Transfer of Property Act, therefore, the suit was not maintainable on the strength thereof.
(xii) That plaintiff did not produce the documents i.e. irrevocable power of attorney allegedly executed in favour of Smt. Rama Devi/ plaintiff. The plaintiff had no locus standi to file the suit. The plaintiff admittedly having no right, title or interest in the suit plot under Section 54 of Transfer of Property Act and further the suit was filed after the expiry of period of limitation for specific performance for seeking any relief regarding her title on the basis of the said agreement. She did not produce GPA alleged to have been executed in her favour by Smt. Jameela Khatoon as mentioned in Ex. PW1/1. Smt. Ram Devi did not come in the witness box, therefore, plaintiff, Smt. Ram Devi, failed to prove her case, therefore, she had no locus standi to file the present suit. The said agreement was neither proved nor, plaintiff proved her possession over the suit plot. The appellants are the LR of deceased defendant no. 3, therefore, they are entitled to RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 18 of 56 file the present appeal. In this regard reliance is placed upon judgment Jaskirat Datwani vs Vidyavati & Ors passed in Appeal (civil) 32813282/2002 passed by Hon'ble Supreme Court.
(xiii) The ld. trial Court failed to consider that as per pleadings of the parties defendant No.2 Daya Dutt was not having any right, title or interest in the suit plot while Smt. Parmeshwari Devi was recorded owner of the same, having purchased the suit property through sale deed dated 15.10.1982 executed and got registered by Sh. Jeet Singh and mutation of sale was also entered and sanctioned in her favour in the revenue records and as such Jameela Khatoon ceased to have any right, title or interest in respect of the suit property. Therefore, Smt. Parmeshwari Devi, who sold the suit plot to Sh. Hari Kishan, who thereafter, had sold the suit plot to defendant no.3 Ganpat (deceased) and Smt. Laxmi Devi, were necessary parties and have not been impleaded in the suit.
(xiv) That DW1 Jai Bhagwan has proved that the suit plot alongwith other area total measuring 376 sq. yds. was purchased by defendant No.3 Ganpat and Smt. Laxmi Devi from Sh. Hari Kishan, who had purchased the same from Smt. Parmeshwari Devi, the recorded owner being her general power of attorney. The sale documents were placed on record by him in his evidence and therefore, the ld. trial Court erred in law is not considering the evidence produced by the defendant no.3 and as such the issues were required to be decided in favour of Smt. RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 19 of 56 Ganpat and Smt. Laxmi Devi. Therefore, neither plaintiff nor Smt. Jameela Khatoon were owners or have any right, title or interest in the suit plot.
(xv) The ld. trial Court thus erred in law in not deciding Issue No.4 in favour of the defendant no.3 Ganpat (deceased) by holding that, in law, the plaintiff was not the owner of the suit property. The ld. trial Court erred in law in not deciding the issue no. 5 and left it open after mentioning certain facts. The judgment/decree are not sustainable in law being against the provisions of Transfer of Property Act and Limitation Act.
22. It is contended that on the face of the pleadings of the parties, the agreement Ex. PW1/1 is in respect of the suit plot which is a part of khasra no. 10/10/2 having no boundaries given in PW1/1. Plaintiff Ram Devi did not come in the witness box to prove the taking of the possession of the suit plot as alleged in agreement PW1/1. In this regard reliance is placed upon Vidhyadhar v. Manik Rao AIR 1999 SC 1441, and Kasturi Radhakrishnan (TMT) & Anr. v. M. Chinnyam (2016) SCCR & 22. The suit on the face of pleading having been filed under Section 6 of the Specific Rules Act to plead and prove that the suit plot i.e. specific immovable property, was in her possession, and the same was delivered to her by the previous owner, and the suit plot was trespassed by the defendants without due process of law on a particular date and the same was to be filed within six months u/s 6 of the Specific Relief Act. In this regard, reliance is placed upon Madan Lal RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 20 of 56 (Through LRs) & Ors. v. Ram Pratap (Through LRs) & Anr. 177(2001) DLT 159.
23. The ld. trial Court erred in law in decreeing the suit by deciding the impugned judgment and holding in para no. 15, that the plaintiff "has successfully proved his possession of property before the date of alleged illegal dispossession on 27.10.1987", which finding are against pleadings and evidence of the plaintiff on record as the plaintiff, since deceased, in her amended plaint dated 20.04.1992 in para No. 9, has pleaded that "lastly the cause of action arose on 06.02.1991 when the defendants No.3 & 4 were found in possession of the suit land".
24. Per contra, Ld. counsel for plaintiff has contended that this appeal is not maintainable in as much as Sh. Ganpat/defendant no. 3 died during the pendency of the suit, but during his lifetime, he sold the portion of the suit plot admeasuring 239 sq. yards to Sh. Hari Om, son of Sh. Ganpat and Smt. Kashmiri Devi w/o Sh. Jai Bhagwan and remaining portion of 119.66 sq. Yards to Sh. Chand Ram through separate sale deed dated 30.05.2001. Therefore, the LR of defendant no.3 has no locus standi to file the present appeal.
25. That the defendant no.3 has sought right on the suit plot on the basis of sale deed executed in respect of suit property in the name of his wife Smt. Parmeshwari Devi by Sh Jeet Singh. The said sale deed was executed through the sale document executed by Smt. Jameela Khatoon in favour of Sh. Jeet Singh whereby, the said RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 21 of 56 property was transferred in the name of Sh. Jeet Singh. Smt. Jameela Khatoon has already sold the suit plot on the main road towards the backside of her total land to Smt. Rama Devi, the plaintiff. Hence, Smt Jameela Khatoon while entering into agreement to sell with Sh. Jeet Singh for the remaining land of khasra no. 10/10/2 has specified that she is having nearly 750 sq. yds. of land, in khasra no. 10/10/2 that is why the details of the said property sold to Jeet Singh in the sale documents are mentioned as under:
"land measuring 15 Biswas in khasra no. 10/10/2 touching the southern side of khasra no. 10/10/2 to the remaining land situated in khasra no. 10/11."
26. That Sh. Jeet Singh has not paid the balance sale consideration therefore, the sale documents namely GPA, Agreement to sell, receipt executed in his favour by Smt. Jameela Khatoon were canceled.
27. It is further contended that as per the case of LRs of defendant no.3, their predecessor in title i.e. defendant no. 3 has purchased 376 sq. yards of land in khasra no. 10/10/2 and khasra no. 10/11. Therefore, land in possession of defendant no. 3 is different from the land wherein the suit plot is situated, which is owned by plaintiff and which is totally separate and distinct from the land allegedly purchased by defendant no. 3 from Sh. Hari Kishan. The defendant no. 3 has illegally occupied the suit plot and therefore, the alleged sale documents in favour of defendant no. 3 did not confer any right, title or interest in the suit plot situated in the backside in khasra no. 10/10/2.
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28. It is further contended that defendant no. 3 is in wrongful possession of the suit plot including land adjacent to the suit plot and Smt. Jameela Khatoon has filed a separate suit against defendant no. 3 in this regard and the said suit has been decreed in favour of Smt. Jameela Khatoon. Therefore, the sale documents executed in favour of defendant no. 3 did not confer any right, title or interest in the suit plot.
29. That admittedly, the sale documents were executed by Smt. Jameela Khatoon through her husband Sh. A. H. Baqai, being her GPA holder, to Smt. Rama Devi on 27.11.1981. However, the said Sh. Jeet Singh allegedly purchased the said property through sale documents in the year 1982 and the suit plot was not included in the said property. Even if for the sake of argument, though not admitted, it is presumed that the suit plot was a part and parcel of the said property purchased by Jeet Singh the sale documents in favour of Sh. Jeet Singh have already been canceled by Smt. Jameela Khatoon for non payment of the remaining sale consideration. The defendant no.3 has allegedly purchased the suit plot from Sh. Hari Kishan in the year 1988. Therefore, by virtue of Section 48 of the Transfer of Property Act, the right, title of the plaintiff will prevail upon the right/title of the defendant no. 3 over the suit plot, which came into existence in favour of defendant no.3 in the year 1988 only.
30. That the ld. trial Court has rightly recorded the findings on record in as much as PW1 has proved on record that the suit plot was purchased by plaintiff Smt. Rama Devi in terms of the sale documents RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 23 of 56 namely Agreement to sell, affidavit and receipt i.e. Ex. PW1/1, Ex. PW1/2 and Ex. PW1/3 respectively. PW1 has further testified that the possession of suit plot was handed over to plaintiff and she was in possession of the suit plot at the time of filing of the suit. Smt. Jameela Khatoon is the owner of the suit plot. PW5 has proved the registered GPA executed by Smt. Jameela Khatoon in favour of Sh. A. H. Baqai.
31. That PW1 Sh. A. H. Baqai has also proved the GPA on the basis of which sale documents were executed in favour of plaintiff in respect of the suit plot and no suggestion has been given to PW1 to dispute the title or possession of plaintiff over the suit plot. Husband of plaintiff/PW3 had proved the contents of the plaint as well as site plan on behalf of plaintiff being her GPA holder. Therefore, it is also proved on record that defendant has tresspassed on the suit plot in violation of the interim directions issued by the ld. trial Court.
32. It is further contended that PW4 has deposed in categoric terms that she sold the suit plot to plaintiff and she further testified that she had entered into an agreement to sell with Sh. Jeet Singh for disposal of the said property. However, Sh. Jeet Singh failed to pay the sale consideration. Therefore, she has cancelled the said sale documents. PW4 has also deposed in categoric terms that she has disposed off 5 Biswa land (250 sq. yards) situated in khasra no.10/10/2 to plaintiff and the remaining land of 15 Biswas falling in khasra no. 10/10/2 alongwith other land, she had sold to Sh. Jeet Singh. The sale documents in favour of Sh. Jeet Singh were cancelled by Smt. RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 24 of 56 Jameela Khatoon. Therefore, Sh. Jeet Singh was left with no right, title or interest to transfer, either in favour of his wife or to execute the sale documents in favour of the subsequent vendees including defendant no.3. The said documents did not create any right, title or interest in the suit plot in favour of defendant no. 3.
33. That the case of the defendant no.3 is that the suit property including the suit plot was transferred in the name of Sh. Parmeshwari Devi through sale deed dated 15.10.1982 and finally, the suit plot was transferred in the name of defendant no. 3 in May 1988. Whereas, Sh. Jeet Singh always claimed that he is the owner of the said property including suit plot even in his amended WS. Therefore, the case of defendant no. 3 could not be believed who has allegedly purchased the suit plot during the pendency of the suit and in violation of interim directions issued by the trial court. Therefore, the claim of defendant no. 3 is also barred by law.
34. That defendant no. 3 alleged that he purchased the suit plot admeasuring 376 sq. Yards and later on admitted that there is no plot admeasuring 376 sq. yards but the same was of 359 sq. yards. The alleged Jamabandi in favour of Smt. Parmeshwari Devi is pertaining to the year 198081 whereas, the suit property was transferred in the name of Smt. Parmeshwari Devi by Sh. Jeet Singh in the year 1982. Therefore, the alleged mutation in the name of Smt. Parmeshwari Devi prior to 1982, did not confer any title in favour of Smt. Parmeshwari Devi.
RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 25 of 56
35. That defendant no. 3 never came into picture at the time of filing of the suit in 1987 in as much as he allegedly purchased the suit plot in 1988. Whereas, plaintiff proved her documents Ex. PW1/1 to Ex. PW 1/3 duly executed by Sh. A. H. Baqai, husband of Smt. Jameela Khatoon and thereafter, since then, she is in possession of the suit plot.
36. That defendant no. 3 failed to lead any evidence to prove that how the suit is bad for non joinder or mis joinder of parties in as much as defendant no. 3 has not disclosed that Smt. Laxmi Devi was coowner of the suit plot with defendant no. 3. However, in evidence, defendant no. 3 disclosed that Smt. Laxmi Devi purchased the portion of the said plot. The plaintiff moved an application u/o I R 10 of CPC for impleading Smt. Laxmi Devi and Sh. Daya Dutt as necessary parties in the present suit. However, the said application was dismissed by the ld. trial Court holding that the said parties are transferee pendentelite, therefore, they are neither the necessary nor the proper party and bound by the decree in the suit by virtue of Section 52 of the Transfer of Property Act.
37. It is further contended that possession of the suit plot has always been with plaintiff before and she was dispossessed by the defendant no. 3 in as much as no suggestion has been given to PW 1/PW4 during the course of cross examination to dispute either the possession or the title of the plaintiff. Further, the testimony of PW1 proved the factum of the possession of the plaintiff over the suit plot.
RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 26 of 56
38. That suit property was transferred by Smt. Jameela Khatoon in favour of Sh. Jeet Singh through sale documents, which already stood cancelled for non payment of sale consideration and, therefore, are null and void and did not require to be declared as null and void by way of declaration or cancellation of such documents. In this regard, reliance is placed upon Kewal Krishan v. Rajesh Kumar and Ors. bearing civil appeal nos. 69896992 of 2021 judgment passed by Hon'ble Supreme Court of India, wherein it has been observed that there is no need to file a suit for declaration of sale deed as null and void, in case, the sale consideration was not paid and not proved by the party. In the present case also, the alleged sale deed executed by Jeet Singh in favour of his wife has not been proved as per law and it was not proved that any sale consideration was paid by Smt. Parmeshwari Devi to her husband Jeet Singh, hence, the ld. trial Court rightly held that the defendant no.3 has no right, title or interest in the suit plot as Sh. Jeet Singh was having no right, title or interest in the suit property. The alleged sale deed executed by him as attorney of Smt. Jameela Khatoon is null and void being executed without sale consideration. Hence, the appeal is liable to be dismissed.
39. It is further contended that the transaction entered into before passing of the said judgment in Suraj Lamp Case, cannot be said to have any effect on the title of the vendee. In this regard, reliance is placed upon the judgment Kalpna Devi v. Sudama Singh and Anr. cited as 2015 Legal Eagle (Del) 1694.
RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 27 of 56
40. That the sale documents in favour of plaintiff are executed before 24.09.2001 i.e. from the date on which Section 53A of Transfer of Property Act has been amended, therefore, has no applicability to the sale document of plaintiff. In this regard, reliance was placed upon Ashok Indoria v. Vidyawanti 2015 AIR (Del.)5.
41. That in suit for possession, the plaintiff has to show better title and in the present case, the plaintiff has shown better title to possess the suit plot by virtue of documents dated 27.11.1981 executed in her favour. Therefore, the plaintiff is entitled to possession on the basis of better title over the suit plot in comparison of the title of the defendant over the alleged suit plot having purchased from Sh. Hari Kishan in the year 1988. In this regard, reliance is placed upon Suresh Kumar and Anr. v. Saroj Atal 2012 (189) DLT 285 and Ramesh Chand v. Suresh Chand & Anr. cited as 2012 (188) DLT (538).
42. I have heard counsel for the parties and with their assistance have gone through the record.
43. From the pleadings of the parties, material on record and written submissions filed by counsel for the parties, following points of determination are involved in the present appeal which are reproduced as under :
(i) Whether plaintiff has been owner in possession of the suit plot admeasuring 250 sq. yards situated in khasra no.
RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 28 of 56 10/10/2 by virtue of section 53A of the Transfer of Property Act in terms of sale documents Ex. PW 1/1 to Ex. PW 1/ 3.
(ii) Whether the defendant no.3 has become owner in possession of suit plot admeasuring 376(359) sq. yards falling in khasra no. 10/10/2 & 10/11 in terms of the sale document Ex. DW 1/2 to Ex. DW 1/5 by virtue of section 53A of Transfer of Property Act.
(iii) Whether there is any congruence between the suit plot as detailed in point of determination no. (i) and the suit plot detailed in the point of determination no. (ii).
(iv) Whether the defendant no.3 has become owner of the suit plot admeasuring 376 sq. yds. as claimed by defendant no.3 on the basis of doctrine of ostensible owner as provided under section 41 of the Transfer of Property Act.
(v) Whether plaintiff is having better title over the suit plot admeasuring 250 sq. yds. than that of the title of the defendant no.3 and the suit plot admeasuring 376 sq. yds. as claimed by defendant no.3.
(vi) Whether the ownership right of the plaintiff over the suit plot will have a priority over the ownership right of defendant no.3 over the suit plot in terms of section 48 of the Transfer of Property Act.
POINT OF DETERMINATION (i) (ii) & (iii)
44. These point of determination are overlapping each other, therefore, are disposed of by this common order.
45. It may be noted that plaintiff has proved sale documents Ex. PW 1/1 to Ex. PW 1/3 through PW1 A. H. Baqai, who testified that he was authorised by his wife, PW 4 Smt. Jameela Khatoon through GPA Ex. PW 5/1 to transfer the suit plot admeasuring 250 sq. yds.
RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 29 of 56 falling in khasra no.10/10/2 in favour of plaintiff. PW1 and PW4 have also deposed in categoric terms that ownership and possession of the suit plot was transferred to plaintiff on the day of execution of the sale documents in favour of plaintiff. No suggestion has been given to these witnesses/owner of the suit plot that plaintiff has not been given possession on 27.11.1981.
46. It may be noted that the basic principles for seeking the benefit of section 53 A of the Transfer of Property Act are as under :
1. That there must be a contract and the contract must be transfer of immovable property for value.
2. It must be an agreement enforceable by law under the Indian Contract Act, 1872.
3. This section is applicable only in case of transfer of immovable property for consideration.
4. The Transferee has taken possession or continues possession in part performance of the contract or, has done some act in furtherance of the contract. Taking possession is not only the method of part performance of contract.
5. The transferee has performed or is wiling to perform his part of contract and that the the plea of part performance is not available to be raised against a transferee for consideration who has no notice of the contract or of the part performance thereof.
47. The law with regard to the part performance has been laid down by Hon'ble Superior Courts and Hon'ble High Court of Delhi in Kalpana Devi (supra) has observed that the decidion in Suraj Lamp is prospective in its application, therefore, transactions which took place prior to the rendering of the said decision are not affected by the said decision. In the same manner, in Ashok Indoria (supra) it has been observed as under :
RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 30 of 56 "8. It may be noted that Section 53A of the Transfer of Property Act, 1882 was amended by Act 48 of 2001 which came in to operation from 24.09.2001. Prior to the amendment there was no requirement of an agreement to sell in the nature of part performance to be stamped and registered. Therefore, once the documents being the agreement to sell, power of attorney etc are executed prior to 24.09.2001, the same can always be looked into for the purpose of Section 53A of Transfer of Property Act and Section 202 of the Contract Act, although these documents are not stamped and registered, and which requirements came into existence only after 24.09.2001.
Accordingly, it is held that the first appellate court has committed a clear illegality and perversity in holding that the documents dated 31.01.2001 executed by the respondentdefendant in favour of the appellantplaintiff could not be looked into."
48. Keeping in view the said principle of law I would like to advert to the facts of the present case.
49. The contention of the defendant no.3 that plaintiff came in possession of the suit plot on the basis of the said agreement (Ex. PW1/1) and the said agreement does not confer any title by virtue of Section 54 of the Transfer of Property Act, in as much as suit for specific performance is barred as provided under Article 54 of the Limitation Act, therefore, the plaintiff has never become owner in possession of the suit property, appears to be attractive but the same is fallacious in as much as plaintiff happened to be in possession of the suit property in terms of the agreement to sell Ex.PW1/1 dated 27.11.1981, Affidavit Ex.PW1/2 and registered receipt Ex.PW1/3, whereby the suit plot was disposed of by A.H Baqai husband of RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 31 of 56 Jameela Khatoon through the registered GPA (Ex.PW5/A) dated 16.02.1974 which is having the semblance of sale by way of the principle of part performance as prescribed under Section 53A of Transfer of Property Act. Apart from that, PW1 A.H. Baqai and his wife PW4 Jameela Khatoon has deposed in categoric term that suit plot admeasuring 250 sq. yards situated in khasra no. 10/10/2 was sold to plaintiff through the sale document and possession was handed over on the same day. The ratio of Braham Singh (supra) is not applicable in as much as in that case immovable property was yet to be allotted to the vendor, however, in this case the suit plot was transferred and handed over to plaintiff by PW1 A. H. Baqai. Therefore, the said judgment has no applicability to the facts of the present case.
50. In the same manner, the ratio of Madan Lal (supra) is not applicable to the facts of the present case in as much as the issue in the said judgment was with regard to seeking immediate possession by plaintiff (therein) and in such circumstances it was observed that the period of limitation under Section 6 of the Specific Relief Act 1963 is three years and the suit was held to be time barred. However, in the present case, plaintiff is seeking title and possession of the suit plot on the basis of the sale documents, therefore, that judgment has no relevance out here.
51. So far as ration of Vidhyadhar (supra) is concerned, suffice is to say that ration of that judgment is to the effect that non examination of plaintiff give rise to draw influence against him, RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 32 of 56 however in the present case PW3 Sh. Sant Lal husband of plaintiff, was having SPA of the plaintiff in his favor and on the basis of said SPA he has deposed for and on behalf of plaintiff. Otherwise also, PW1 the executor of the sale documents in favour of plaintiff has proved those sale documents, therefore, it cannot be stated that the non examination of plaintiff has been fatal to the case of plaintiff and plaintiff failed to prove his case. So is the ratio of Kasturi (supra) that a power attorney holder can deposed for and on behalf of the principal/executor.
52. As far as reliance placed upon by counsel for the defendant no. 3 on the judgment of Suraj lamp (supra) in order to contend that GPA sale has been held illegal as per the ratio of said judgment and said sale transaction is no sale in the eyes of law is concerned, suffice is to say that the ratio of Suraj lamp (supra) is not to declare all the sale transactions which have a semblance of sale of transferring rights in the immovable property by virtue of section 53A of Transfer of Property Act. Otherwise, such sale by way of part performance u/s 53 A of the transfer Property Act are protected by the said judgment. In this regard, though not quoted, reliance is placed upon Mrs. Vaneeta Khanna Vs. Mr. Rajiv Gupta passed in CS(OS) No.1200/2006, the ratio of the law laid down therein will be discussed in the later part of this judgment.
53. So far as the contention of non payment of part of sale consideration of sale documents executed by Smt. Jameela Khatoon in favour of Sh. Jeet Singh which already stands cancelled and, the RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 33 of 56 sale deed executed by Jeet Singh in favour of his wife. Therefore, the said sale deed is not a sale and the same is void document is concerned, suffice is to say that Smt. Jameela Khatoon neither challenged such sale documents executed in favour of Sh. Jeet Singh within three years of the execution thereof as per the time prescribed under Article 58 or 59 of the Schedule I appended to the Limitation Act, nor she revoked the GPA, which admittedly she was not competent to do so.
54. From the above discussion it can be safely concluded that plaintiff is the owner of the suit plot by virtue of the sale documents Ex. PW1/1 to Ex. PW1/3 and she was in possession since 27.11.1981 of the suit plot till she was dispossessed as per her pleadings in the original plaint as well as in amended plaint, in as much as defendant no. 3 happened to be in possession of the alleged suit plot purchased from Sh. Hari Kishan on 20.05.1988. defendant no. 3 has not led any evidence that either Sh. Ganpat or Smt. Parmeshwari Devi were in possession of the suit plot till the suit plot is allegedly purchased by defendant from Sh. Hari Kishan. In addition to it, Sh. Hari Kishan appeared as witness of defendant and testified that he purchased the suit flat allegedly from Smt. Parmeshwari Devi through sale documents dated 05.02.1988.
55. So far as the contention of the defendant no. 3 that Sh. Jeet Singh has purchased the said property from Jameela Khatoon through sale documents including receipt Ex.DW1/12 dated 04.08.82 RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 34 of 56 and GPA Ex.DW1/11 and on the basis of the said GPA Jeet Singh disposed of half of the said property (suit property) in favour of his wife through sell deed Ex.DW1/10. The entry of Smt. Parmeshwari Devi mutation in the Jama bandi has been carried out in terms of Ex.DW1/13. Smt. Parmeshwari Devi sold the suit plot (a portion of the suit property) admeasuring about 376 sq. yards to Sh. Hari Kishan and the said Sh. Hari Kishan has disposed of the suit plot to defendant no.3 and Smt. Laxmi Devi in terms of the agreement to sell Ex.DW1/2, GPA Ex.DW1/3 and receipt Ex.DW1/4 and affidavit Ex.DW1/5 all documents dated 20.05.1988 and on the same day and possession of the suit property was handed over to defendant no. 3 and therefore, defendant no.3 has become owner by virtue of section 53 A of the Transfer of Property Act is concerned.
56. It may be noted that ld. trial Court has discarded GPA Ex.DW1/11 executed in favour of Jeet Singh by Smt. Jameela Khatoon holding that the said GPA with complete pages is not on record. However, the said observation is contrary to record in as much as at the time of exhibition of the said document Ex. DW1/11 (Ex. DW2/1) no objection has been raised that the complete pages of the said GPA has not been placed on record. Further, if one of the pages of the said pages as observed by ld. trial Court, presumed to be not available on record, otherwise complete GPA is available on record, the said GPA cannot be discarded in as much as PW4 Smt. Jameela Khatoon has admitted in her cross examination that she has disposed of the said property to Sh. Jeet Singh for an amount of Rs.2,00,000/ through sale RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 35 of 56 documents including DW1/11 and DW2 official witness also proved the said GPA as Ex. DW 2/1. However, the said remaining sale consideration of Rs.1,50,000/ has not been paid by Sh. Jeet Singh to Smt. Jameela Khatoon and she has cancelled the said sale documents. PW4, witness of plaintiff, admitted the sale transaction with Sh Jeet Singh. Therefore, it cannot be said that the GPA Ex.DW1/11 (Ex. DW2/1) was not on record and proved as per law. Therefore, the observation of ld. trial Court that all the subsequent sale documents executed on the basis of GPA Ex. DW1/11 (Ex. DW2/1) lost their significance and relevance and the said documents cannot be stated to be legal document so as to confer title on the party/defendant no. 3 is recorded without appreciating the documents on record and is hereby set aside.
57. It may be noted that neither the plaintiff has brought on record any document nor Smt. Jameela Khatoon has brought any document on record even to infer that sale documents executed in favour of Jeet Singh, through which the said property was transferred to Sh. Jeet Singh, were ever cancelled for non payment of remaining sale consideration in as much as PW4 Smt. Jameela Khatoon has not proved the receipt of any such notice by Sh. Jeet Singh. It cannot be sated that Sh. Jeet Singh has not paid the remaining sale consideration, therefore, Smt. Jameela Khatoon has cancelled the said documents executed in favour of Sh. Jeet Singh. Even though for the sake of arguments, though not admitted, it may be presumed that the Jeet Singh has not paid the remaining sale consideration to Smt. Jameela Khatoon, even then, Smt. Jameela Khatoon had no power to RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 36 of 56 cancel the said sale documents in as much as Section 202 of the Contract Act provided that in case any interest has been created in any property in favour of the Agent by the Principal through GPA etc said agreement of agency could not be cancelled unilaterally by the executant and the said GPA is irrevocable. In this regard, though not quoted reliance is placed upon, Shashi vs Rajesh Kumari, judgment passed in RSA No. 88/2017 by Hon'ble High Court of Delhi, wherein it has been observed as under :
"6. I may also note that once the documents Ex. PW1/1 to PW1/10 were executed by the mother Smt. Parvati in favour of the respondent's/plaintiff's husband then in law the mother had no rights to cancel documentation by her alleged documentation dated 30.8.2012. A contract for transfer of rights in a property once entered into, cannot be unilaterally cancelled by the transferor in as much as a bilateral contract can only be cancelled by a bilateral contract, and therefore the unilateral act of the mother Smt. Parvati cannot result in cancelling of documents and contract of transfer of rights in an immovable property. As per Section 202 of the Indian Contract Act, 1872, a power of attorney given for consideration operates even after the death of a person, and which deceased person is the mother Smt. Parvati in this case and who had executed the power of attorney dated 29.3.2012 in favor of the husband of the respondent/plaintiff. This legal aspect of Section 202 of the Indian Contract Act has been considered by this Court in detail in the judgment in the case of Ramesh Chand vs. Suresh Chand and Anr. 188 (2012) DLT 538 wherein the relevant paras of the judgment of the Supreme Court in the case Suraj Lamps Industries Pvt. Ltd. Vs. State of Haryana, 183 (2011) DLT 1 SC were referred and it was held that the judgment in Suraj Lamps Industries Pvt. Ltd. (supra) case protects rights under agreements to sell falling within Section 53A RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 37 of 56 of the Transfer of Property Act, 1882, power of attorneys falling under Section 202 of the Indian Contract Act, as also Wills which are executed. It is also held by this Court in the judgment in the case of Kamla Nijhawan Vs. Sushil Kumar Nijhawan and Ors., 2014 VIII AD (Delhi) 330 that when a Will is a part of the set of documents for transferring rights in an immovable property, the same has not to be classically proved like in a classic case of disputes between the natural legal heirs of a deceased testator. The first appellate court has rightly relied upon this judgment and rightly held that the trial court has wrongly distinguished the ratio of this judgment.
58. During the course of arguments, Ld. Counsel for plaintiff has relied upon Kewal Krishan Vs. Rajesh Kumar and Ors., AIR 2022 SCC 564 in order to contend that on non payment of sale consideration, the sale documents executed by Smt. Jameela Khatoon in favour of Sh Jeet Singh are void abinitio and cannot be acted upon and this aid sale document being void abinitio document need not to be required to be declared a null and void or cancelled. The said contention appears to be attractive but the same is fallacious in as much as, in the said case, the elder brother has executed GPA in favour of his younger brother, and the said younger brother executed the sale deed of one portion of that property in favour of his son, and for the remaining portion of that property executed sale deed in the name of his wife. The younger brother failed to prove the passing on of the sale consideration from his wife as well as his son for execution of the said sale deeds in their favour. Therefore, in such circumstances it was held that in the absence of consideration sale deed are null and void.
RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 38 of 56
59. However, in the present case, neither plaintiff nor Smt. Jameela Khatoon has brought on record any document that sale consideration was not paid by Jeet Singh to Smt. Jameela Khatoon and, even if, the said consideration or part of the sale consideration has not been paid by Sh Jeet Singh to Smt. Jameela Khatoon, even then Smt. Jameela Khatoon, was only entitled to seek the recovery of the remaining consideration from Sh Jeet Singh and she has not right to cancel the sale document. In this regard, though not quoted, reliance has been placed on Dahiben v. Arvindbhai Kalyanji Bhanusali, 2021(1) CLJ 397 SC, wherein, it has been observed as under :
"15.3 The Plaintiffs have made out a case of alleged non payment of a part of the sale consideration in the Plaint, and prayed for the relief of cancellation of the Sale Deed on this ground.
Section 54 of the Transfer of Property Act, 1882 provides as under :
"54. 'Sale' defined. 'Sale' is a transfer of ownership in exchange for a price paid or promised or partpaid and part promised." The definition of "sale" indicates that there must be a transfer of ownership from one person to another i.e. transfer of all rights and interest in the property, which was possessed by the transferor to the transferee. The transferor cannot retain any part of the interest or right in the property, or else it would not be a sale. The definition further indicates that the transfer of ownership has to be made for a "price paid or promised or part paid and part promised". Price thus constitutes an essential ingredient of the transaction of sale.
RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 39 of 56 In Vidyadhar v. Manikrao & Anr. (1999) 3 SCC 573 this Court held that the words "price paid or promised or part paid and part promised" indicates that actual payment of the whole of the price at the time of the execution of the Sale Deed is not a sine qua non for completion of the sale. Even if the whole of the price is not paid, but the document is executed, and thereafter registered, the sale would be complete, and the title would pass on to the transferee under the transaction. The nonpayment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground. In order to constitute a "sale", " the parties must intend to transfer the ownership of the property, on the agreement to pay the price either in praesenti, or in future. The intention is to be gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on record."
So is the ratio of A.K. Sharma (supra).
60. From the above discussion, it can be safely concluded that Smt. Jameela Khatoon has no right to revoke the sale documents exhibited in favour of Sh Jeet Singh. it may be also relevant to mention here that said Jeet Singh has transferred half of the said property (the suit property) in favour of his wife Parmeshwari Devi and Parmeshwari Devi disposed of the suit plot (a portion of the suit property) to Sh. Hari Kishan and Sh. Hari Kishan as stated above, disposed of the suit plot to defendant No. 3. The defendant No. 3 has claimed to be in possession of the suit plot since 1988, having purchased the same, during the subsistence of interim injunction, the suit, and therefore, defendant no. 3 is bound by principal of lis pendens. The plaintiff filed the suit for injunction in 1987 and status quo order was granted by ld. trial Court through order dated 18.03.1987 and the Local RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 40 of 56 Commissioner was appointed to visit the suit property for verifying the factum of possession of the suit plot. The mutation of the suit property was sanctioned in favour of Parmeshwari Devi on 19.03.1987. Parmeshwari Devi sold the suit plot to Dr. Hari Kishan on 05.02.1988 and Hari Kishan sold the suit property to Ganpat on 22.05.1988 Therefore, all the documents w.e.f. 18.03.1987 are bound by the principal of lis pendens and have been executed in the flagrant violation in term of order passed by the ld. trial Court on 18.03.1987.
61. It may also be noted that Jeet Singh transferred the suit property in favour of Parmeshwari Devi by way of sale deed. Therefore, the title of Parmeshwari Devi over the suit property was perfect and she was entitled to transfer the suit plot to the subsequent vendee and subsequent vendee, atleast, as claimed by defendant no. 3 was in possession of the suit plot since 1988, but the subsequent vendees including defendant no. 3 are entitled to the benefit of the principle of part performance under Section 53A of the Transfer of Property Act against Smt. Jameela Khatoon or any person driving any title through her. Though not quoted reliance is placed upon Mrs. Vaneeta Khanna (supra), wherein, it has been observed as under :
"13....
XXXXX Clearly therefore the judgment of the Supreme Court in the case of Suraj Lamp and Industries Private Limited (supra) does not help the defendant nos.3 to 6 but in fact goes against defendant nos. 3 to 6 because the Supreme Court has held that whatever rights are created under Section 53A of the Transfer of Property Act are protected and would be available. Also, it is further noted that in the RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 41 of 56 present case the judgment of the Supreme Court in the case of Suraj Lamp and Industries Private Limited (supra) will ex facie not apply because the rationale and the ratio of the judgment of the Supreme Court in the case of Suraj Lamp and Industries Private Limited (supra) was to prevent unregistered documents transferring title in immovable properties that too without payment of stamp duty, however in the present case the agreement to sell which has been executed is no doubt post 24.9.2001 i.e after the Act 48 of 2001 came in amending Section 53A of the Transfer of Property Act, but the Agreement to Sell dated 16.6.2004 is a duly stamped and registered document as required by law. I therefore reject this argument urged on behalf of the defendant nos.3 to 6.
However, the reliance placed upon Mac Associates (supra) and B. Koteswaramma(supra) is misplaced in view of the law laid down in the abovesaid judgment.
62. It may be relevant to mention here that plaintiff has claimed to be the previous purchaser of the suit plot from Smt. Jameela Khatoon in terms of the agreement to sell Ex.PW1/1 dated 27.11.1981 executed by Sh. A.H. Baqai husband of Smt. Jameela Khatoon in favour of the plaintiff. Thereafter, in the year 1982 Smt. Jameela Khatoon executed the GPA Ex.DW1/11 and the receipt Ex.DW1/12 in respect of the said property in favour of Sh Jeet Singh. The defendant no. 3 has claimed the suit plot to be part and parcel of the said property, however, there is no congruence between the suit plot admeasuring 250 sq. yards situated in khasra no. 10/10/2 claimed by plaintiff and the suit plot admeasuring 376 (359) sq. yards claimed RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 42 of 56 by defendant no. 3 having purchased the same through the chain of sale documents whose last vendor was Sh. Jeet Singh.
63. It may also be relevant to mention here that Smt. Jameela Khatoon was having ownership & possession of 1000 sq. yards (one bigha) falling in khasra no.10/10/2 and she was having no other land in the above said khasra, The said document executed by Smt. Jameela Khatoon in favour of Sh. Jeet Singh depicts that an area of 750 sq. yards from khasra no. 10/10/2 has been transferred in the name of Jeet Singh meaning thereby Smt. Jameela Khatoon was sure that she had already transferred an area of 250 sq. yards out of khasra no.10/10/2 to plaintiff, therefore, she has been left with only 750 sq. yards in khasra no.10/10/2 admeasuring one bigha (100 yards only). The testimony of PW4 Smt. Jameela Khatoon is also to this effect that she sold the suit plot admeasuring 250 sq. yards falling in khasra no. 10/10.2 and the remaining land admeasuring 750 sq. yards in khasra no. 10.10.2 to Sh. Jeet Singh to plaintiff.
64. From the perusal of the sale document executed by Smt. Jameela Khatoon in favour of Jeet Singh, it transpired that Smt. Jameela Khatoon was having 1 bigha of land in khasra no. 10/10/2 and having disposed of 250 sq. yards to the plaintiff through agreement to sell dated 27.11.1981 (Ex. PW1/1), she was left with 750 sq. yards in khasra no.10/10/2 which was transferred to Jeet Singh in terms of above said sale documents executed in favour of Jeet Singh by Smt. Jameela Khatoon. The details of the said property reads in GPA are as under: RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 43 of 56 "Whereas, the said executant is the actual rightful owner and in possession amongst others of a piece of land measuring 2 Bigha i.e. khasra no. 1010/2 (15 Biswas) 10/11 (1 Bigha 5 Biswas) situated in the area of village Najafgarh, New Delhi.
Now the said executant do hereby authorise the said attorney to manage and control, and transfer the above said property under his own signatures on behalf of the executant and to do the following acts and deeds."
65. So far as the contention of the counsel for the plaintiff regarding the description of the suit plot, its location is not congruent to the property claimed by the defendant no. 3 as the suit plot in terms of the sale documents is concerned, suffice is to say that location of the suit plot in the sale documents of plaintiff namely agreement to sell Ex.PW1/1 is as under : "Now this agreement witnesseth as under: North: East:
South: West: Road"
A bare perusal of this description of the suit plot claimed by plaintiff depicts that no description of the adjoining plots to the suit plot has been detailed except the location of the metaled road on the western side of the suit plot is mentioned.
66. Now, let us see the location of the suit plot transferred by Smt. Parmeshwari Devi in favour of Sh. Hari Kishan as detailed in the said sale documents including, GPA dated 05.02.1988 the relevant portion of the said description of the plot sold by Parmeshwari Devi to Sh. Hari Kishan is reproduced as under: RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 44 of 56 "whereas my said attorney is empowered to manage and control in all respects regarding plot no.... khasra no.376 sq. yards out of khasra no.10/10/2 and 10/11 situated in the revenue estate of plot Maksudabad, Najafgarh extension" and bounded as under: East Gali West Main metal Road North Plot of Sukh Dayal South Plot of Prem Lata"
Same is the description of the suit plot in the subsequent sale documents dated 20.05.1988 executed by Sh. Hari kishan in respect of the suit plot in favour of the defendant no. 3.
67. It may be noted that the details of the description of the suit plot claimed by defendant no. 3 has been specifically given, however, the description of the exact khasra number where the suit plot is situated is conspicuous by its absence in as much as the suit plot claimed by defendant admeasuring 376 sq. yards is falling in khasra no.10/10/2 and 10/11, whereas the suit plot as contended by plaintiff is falling in khasra no.10/10/2. Therefore, from the comparison of the details of the suit plot incorporated in the sale documents relied by the plaintiff with the details/description of the suit plot incorporated in the sale documents relied upon by defendant no. 3, it cannot be stated that the description of these plots have any congruence.
68. However, as stated above and for the sake of repetition, it may be noted that PW1 and his wife PW4 have deposed in categoric terms that a suit plot admeasuring 250 sq. yds. falling in khasra no.
RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 45 of 56 10/10/2 (1 Bigha) was sold to plaintiff and the remaining portion of said khasra admeasuring 750 sq. yds. was sold to Sh. Jeet Singh, which is the part of the said property.
69. From the above discussion, it can be safely concluded that there is no congruence in the suit plot admeasuring 250 sq. yards falling in khasra no. 10/10/2 claimed by the plaintiff to have been purchased from Smt. Jameela Khatoon the original owner and the suit plot admeasuring 376 (359) sq. yards falling in khasra no. 10/10/2 and 10/11 claimed by defendant no. 3 having purchased the same from Sh. Hari Kishan who had purchased the suit plot from Smt. Parmeshwari Devi during the subsistence of permanent injunction passed in the suit by ld. Trial Court.
70. Therefore, defendant no. 3 be the owner of the suit plot claimed by him having purchased through chain of the sale documents of Smt. Parmeshwati Devi and her husband Sh. Jeet Singh, but as observed above, it is categoric case of plaintiff, testified through PW4 Smt. Jameela Khatoon and her husband PW1 A.H. Baqai that the suit plot was sold admeasuring 250 sq. yards by Smt. Jameela Khatoon through her husband A.H. Baqai and the remaining portion of land admeasuring 750 sq. yards falling in khasra no. 10/10/2 was sold to Sh. Jeet Singh, through whom defendant no. 3 has claimed title in respect of the suit plot. As such, the plot of defendant no. 3 has no congruence with the suit plot owned by plaintiff.
RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 46 of 56
71. So far as the contention of ld. counsel for the plaintiff that Sh. Ganpat died during the pendency of the suit and he has disposed off the suit plot to his LRs as detailed in the foregoing paras of this judgment, therefore, he has no right to file the present appeal is concerned, suffice is to say that Hon'ble Supreme Court in Jaskirat Datwani (supra) in para no. 5 has observed as under :
"5) It has been held by this Court in the case of Dhurandhar Prasad Singh v. Jai Prakash University and ors. reported in JT 2001 (5) SC 578, that Order 22, Rule 10 provides for cases of assignment, creation and devolution of interest during the pendency of a suit. It is held that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of suit is devolved upon another during its pendency. It is held that such a suit may be continued with the leave of the Court by or against the person upon whom such interest has devolved. But, if no such step is taken, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by the decree. Thus the Appellant would continue to be bound by the decree or order which has been passed in the suit, particularly when she had knowledge of the proceedings."
Therefore, the LR of the deceased defendant no. 3 are entitled to pursue the appeal as per the mandate of law laid in Jaskirat (supra), therefore, this contention deserves to be rejected and is hereby rejected. From the above discussion, it can be safely concluded that plaintiff is owner of the suit plot admeasuring 250 sq. yards falling in khasra no. 10/10/2 having purchased the same from Smt. Jameela Khatoon by virtue of Section 53A of the Transfer of Property Act. The defendant no. 3 has also proved on record that he RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 47 of 56 has purchased the plot admeasuring 376 (359) sq. yards falling in khasra no. 10/10/2 and 10/11 in terms of sale documents dated 20.05.1988 through the chain of sale documents whose last vendor was Sh. Jeet Singh and the original owner was Smt. Jameela Khatoon. Therefore, defendant no. 3 is also held to be the owner of the said plot by virtue of Section 53A of the Transfer of Property Act. However, there is no congruence between the suit plot claimed by the plaintiff and the said plot (which is claimed to be the suit plot) by defendant no.
3. The defendant no. 3 led no evidence that there is any congruence between the suit plot claimed by plaintiff and the plot claimed by defendant no. 3 as the suit plot. Therefore, Point of determination no.
(i) is decided in favour of the plaintiff, point of determination no. (ii) is decided in favour of defendant no. 3 and point of determination no. (iii) is decided in favour of the plaintiff.
POINT OF DETERMINATION NO. (iv), (v) & (vi)
72. These points of determination are overlapping each other and are disposed off by this common order. It may be noted that while recording finding under the point of determination (i),(ii) and (iii) it has been held that there is no congruence between the suit plot admeasuring 250 sq. yards falling in khasra no. 10/10/2 claimed by plaintiff having purchased from Smt. Jameela Khatoon and the plot admeasuring 376(359) sq. yards falling in khasra no. 10/10/2 & 10/11 claimed by defendant no. 3 having purchased from the chain of sale documents through Sh. Jeet Singh. However, even if, for the sake of arguments, it is presumed that the suit plot claimed by plaintiff and the RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 48 of 56 plot claimed by defendant no. 3 are congruent, though not admitted, the question arises as to whether plaintiff has priority right over the suit plot, than that of the right of defendant no. 3 over the suit plot.
73. In this regard, it may be noted that plaintiff has proved that he has purchased the suit plot admeasuring 250 sq. yards falling in khasra no. 10/10/2 in terms of the sale documents Ex. PW1/1 to Ex. PW1/3 and possession was handed over to plaintiff as per the deposition of PW1 and PW4. The defendant no. 3 has purchased the suit plot admeasuring 376(359) sq. yards falling in khasra no. 10/10/2 and 10/11 in terms of the sale documents dated 20.05.1988 through the chain of sale documents whose last vendor, was Sh. Jeet Singh. It may also be noted that all the sale documents dated 05.02.1988, through which the suit plot was purchased by Sh. Hari Kishan and the sale agreement dated 20.05.1988 through which the suit plot was purchased by defendant no. 3 are bound by principle of lis pendens in as much as the said sale has been effected during the subsistence of interim injunction.
74. It may be noted that Hon'ble High Court of Delhi in Vaneeta Khanna (supra) has interpreted the provisions of Section 48 of the Transfer of Property Act, which are reproduced as under :
"8. At this stage Section 48 of the Transfer of Property Act, 1882 requires to be referred to. This section provides that when with respect to one property documents of transfer of rights therein are executed at different points of time, then, earlier documents would prevail over later documents.
RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 49 of 56 Section 48 of the Transfer of Property Act, 1882 reads as under: "48. Priority of rights created by transfer. Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created."
9. When a person owns a property he owns a bundle of rights i.e. an owner may let out the propertyone right, he may then mortgage the same second right, and then he may sell whatever rights remaining, in him as a mortgagor of a tenanted propertya third right. In my opinion, rights which are talked of in any property which is the subject matter of Section 48 of the Transfer of Property Act, would include rights either in whole or in part of the property and either entire ownership rights or even part rights in the property. Section 48 of the Transfer of Property Act specifically uses the expression rights in an immovable property and not complete ownership rights indicating that once different rights exist in an immovable property; qua one right in an immovable property which is transferred at one earlier point of time, the said earlier transaction will prevail over a right of the same nature created later qua the same immovable property. For example, if a tenancy right is created with respect to one floor in a property on one date and thereafter tenancy rights are again created with respect to the same floor on a later date, then the earlier tenancy rights created will prevail over the later created tenancy rights. Tenancy rights are obviously lesser rights than the complete ownership rights in a suit property. Therefore, if valid rights are created as per the doctrine of part performance of Section 53A of the Transfer of Property Act in favour of the plaintiff no.1, even if thereafter there are rights created in the suit property in RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 50 of 56 favour of defendant nos.3 to 6 in terms of the later documents relied upon by them, such later documents are of no purport and effect because once rights have already been transferred by an earlier set of documents, merely because subsequent set of documents are created the said later documentation cannot transfer rights ie nemo dat quod non habet."
75. In the same manner in Nagalinga Nadar v. Mehrunisa Begum & Anr. (1980) 2 MLJ 534, it has been observed as under :
"Section 48 of Transfer of Property Act is founded upon the equally important principle that no man can convey a better title than what he has. If a person had already effected a transfer, he cannot derogate from his grant and deal with the property free from the rights created under the earlier transaction. His prior title of absolute and free owner is curtailed or diminished by rights already created under the earlier transaction. Section 48 of the Transfer of Property Act. is absolute in its terms and does not contain any protection or reservation in favour of a subsequent transferee who has no knowledge of the prior transfer. Knowledge or noknowledge, a subsequent transferee cannot claim any priority as against an earlier transferee. Whenever the Legislature desires to protect the rights of a transferee in good faith for consideration, specific provision to that effect is madeVide for instance, Section 27 of the Specific Relief Act, 1877 and Sections 38 to 41 of the Transfer of Property Act. In all other cases, the wellsettled rule that a man cannot derogate from his grant will have to be applied."
76. From a perusal of the abovesaid ration of law laid down by superior courts, it can be safely concluded that plaintiff is having priority rights over the suit plot than that of the right of defendant no. 3 RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 51 of 56 claimed in respect of the suit plot being an earlier transferee of the suit plot from the original owner of the suit plot namely Smt. Jameela Khatoon, through whom Sh. Jeet Singh has purchased the said property including the portion of 750 sq. yards situated in khasra no. 10/10/2 and defendant no. 3 has purchased the suit plot admeasuring 376(359) sq. yards falling in khasra no. 10/10/2 and 10/11 from the chain of sale documents from the side of Sh. Jeet Singh. Therefore, even if, there is any congruence between the suit plot of the plaintiff and the plot claimed by defendant no. 3, which is alleged to be congruent to the suit plot, plaintiff is owner of the suit plot by virtue of priority rights as provided under Section 48 of the Transfer of Property Act.
77. So far as the claim of the defendant no. 3 over the suit plot by virtue of Section 41 of the Transfer of Property Act, suffice is to say that the sale transaction, through which the suit plot is purchased by defendant no. 3 is during the subsistence of the principle of lis pendens, therefore, being bound by principle of lis pendens, defendant no. 3 cannot seeks the benefit of doctrine of ostensible owner/bonafide purchaser. In this regard, though not quoted reliance is placed upon judgment G.T. Girish v. Y Subba Raju (D) By Lrs, passed by Hon'ble Supreme Court of India in Civil Appeal no. 380/2022, wherein it has bee observed as under :
"93. It is further important to notice that when a transaction is done, lis pendens or pending a case, the transaction is, as such, not annulled. The transaction is, in other words, not invalidated. In fact, as between the transferor and the RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 52 of 56 transferee, it does not lie in the mouth of the transferor to set up the plea of lis pendens to defeat the disposition of property. Equally, the Principle of Lis Pendens is, not to be confounded with the aspect of good faith or bonafides. In other words, the transferee or the beneficiary of the property, which is disposed of by a party, cannot set up the case that he acted bonafide or in good faith. This enables the court and the parties in a Suit or a proceeding, which otherwise is in conformity with requirements of Section 52, to proceed in the matter on the basis that the adjudication by the court, will not, in any way, be subverted or delayed, when the day of final reckoning arrives. "
Therefore, defendant no.3 cannot claim the benefit of bonafide purchaser under Section 41 of the Transfer of property Act.
78. So far as the contention of ld. counsel for the plaintiff that plaintiff is atleast having better title over the suit plot than that of the right of the defendant no. 3 claimed over the suit plot through sale documents relied upon by defendant no. 3 is concerned, suffice is to say that in Ramesh Chand (supra) it was observed that right to possession of immovable property arises not only from a complete ownership right in the property but having a better title or arises not only from the 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. So is the ratio of Suresh Kumar (supra).
79. I found also legal force in the submission made by ld. counsel for the plaintiff by placing reliance upon Hukam Singh v.
RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 53 of 56 Gulshan Kumar Gambhir, 208(2014) DLT 68 that plaintiff being having title to the suit plot, therefore, can seek possession of the suit plot from defendant no. 3 in as much in that judgment the vendee has been in possession of the immovable property by virtue of doctrine of part performance under Section 53A of the Transfer of Property Act and, thereafter, vendee parted with a portion of the said immovable property to his vendor, and suit for possession on the basis of such sale documents, which were in the nature of part performance under Section 53A of Transfer of Property Act, was decreed and following observations were made :
"19. The law permits a claim for possession for immovable property being made either on the basis of prior possession or on the basis of title. In the facts of the present case, the respondent/plaintiff has proved having entered into an agreement for purchase of the said property from the appellant/defendant and has further proved having been put into possession of the said property by the appellant/defendant in pursuance of such agreement. The respondent/plaintiff has further proved having thereafter granted license to the appellant/defendant to use a part of the second floor of the property and having been dispossessed by the appellant/defendant from the remaining part of the second floor. Though undoubtedly the respondent/plaintiff did not claim specific performance of the said agreement and resultantly does not till date have title to the property but on the other hand the appellant/defendant also has not taken any steps whatsoever for recovery of possession from the respondent/plaintiff of the remaining property of which the respondent/plaintiff is admittedly in possession. Though the Supreme Court in Suraj Lamp and Industries Private Limited Vs. State of Haryana (2012) 1 SCC 656 has set aside the judgment of the Division Bench of this RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 54 of 56 Court in Asha M. Jain supra but it cannot be lost sight of that the Division Bench of this Court in Asha M. Jain supra had held that judicial notice can be taken of the transactions of immovable properties in the city of Delhi through the medium of agreement to sell, power of attorney, Will etc. clubbed with delivery of possession under Section 53A of the Transfer of Property Act. All that the Supreme Court has held is that the same does not amount to vesting of title in the property. Undoubtedly so. However, the judgment of the Supreme Court in Suraj Lamp and Industries Private Limited supra does not interfere with the rights of possession in the property under Section 53A of the Transfer of Property Act. I have wondered that when the law permits a claim for possession of immovable property being made on the basis of prior possession, what is the impediment to such a claim for possession being made against the title holder of the property who forcibly dispossesses the person to whom he had agreed to sell the property and to whom he has delivered possession thereof in part performance of the Agreement to Sell. I am unable to find any such impediment. "
80. From the abovesaid discussion, it can be safely concluded that despite the fact that there is no congruence between the suit plot claimed by the plaintiff and the plot as claimed by defendant no. 3 as discussed in the foregoing paras of this judgment, however, for the sake of arguments, though not admitted, if there is any such congruence, between the suit plot of plaintiff and plot claimed by defendant no. 3, even then plaintiff is having priority right over the suit plot by virtue of Section 48 of the Transfer of Property Act and defendant no. 3 is not found entitled to Section 41 of the Transfer of Property Act. Furthermore, even if, the right of plaintiff arising under RCA no. 09/2018 (06/2018) Chand Ram v. Manoj Dhingra Page no. 55 of 56 Section 48 of Transfer of Property Act and Section 53A of Transfer of Property Act, are put aside even then, plaintiff is having better title over the suit plot as per the mandate of law laid down by Superior Courts, plaintiff has rightly been found entitled to the possession of the suit plot. Accordingly, these points of determination are decided in favour of the plaintiff and against defendant no. 3.
81. Therefore, I agree with the findings so recorded by the ld. Trial Court, through with somewhat different reasoning. Therefore, this appeal being devoid of merits deserves to be dismissed and is hereby dismissed and disposed off accordingly.
Trial court record be sent back along with copy of this judgment.
Decree sheet be drawn accordingly.
Appeal file be consigned to the record room.
Digitally
signed by
VIJAY VIJAY KUMAR
Announced and dictated on KUMAR
DAHIYA
Date:
23rd Day of May 2022. DAHIYA 2022.06.22
16:33:15
+0530
(V.K. DAHIYA)
ADDL.DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
RCA no. 09/2018 (06/2018)
Chand Ram v. Manoj Dhingra
Page no. 56 of 56