Delhi District Court
M/S Om Prakash & Ors. vs . Harjeet Lal on 27 September, 2018
M/s Om Prakash & Ors. Vs. Harjeet Lal
Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
IN THE COURT OF MS. JYOTI KLER, ADDL. DISTRICT JUDGE05,
ROOM NO. 605, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Suit No. 7442/16
Case ID No. DLST010003962012
Digitally
In the matter of signed by
1. Om Prakash JYOTI JYOTI KLER
Date:
S/o Late Sh. Daulat Ram
R/o G363, Dakshinpuri
KLER 2018.10.03
19:25:54
New Delhi110062 +0530
2. Kamlesh
W/o Om Prakash
R/o G363, Dakshinpuri
New Delhi110062 .............Plaintiffs
Versus
Legal heirs of Harjeet Lal (Since Deceased)
1. Ms. Badami Devi
W/o Late Sh. Harjet Lal
R/o G363, Dakshinpuri,
New Delhi110062
2. Anil Kumar
S/o Late Sh. Harjeet Lal
R/o G363, Dakshinpuri
New Delhi - 110062 ..............Defendants
Suit No.7442/16 & Suit No. 296/18 Page 1 of 41
M/s Om Prakash & Ors. Vs. Harjeet Lal
Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
Date of Institution : 14.08.2012
Date of reserving the judgment : 22.09.2018
Date of pronouncement : 27.09.2018
Decision : Dismissed
And
Suit No. 296/18
Case ID No. DLST010007092018
In the matter of
1. Ms. Badami Devi
W/o Late Sh. Harjeet Lal
R/o G363, Dakshinpuri,
New Delhi110062
2. Anil Kumar
S/o Late Sh. Harjeet Lal
R/o G363, Dakshinpuri
New Delhi - 110062 .............Plaintiffs
Versus
1. Om Prakash
S/o Late Sh. Daulat Ram
R/o 7576, Harijan Basti
Banjara Camp, Khanpur
New Delhi110062
Suit No.7442/16 & Suit No. 296/18 Page 2 of 41
M/s Om Prakash & Ors. Vs. Harjeet Lal
Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
2. Kamlesh
W/o Om Prakash
R/o 7576, Harijan Basti
Banjara Camp, Khanpur
New Delhi110062 ..............Defendants
Date of Institution : 04.09.2015
Date of reserving the judgment : 22.09.2018
Date of pronouncement : 27.09.2018
Decision : Decreed
Composite Judgment
Introduction
1. This judgment shall dispose off two cross suits. One suit
has been filed in the year 2012 for Declaration and Possession
of Ground Floor, First Floor and Second Floor of the property
bearing no. G363, Dakshinpuri, New Delhi110062, measuring
25 square yards (hereinafter referred as "the suit property").
This suit shall be referred as "the first suit" hereinafter. Another
suit has been filed for possession of third floor of the suit
property and injunction. This suit shall be referred as "the
second suit" hereinafter.
Suit No.7442/16 & Suit No. 296/18 Page 3 of 41
M/s Om Prakash & Ors. Vs. Harjeet Lal
Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
2. Om Prakash and Kamlesh are the husband and wife.
Badami Devi is the sister of Om Prakash. Anil Kumar is the son
of Badami Devi and nephew of Om Prakash. Badami Devi and
Anil Kumar are the legal heirs of Late Harjeet Lal, who was the
brother in law of Sh. Om Prakash, husband of Badami Devi &
father of Anil Kumar.
3. The first suit has been filed by Om Prakash and Kamlesh
against Harjeet Lal, who died and his legal heirs i.e Badami Devi
and Anil Kumar were impleaded vide order dated 23.07.2013.
The second suit has been filed by Badami Devi and Anil Kumar
against Om Prakash, Kamlesh and one Nathu Ram. Nathu Ram
is the brother in law of Om Prakash & Badami Devi, being
married to their sister Geeta Devi. He was deleted from the
array of parties vide order dated 04.09.2015. Harjeet Lal, Nathu
Ram and Geeta Devi shall be referred with their respective
names, wherever required.
4. In this judgment, the parties shall be referred as their
status is in the first suit i.e. Om Prakash & Kamlesh shall be
Suit No.7442/16 & Suit No. 296/18 Page 4 of 41
M/s Om Prakash & Ors. Vs. Harjeet Lal
Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
referred as plaintiff no. 1 & plaintiff no. 2 respectively, &
plaintiffs collectively, and Badami Devi & Anil Kumar shall be
referred as defendant no.1 & defendant no.2 respectively, &
defendants collectively.
5. It is mentioned for the purpose of clarity that pleadings in
both the suits are common. Facts of one suit is the defence of
another suit.
Case of the Plaintiffs
6. Case of the plaintiffs is that they purchased the suit
property for their personal use. Certain disputes arose between
them after which plaintiff no. 2 left the matrimonial house and
many litigations started. Plaintiff no. 1 fell seriously sick during
this time and there was no one to take care of him. In such
circumstances, defendant no. 1 and Ms. Geeta Devi approached
him under the pretext of taking care of him. They entered into
the suit property and started living with him. They also
persuaded him to execute a power of attorney in favour of their
husbands Harjeet Lal and Nathu Ram. The plaintiff no. 1
executed a registered power of attorney in favour of these two
Suit No.7442/16 & Suit No. 296/18 Page 5 of 41
M/s Om Prakash & Ors. Vs. Harjeet Lal
Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
persons on 18.01.2006 and no consideration was received by
him. Plaintiff no. 1 & plaintiff no.2 later entered into a
compromise and started living at third floor of the suit property
because sisters of plaintiff no.1 i.e. defendant no. 1 and
Ms.Geeta Devi, were residing at other floors. Plaintiffs requested
Harjeet Lal and Nathu Lal to vacate the suit property. Nathu
Ram vacated, however, Harjeet Lal did not vacate and instead
filed a false complaint against the plaintiffs on 14.05.2010. He
also filed a suit for injunction in the same year against the
plaintiffs. On 23.06.2012, plaintiffs canceled the power of
attorney dated 18.01.2006 and asked Sh. Harjeet Lal to vacate
the suit property. When he did not vacate, plaintiffs instituted
the first suit for declaring that the registered Power of Attorney
dated 18.01.2006 is null and void, with consequential relief for
possession of ground floor, first floor and second floor of the
suit property.
7. Defendants filed second suit after filing of first suit by the
plaintiffs. The second suit has been resisted by the plaintiffs
with same facts as narrated above. They also state in the written
Suit No.7442/16 & Suit No. 296/18 Page 6 of 41
M/s Om Prakash & Ors. Vs. Harjeet Lal
Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
statement of second suit that it is barred by rejudicata and
limitation.
Case of the Defendants
8. Defendants denied that the suit property was purchased
by plaintiff no. 1 & plaintiff no. 2. It is case of the defendants
that the suit property was purchased by plaintiff no. 1 with his
deceased brother. They admitted that there was a matrimonial
dispute between plaintiff no. 1 & plaintiff no. 2, and that the
plaintiff no.2 was not residing with plaintiff no. 1 when power
of attorney dated 18.01.2006 was executed. It is however
denied that plaintiff no. 1 was sick at that time. The defendants
state that plaintiff no. 1 sold the suit property to their
predecessor in interest i.e. Harjeet Lal and started living at 75
76, Banjara Camp, Harijan Basti, Khanpur, New Delhi. On
02.05.2010, plaintiff no. 2 trespassed into the third floor of the
suit property at about 12:00 Noon and illegally occupied the
same. Late Harjeet Lal had gone to Rajasthan at that time. On
03.05.2010 he returned and efforts for settlement were made
with the help of Nathu Ram on 05.05.2010 but to no avail.
Hence, Harjeet Lal filed a complaint on 14.05.2010. A suit for
Suit No.7442/16 & Suit No. 296/18 Page 7 of 41
M/s Om Prakash & Ors. Vs. Harjeet Lal
Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
mandatory injunction was immediately filed thereafter. It is
stated by the defendants that Nathu Ram was never in
possession of the suit property. The defendants have however
raised an objection with respect to the pecuniary jurisdiction
stating that the value of the suit property is Rs.80,000/ and
therefore first suit lies before the Ld. Civil Judge.
9. In addition to what has been stated in the written
statement of the first suit, defendants have stated in the plaint
of the second suit that on 08.07.2010 plaintiffs had threatened
to implicate Late Harjeet Lal in false cases if he did not agree to
the partition of the suit property. A suit for Mandatory
Injunction was filed by Harjeet Lal in the year 2010 that was
dismissed on technical grounds of non maintainability. Plaintiffs
tried to sell third floor of the suit property on 07.07.2015,
hence, defendants filed the suit for possession of third floor of
the suit property and injunction against the plaintiffs.
Replication
10. No replication was filed in the first suit. In the second suit,
Suit No.7442/16 & Suit No. 296/18 Page 8 of 41
M/s Om Prakash & Ors. Vs. Harjeet Lal
Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
contents of the written statement have been denied and plaint
has been reiterated.
Issues
11. Issue were framed in the first suit on 30.07.2015. These
are as follows:
i) Whether this court has no territorial jurisdiction to try the
present suit as alleged in the preliminary objection No. 2 in the
written statement? OPD
ii) Whether the plaintiff has no cause of action to institute the
present suit? OPP
iii) Whether the plaintiff is entitled to the decree of declaration,
as claimed for?OPP
iv) Whether the plaintiff is entitled to the decree of possession,
as claimed for?OPP
v) Relief.
12. Issues were framed in the second suit on 14.02.2017,
which are as follows:
i) Whether the plaintiffs are entitled to decree of possession in
the respect of the suit property against the defendant as prayed in
clause A? OPP
ii) Whether the plaintiffs are entitled to decree of permanent
injunction against the defendants seeking restrainment from
creating third party interest in the suit premises as prayed in
clause B? OPP
iii) Relief.
Suit No.7442/16 & Suit No. 296/18 Page 9 of 41
M/s Om Prakash & Ors. Vs. Harjeet Lal
Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
Consolidation
13. It shall be relevant to mention here that first suit was filed
before this Court while the second suit was filed before Ld. Civil
Judge. Considering common pleadings in the two cases, Ld.
Civil Judge had requested Ld. District Judge to transfer the suit
pending before that Court. Vide order dated 22.01.2018, Ld.
District Judge, transferred the second suit to this Court for
holding trial with the first suit. PE in the first suit as well as in
the second suit was over by this time. On 16.02.2018, it was
submitted by Ld. Counsels for the parties that PE in one case
may be read as DE in another case, and both cases may be fixed
for final arguments. Considering the common pleadings and
common evidence, order in terms of submissions was passed on
the same date and matter was fixed for final arguments.
Plaintiffs' Evidence
14. Plaintiffs have examined three witnesses in support of
their case. PW1 is plaintiff no. 2, who has reiterated contents of
the plaint by way of evidence affidavit Ex.PW1/A. PW2 is
plaintiff no.1, who has been examined by way of evidence
Suit No.7442/16 & Suit No. 296/18 Page 10 of 41
M/s Om Prakash & Ors. Vs. Harjeet Lal
Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
affidavit Ex.PW2/A. Nathu Ram has been examined as PW3 by
way of evidence affidavit Ex.PW3/A.
15. Only two documents were relied upon by the plaintiffs in
support of their case i.e. Ex.PW1/1 which is the notice dated
23.06.2012 vide which Power of Attorney dated 18.01.2006
was cancelled, and Ex.PW1/2 which is the postal receipt.
16. PW3 though had tendered his evidence affidavit in favour
of the plaintiffs, but did not support the case of the plaintiffs
during cross examination by the defendants. He was then cross
examined by the plaintiffs also. The other two witnesses were
also cross examined in detail.
Defendants' Evidence
17. Defendants examined two witnesses i.e. Badami Devi as
PW1 in second suit and Anil Kumar as PW2 in the second suit
by way of evidence affidavits Ex.PW1/1 and Ex.PW2/A
respectively. They also reiterated the contents of their written
statement in the first suit and plaint in the second suit. They
Suit No.7442/16 & Suit No. 296/18 Page 11 of 41
M/s Om Prakash & Ors. Vs. Harjeet Lal
Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
relied upon the following documents:
S.No. Description of document Exhibit number
1. Death Certificate of Harjeet Lal Ex.PW1/A
2. General Power of Attorney executed Ex.PW1/B
by Plaintiff no.1 in favour of Harjeet
Lal and Nathu Ram
3. Affidavit of plaintiff no. 1 to the Ex.PW1/C
effect that he had sold the suit
property to Harjeet Lal and Nathu
Ram.
4. Site plan of the suit property Ex.PW1/D
5. Complaint dated 14.05.2010 Mark E
6. Order of Ld. Civil Judge in the suit Mark F
for Mandatory Injunction, dismissing
it for non maintainability on
22.12.2014.
7. Power of Attorney executed by Ex.PW1/G
Nathu Ram in favour of defendant
no.1.
18. These two witnesses were also cross examined in detail.
19. The plaintiffs placed on record certified copy of the
evidence affidavit and cross examination of Late Harjeet Lal,
Suit No.7442/16 & Suit No. 296/18 Page 12 of 41
M/s Om Prakash & Ors. Vs. Harjeet Lal
Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
that was recorded in the Suit for Mandatory Injunction
instituted by him. These documents were taken on record in the
second suit vide order dated 10.07.2018, with consent of the
defendants.
Final Arguments
20. Ld. Counsel for the plaintiffs argued that no title has
devolved upon the defendants through the General Power of
Attorney dated 18.01.2006 as it is not a valid mode of transfer
of property. No consideration was paid to the plaintiff no. 1. It
is contended that there are material contradictions in the
statement of Nathu Ram and Harjeet Lal regarding payment of
consideration. Harjeet Lal says that entire consideration was
paid by him while Nathu Ram says that he paid 50% of the
consideration amount. It is contended that the General Power of
Attorney was executed by practicing fraud upon the plaintiff
no.1 and this Court may declare it to be null and void.
21. In support of his contentions Ld. Counsel for the plaintiff
relied upon following judgments:
i) Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana
Suit No.7442/16 & Suit No. 296/18 Page 13 of 41
M/s Om Prakash & Ors. Vs. Harjeet Lal
Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
2012 AIR (SC) 206:
"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 the grantor, which when executed will be
binding on the grantor as if done by him (see section 1A and section 2 of the
Power of Attorney Act, 1882). It is revocable or terminable at any time unless
it is made irrevocable in a manner known to law. Even as irrevocable
attorney does not have the effect of transferring title to the grantee. In State
of Rajasthan Vs. Basant Nehata 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 favour of the
agent. The agent derives a right to use his name and all acts, deeds
and things done by 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 power of attorney in terms of provisions of the Contract
Act as also the PowersofAttorney Act is valid. A power of attorney,
we have noticed hereinbefore, is executed by the donor so as to enable
the donee to act on his behalf. Except in cases where power of
attorney is coupled with interest, it is revocable. The donee 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
power granted under the power of attorney and convey title on behalf of the
grantor.
Suit No.7442/16 & Suit No. 296/18 Page 14 of 41
M/s Om Prakash & Ors. Vs. Harjeet Lal
Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
................
16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis of mutations in 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 transactions known as GPA sales.
17. It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is also submitted that the decision should be made applicable prospectively to avoid hardship.
18. We have merely drawn attention to and reiterated the wellsettled legal position that SA/GPA/WILL transactions are not 'transfers' or 'sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said 'SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under section 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to 'SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be Suit No.7442/16 & Suit No. 296/18 Page 15 of 41 M/s Om Prakash & Ors. Vs. Harjeet Lal Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
disturbed, merely on account of this decision.
19. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding 'SA/GPA/WILL transactions' are not intended to apply to such bonafide/genuine transactions."
ii) Beetashok Chatterjee Vs. Lovely Chanda & Anr.:214 (2014) DLT 328:
"10. 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 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.
11. In State of Rajasthan v. Basant Nehata, VI (2005) SLT 609 =III (2005) CLT 283 (SC)=2005 (12) SCC 77, the Supreme Court held that:
"A grant of power of attorney is essentially governed by Chapter X of Suit No.7442/16 & Suit No. 296/18 Page 16 of 41 M/s Om Prakash & Ors. Vs. Harjeet Lal Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
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 favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by 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 PowersofAttorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee is exercise of his power under such power of attorney only acts in place of the donor subject to course to the powers granted to him by reasons 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 the guarantor."
22. Ld. Counsel for the defendants argued that the plaintiffs have not denied the execution of Power of Attorney. The amount of consideration paid to the plaintiff no.1, and the fact that it was paid, is the consistent case of the defendants and there are no contradictions on this point. It is argued that an interest was created in the suit property by execution of General Power of Attroney with consideration which cannot now be Suit No.7442/16 & Suit No. 296/18 Page 17 of 41 M/s Om Prakash & Ors. Vs. Harjeet Lal Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
revoked in view of Section 202 of the Contract Act, 1872. It is further contended that the plaintiffs are trespassers in the suit property and they cannot take benefit of their own wrong.
23. Ld. Counsel for the defendants relied upon the judgment of Hon'ble High Court of Delhi in Hardip Kaur Vs. Kailash & Anr. : RFA No. 648/06 decided on 18.05.2012, wherein Hon'ble High Court of Delhi held as below:
24. "Findings applying the aforesaid principles of law to the facts of the present case, the findings of this Court are as under: ...........
(ii) The agreement to sell of itself may not create any interest in the property under Section 54 of the Transfer of Property Act, 1882 but the agreement along with the payment of the entire sale consideration, handing over the possession, execution of the receipt, affidavit, will, indemnity bond and irrevocable General Power of Attorney create "an interest in the property" within the meaning of Section 202 of the Contract Act.
(iii) The words "an interest in property which forms the subject matter of the agency" in Section 202 of the Contract Act, 1872 are of wider amplitude than the words "an interest in or charge on such property" in Section 54 of the Transfer of Property Act, 1882. Where the seller has received the sale consideration in pursuance of the agreement to sell and has delivered the possession to the purchaser, the purchaser would have interest in the property within the meaning of Section 202 of the Contract Act.
............
vi) The agreement to sell, General Power of Attorney, receipt, affidavit, will and indemnity bond executed contemporaneously Suit No.7442/16 & Suit No. 296/18 Page 18 of 41 M/s Om Prakash & Ors. Vs. Harjeet Lal Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
constitute one transaction and they have to be read and interpreted together as if they are one document. The true nature of the transaction between the parties is the agreement to transfer the suit property by the plaintiff to defendant no.1. There is no clause in any of the documents that the plaintiff can claim back the possession of the suit property in any situation. Rather, the plaintiff has agreed not to cancel/revoke any document and not to claim back the possession under any circumstances. The plaintiff is, therefore, not entitled to recover the possession of the suit property. If the plaintiff was aggrieved by any unauthorized construction, the plaintiffs remedy was to seek injunction to stop the alleged unauthorized construction or to have approached the Municipal Authorities to take action against the unauthorized construction."
Appreciation of Evidence
24. It is admitted case of the parties that a registered Power of Attorney was executed by the plaintiff no.1 in favour of Late Sh. Harjeet Lal, Predecessor in interest of defendants on 18.01.2006. It is also admitted case of the parties that there was matrimonial dispute between plaintiff no.1 & plaintiff no.2 due to which plaintiff no. 2 had left the matrimonial house for some time.
25. Respective evidence has been led by the parties on the facts in dispute. Discussion follows.
Suit No.7442/16 & Suit No. 296/18 Page 19 of 41M/s Om Prakash & Ors. Vs. Harjeet Lal Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
Plaintiff being Unwell and Drunk
i) It is case of the plaintiff no.1 that he was sick in the year 2006 due to which defendant no.1 & Geeta Devi persuaded him and started living in the suit property under the pretext of taking care of him. They made him execute the General Power of Attorney dated 18.01.2006. These facts have been specifically denied by the defendants.
ii) Plaintiffs have not stated in the plaint which disease the plaintiff no.1 was suffering from. The nature of illness is not specified in the evidence affidavit of PW1 either. PW2 i.e. plaintiff no.1 stated in his evidence affidavit for the first time that he was suffering from Tuberculosis. Plaintiffs however led no evidence to prove that plaintiff no.1 was suffering from any disease in the year 2006. No medical prescription was filed. No details of place where plaintiff no. 1 was treated, were given and no application was moved for summoning the record from the said place. No explanation was given why such documents were not Suit No.7442/16 & Suit No. 296/18 Page 20 of 41 M/s Om Prakash & Ors. Vs. Harjeet Lal Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
filed.
iii) The plaintiff no. 1 also stated in his evidence affidavit that he was drunk at the time when General Power of Attorney was got executed from him. However, in his plaint, no such pleading exists. The plea of having been drunk has been raised for the first time in the evidence affidavit, and cannot be considered in absence of any pleadings to this effect.
iv) Plaintiffs could not prove that plaintiff no. 1 was sick or drunk when he executed the General Power of Attorney dated 18.01.2006, for the reasons stated above.
Non payment of consideration
v) It is case of the defendants that a sum of Rs.80,000/ was paid to the plaintiff no.1 towards execution of General Power of Attorney. Plaintiff no.1 has denied that he received any consideration amount. Ld. Counsel for the plaintiffs argued that there are contradictions in the Suit No.7442/16 & Suit No. 296/18 Page 21 of 41 M/s Om Prakash & Ors. Vs. Harjeet Lal Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
statements of Nathu Ram and Harjeet Lal with respect to the payment of consideration amount. He also argued that the testimony of DW1 qua payment of consideration is hearsay because she was not present when the payment was allegedly given.
vi) I have perused the statements of Nathu Ram, who is PW3 in the first suit, and Harjeet Lal, certified copy of whose cross examination was filed in the second suit. Harjeet Lal says that 50% of the consideration was paid by him and 50% was paid by Nathu Ram but during one of the questions in crossexamination volunteered to say that entire consideration was paid by him. PW3 Nathu Ram says that 50% of the consideration was paid by him. PW1 Badami Devi explained in her cross examination that Nathu Ram had handed over Rs.40,000/ towards 50% of the consideration amount to her husband Harjeet Lal who had then paid the entire consideration to the plaintiff no.1. It is thus the consistent case of the defendants that entire consideration was paid to the plaintiff no.1. The Suit No.7442/16 & Suit No. 296/18 Page 22 of 41 M/s Om Prakash & Ors. Vs. Harjeet Lal Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
contradictions as noted above, are minor in nature and not sufficient to raise a doubt on the case of defendants. DW1 is the legal heir of Harjeet Lal, who is no more & hence could not have appeared in the witness box. She thus has stepped into the shoes of Harjeet lal and her testimony is relevant. Her statement anyways corroborates the statement of Harjeet Lal & Nathu Ram, and cannot be doubted.
vii) The Plaintiff no. 1 denied that he received any payment.
The General Power of Attorney however is a registered document and mentions specifically that it was executed for a consideration of Rs.80,000/. The stamp duty has been duly paid. In case of a registered document, presumption arises that it was validly executed and it was for the plaintiffs to rebut this presumption. No independent evidence has however been led by the plaintiffs to rebut the said presumption, except cross examining DW1 and DW2. Plaintiffs could not shake the credit & veracity of DW1 and DW2, and nothing contrary Suit No.7442/16 & Suit No. 296/18 Page 23 of 41 M/s Om Prakash & Ors. Vs. Harjeet Lal Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
could be brought out in their crossexamination.
viii) The plaintiff no. 1 admitted during his cross examination that he had purchased a property in Banjara Camp. It was suggested to him that he purchased this property after receiving Rs.80,000/ towards consideration for executing the Power of Attorney. He denied this suggestion but did not inform the Court despite having been put a specific question to this effect, as to when he actually purchased the said property at Banjara Camp. He did not produce the documents also and thus an adverse presumption can be raised against him to the effect that the documents, if produced by him, would have been unfavourable to him.
ix) In view of discussion above, it is established on the scale of balance of probabilities that plaintiff no.1 had received the consideration amount of Rs.80,000/.
Occupation of third floor of the suit property
x) The case of the plaintiffs is that they have been living at Suit No.7442/16 & Suit No. 296/18 Page 24 of 41 M/s Om Prakash & Ors. Vs. Harjeet Lal Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
the third floor of the suit property since the day plaintiff no. 2 joined her matrimonial house. During her cross examination, plaintiff no. 2 deposed that she joined the company of the plaintiff no.1 in the year 2007 while plaintiff no. 1 deposed that plaintiff no.2 joined his company in the year 2006. It was suggested to them during their cross examination that both of them entered in the suit property in the year 2010 which suggestion was denied by them. However, both of them admitted during their cross examination that when they were entering in the third floor of the suit property, a fight had occurred. This suggests forcible entry in the suit property. PW1 i.e. plaintiff no.2 deposed that police was also called while PW2 stated that police was not called. PW2 also admitted that both of them entered into third floor of the suit property together.
xi) Case of the defendants is that plaintiffs entered into the third floor of the suit property forcibly on 02.05.2010. Forcible entry is established from the admission of PW1 & Suit No.7442/16 & Suit No. 296/18 Page 25 of 41 M/s Om Prakash & Ors. Vs. Harjeet Lal Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
PW2, as discussed above. PW1 also admitted that police was called however there is no document on record which reflects regarding making of complaint to the police in the year 2007. A complaint was rather made on 14.05.2010, it is placed on record by the defendants and no question regarding this complaint was put by the plaintiffs during cross examination. Plaintiffs rather admitted that a complaint was lodged on 14.05.2010. This complaint also suggests that plaintiffs had entered into the suit property on 02.05.2010. This complaint is a contemporaneous document, lodged by Late Harjeet Lal before institution of the present suit when chances of concoction were the least. The fact that there is no complaint to the police in the year 2007 and that there is a complaint in the year 2010 soon after 02.05.2010, suggests that the plaintiffs had entered in the third floor of the suit property in the year 2010 and not 2007.
General Power of Attorney and Affidavit
26. It shall be relevant to note some of the clauses of the Suit No.7442/16 & Suit No. 296/18 Page 26 of 41 M/s Om Prakash & Ors. Vs. Harjeet Lal Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
General Power of Attorney dated 18.01.2006 executed by plaintiff no.1 in favour of Late Harjeet Lal and Nathu Ram. The plaintiff no. 1 had also executed an affidavit on the said date.
27. The relevant clauses of General Power of Attorney are clause no. 7 and clause no. 18 which read as below: "7. To enter into negotiation for the sale of the said Property or any Part thereof, to settle the sale consideration, to receive the consideration amount in his / her own name or other - wise to enter into any agreement, to execute agreement, to issue receipt"
...........
18. This General Power of attorney is IREEVOCABLE"
28. The affidavit which is Ex.PW1/C reads as below: "I/We, Om Parkash Son of Shri Daulat Ram, Resident of House No. G 363, Dakshinpuri, New Delhi, do hereby solemnly affirm and declare as under: That I/We, have sold in respect of Plot / Property bearing No.G363, land measuring 25, situated at Dr. Ambedkar Nagar, Sector5, Dakshinpuri, New Delhi, has been allotted by DDA JJ Slum. To Sh. Harjeet Lal Son of Shri Bhura Ram, resident of House No.G 363, Dakshinpuri, New Delhi, & Shri Nathu Ram Son of Shri Kesar Lal, resident of House No.CI819, Madangir, New Delhi. That I/We have received the full and final sale consideration from the above said purchaser, as per terms and conditions of the Agreement to Sell.
That the actual physical vacant possession of the said property have been delivered to the said purchaser with all his/her rights, titles, and interest in the said property absolutely and forever.
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That I/We have got no objection if the said property is mutuated in the name of the said purchaser in the concerned authority. That if any objection is being raised by executant's heirs, nominees or successor or any one else the same will be treated as null and void and ineffective in the eyes of the law."
Discussion in Light of Proved Facts and Legal Principles Declaration
29. Plaintiffs have sought declaration that the General Power of Attorney dated 18.01.2006 is null and void as it was obtained from plaintiff no. 1 while he was sick. Though they do not specifically say, it is clear from the facts that the plaintiffs are seeking to avoid General Power of Attorney dated 18.01.2006 on the basis that undue influence was exercised upon the plaintiff no. 1 for getting the General Power of Attorney executed. The term 'Undue Influence' has been defined in Section 16 of the Contract Act, 1872 which reads as below: "16. 'Undue influence' defined. - (1) A contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another -
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(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress. (3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other.
Nothing in the subsection shall affect the provision of section 111 of the Indian Evidence Act, 1872 (1 of 1872)."
30. It is clear on a reading of Section 16(2)(b) that a person shall be deemed to be in a position to dominate the will of another if mental capacity of other person was effected temporarily or permanently by reason of illness. Plaintiff no.1 has alleged that he was sick however has failed to prove the same for reasons already discussed. There is no pleading in the entire plaint how defendants dominated the will of the plaintiff no.1.
31. In terms of Section 16(3) of the Contract Act, 1872, the plaintiffs shall first have to prove that the defendants were in a Suit No.7442/16 & Suit No. 296/18 Page 29 of 41 M/s Om Prakash & Ors. Vs. Harjeet Lal Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
position to dominate the Will of plaintiff no.1 and the bargain appears to be unconscionable. Onus would have shifted on the defendants to prove that undue influence was not used had the plaintiffs been able to prove that defendants were in a position to dominate the will of plaintiff no.1 and bargain was unconscionable.
32. The plaintiffs attempted to prove unconscionable bargain by suggesting to the defendant no.1 that General Power of Attorney was executed for Rs.80,000/ only, but the plaintiff no.1 had purchased the suit property for Rs.3,50,000/. Not only the plaintiffs however could not prove that defendants were in a position to dominate their will as already discussed above, the plaintiffs also failed to show how bargain was unconscionable. In the written statement defendants had alleged that the suit property was purchased by plaintiff no. 1 with one of their deceased brother. This fact was nowhere denied in the pleadings or evidence. No information was given about legal heirs of deceased brother but this made it clear that plaintiff no. 1 was not the sole owner of the suit property. This Suit No.7442/16 & Suit No. 296/18 Page 30 of 41 M/s Om Prakash & Ors. Vs. Harjeet Lal Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
explains why consideration for GPA was less than consideration for which suit property was purchased. Moreover, merely because the consideration for GPA was inadequate, the bargain cannot be called unconscionable. It is so specifically provided in Explantion 2 to Section 25 of the Indian Contract Act 1872, that reads as under: "25. Explanation 2. - An agreement to which the consent of the promisor is freely given is not void merely because the consideration in inadequate; but the inadequacy of the consideration may be taken into account by the Court in determining the question whether the consent of the promisor was freely given".
33. Since the plaintiffs could not prove that the defendants were in a position to dominate their will or that the bargain was unconscionable, onus to prove that undue influence was not used never shifted upon the defendants. In such a scenario, plaintiffs have not able to prove how Power of Attorney executed by the plaintiff no. 1 is null and void.
Limitation
34. This ground was not raised by either of the parties. However, limitation is a question of law and can be discussed though it was not raised.
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35. The Power of Attorney which has been challenged in the first suit was executed on 18.01.2006 and the suit was filed on 14.08.2012. It shall be relevant to note Article 59 of the Limitation Act, 1969 at this juncture: -
Description of suit Period of limitation Time from which period begins to run
59. To cancel or set Three years When the facts entitling the aside an instrument plaintiff to have the instruments or decree or for the or decree cancelled or set aside rescission of a or the contract rescinded first contract. become known to him.
36. It is clear on a reading of Article 59 of the Limitation Act, 1969 that the Suit for Declaration should have been filed within three years from the date when the facts entitling the plaintiffs to seek declaration became first known to them. It is case of the plaintiffs that the plaintiff no. 2 joined the company of plaintiff no.1 in the year 2007. Hence, if any undue influence was practiced, it ceased in the year 2007 and suit therefore should have been filed by 2010. The suit instead has been filed in the year 2012 without specifying any reason which can bring the suit within the limitation period. The plaintiff no. 1 has been aware of General Power of Attorney all through out. The plaintiff no.1 admitted during his cross examination that he went to Suit No.7442/16 & Suit No. 296/18 Page 32 of 41 M/s Om Prakash & Ors. Vs. Harjeet Lal Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
the office of Sub Registrar and signed the General Power of Attorney. There is no specific averments in the pleading if plaintiff became aware of the General Power of Attorney at any other day and how he became aware of it if he was not aware all through out since 18.01.2006. In such a scenario, the first suit is barred by limitation also.
Revocation of General Power of Attorney
37. Plaintiff has alleged that he revoked the General Power of Attorney by way of notice dated 23.06.2012. Payment of consideration has been proved by the defendants, as discussed above. The General Power of Attorney Ex.PW1/2 is a registered document executed for a consideration as mentioned therein. Virtually all powers of the owner have been bestowed upon the donee of General power of Attorney as is clear from clause no. 7 and the General Power of Attorney has been made irrevocable as per Clause 18. The plaintiff not only signed this General Power of Attorney but also Ex.PW1/C reciting therein that he was selling the suit property to Late Harjeet Lal and Nathu Ram. An interest was thereby created by him in the suit property in favour of Harjeet Lal and Nathu Ram. Section 202 of the Contract Act,1872 provides that an agency where an interest has been created in favour of the agent, cannot be terminated. It reads as Suit No.7442/16 & Suit No. 296/18 Page 33 of 41 M/s Om Prakash & Ors. Vs. Harjeet Lal Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
below:-
"202. Termination of agency, where agent has an interest in subject-matter.-- Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest."
38. It is thus clear in view of the aforesaid discussion that plaintiffs were not entitled to revoke / cancel the General Power of Attorney dated 18.01.2006 and the revocation is invalid.
Devolution of Title
39. It is case of the plaintiffs that no title devolved upon the defendants through General Power of Attorney dated 18.01.2006 therefore they cannot claim to remain in possession of the suit property which admittedly belongs to the plaintiff no.1.
40. It is the settled law that no title can devolve upon the transfree of an immovable property by way of transfer through General Power of Attorney. However, GPA sale can be used by the transfree to defend his possession as was held by the Hon'ble Supreme Court of India in Suraj Lamp case (Supra).
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41. The General Power of Attorney dated 18.01.2006 was acted upon by the plaintiffs by receiving entire sale consideration and by putting the defendants in possession of the suit property. The said General Power of Attorney is irrevocable and the defendants having been put in possession of the suit property after substantial compliance on their part i.e payment of entire sale consideration, are entitled to defend their possession / possessory title.
Recovery of Possession by the Defendants
42. The defendants are seeking to recover possession from the plaintiffs with respect to the third floor of the suit property. It has been discussed already that the plaintiffs entered into the third floor of the suit property forcibly in the year 2010 and hence are trespassers. It is also sufficiently proved from the General Power of Attorney Ex.PW1/B and affidavit Ex.PW1/C that defendants were put in possession of the suit property after receiving entire sale consideration by the plaintiff no.1. They thus are having possessory title over the suit property and can recover possession under Section 5 of the Specific Relief Act 1963, from every person except from one who is able to establish a better title. [Referred Somnath Burman Vs. Dr. S.P. Raju:(1969) 3 SCC 129].
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43. In this case, the plaintiff no.1 had put the defendants in possession of the suit property under a contract of agency with consideration, which is irrevocable and thereby created an interest in the suit property in favour of the defendants. The plaintiff no. 1 is also a General Power of Attorney holder and has no better title than the defendants. Plaintiffs are bound by the contract of agency and are liable to hand over possession to the defendants, in view of trespass which resulted in breach of contract of agency.
Preliminary Objections
44. Though no specific issues had been framed on the preliminary objections raised by the plaintiffs in the second suit, these are questions of law and are being dealt with hereinafter. The issue of resjudicata has been raised by the plaintiffs in the second suit stating that Suit for Possession is not maintainable because Suit for Mandatory Injunction filed by Late Harjeet Lal, Predecessor in Interest of the defendants, was dismissed by the Ld. Trial Court.
45. Section 11 of the CPC embodies the concept of resjudicata and reads as below: -
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11. Res Judicata. - No Court shall try any suit or issue in which the mater directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
46. It is clear on a reading of Section 11 of CPC that only such a matter shall be resjudicata which was heard and finally decided by a competent court. The Suit for Mandatory Injunction was dismissed on the ground of non maintainability and was never heard and finally decided. The said suit therefore cannot act as resjudicata to the second suit for Possession filed by the defendants.
47. Another preliminary objection raised by the plaintiffs is that the second suit is barred by limitation. It is provided in Article 65 of the Limitation Act, 1965 as below:-
Description of suit Period of Time from which period begins limitation to run
65. For possession of Twelve years When the possession of the immovable property defendant becomes adverse to or any interest therein the plaintiff.
based on title.
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48. The defendants are alleging dispossession in the year 2010 that has been proved on the scale of balance of probabilities, as discussed above. The suit was filed in the year 2015 i.e. within 12 years from the date when cause of action arose. Hence, second suit is not barred by limitation.
Findings
49. In view of discussion above the findings with respect to the issues framed in the first suit are as below:-
Issue no.(i): Whether this court has no territorial jurisdiction to try the present suit as alleged in the preliminary objection No. 2 in the written statement? OPD
(a) Onus to prove issue no. (i) was upon the defendants. No evidence was however led to show that market value of the entire suit property was less than what has been disclosed by the plaintiffs. Hence, defendants have not been able to discharge the onus put upon them. Issue no. (i) is accordingly decided in favour of the plaintiffs and against the defendants.
Issue no. (ii): Whether the plaintiff has no cause of action to institute the present suit? OPP Suit No.7442/16 & Suit No. 296/18 Page 38 of 41 M/s Om Prakash & Ors. Vs. Harjeet Lal Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
(b) Onus to prove issue no.(ii) was upon the plaintiffs. Plaintiffs alleged that they were made to execute the Power of Attorney under undue influence. Hence, plaintiffs had a cause of action in their favour to institute the first suit. Issue no. (ii) is accordingly decided in favour of the plaintiffs and against the defendants.
Issue no. (iii): Whether the plaintiff is entitled to the decree of declaration, as claimed for?OPP
(c) Onus to prove issue no. (iii) was upon the plaintiffs. The plaintiffs have not been able to prove that Power of Attorney was executed under undue influence. The plaintiffs further were not able to rebut the presumption of validity attached to a registered document. Reasons have already been discussed. Issue no. (iii) is accordingly decided against the plaintiffs and in favour of defendants.
Issue no.(iv): Whether the plaintiff is entitled to the decree of possession, as claimed for?OPP
(d) Onus to prove issue no. (iv) was upon the plaintiffs. The defendants are in possession of the suit property under an Suit No.7442/16 & Suit No. 296/18 Page 39 of 41 M/s Om Prakash & Ors. Vs. Harjeet Lal Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
irrevocable Power of Attorney and are entitled to defend their possession, as discussed above. The General Power of Attorney is valid and thus the plaintiffs consequently are not entitled to possession of the suit property also, for the reasons already discussed. Issue no. (iv) is accordingly decided against the plaintiffs and in favour of the defendants.
50. Findings with respect to the issues framed in the second suit are as below:
Issue no. (i): Whether the plaintiffs are entitled to decree of possession in the respect of the suit property against the defendant as prayed in clause A? OPP And Issue no. (ii): Whether the plaintiffs are entitled to decree of permanent injunction against the defendants seeking restrainment from creating third party interest in the suit premises as prayed in clause B? OPP
(a) Onus to prove issue no. (i) and (ii) was upon the defendants.
Defendants have been able to prove that they were put in possession of the suit property under an irrevocable General Power Suit No.7442/16 & Suit No. 296/18 Page 40 of 41 M/s Om Prakash & Ors. Vs. Harjeet Lal Ms. Badami Devi & Anr. Vs. Om Prakash & Anr.
of Attorney executed by the plaintiff no.1 and were forcibly dispossessed in the year 2010. They are thus entitled to possession of the third floor of the suit property because plaintiffs could not show a better title than the possessory title of the defendants. Issues no. (i) & (ii) in the second suit are accordingly decided against the plaintiffs & in favour of the defendants.
Relief
51. In view of discussion above, the first suit is dismissed, while the second suit is decreed. Plaintiffs are hereby directed to hand over possession of the third floor of the suit property to the defendants. They are further restrained from creating any third party interest in the suit property. No order as to cost.
52. Decree sheet be prepared accordingly.
53. File be consigned to record room.
Announced in the open (JYOTI KLER)
Court on 27.09.2018 ADJ05 (SOUTH DISTRICT)
(Judgment contains 41 pages) SAKET COURTS, NEW DELHI
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