Delhi District Court
Smt.Usha Rani vs Smt. Pushp Lata on 5 December, 2011
In the Court of Dr. Rakesh Kumar : Commercial Civil Judge of
North Delhi District at Tis Hazari Courts, Delhi
Suit No. 301/2006
Unique ID No: 02401C0081052002
In the matter of :
Smt.Usha Rani,
W/o Laxman Dass,
C74/5, Vijay Vihar,
Delhi 85 ..... Plaintiff
Versus
1 Smt. Pushp Lata
W/o Mam Chand Goswami
R/o RZH7072, Sita Puri,
Near Dabri, Janakpuri, New Delhi
2 O.P. Wadhwa,
R/o H.No.1792B, Multani Mohalla,
Rani Bagh, Delhi - 34
3 Baru,
R/o C69, Vijay Vihar, Delhi - 85
4 Mastarji
S/o Baru,
R/o C69, Vijay Vihar, Delhi - 85
5 Vijay Singh (Dhobi)
C68, Vijay Vihar, Delhi - 85
6 Commissioner of Police,
Police Headquarter,
I.P. Estate, New Delhi .....Defendants
Suit No: 301/06 Page 1/14
Date of Institution : 01.11.1997
Reserved for judgment : 23.11.2011
Date of decision : 05.12.2012
Suit for Permanent & Mandatory Injunction and Declaration
1.This is a suit for permanent injunction, mandatory injunction & declaration for restraining the defendants and their agents from disturbing peaceful enjoyment and possession and dispossessing the plaintiff from the property with plot of land admeasuring 100 Sq. Yds out of khasra number 93/1 in the area of village Rithala, Delhi now commonly known as property number C74/5, Vijay Vihar (Vikas Vihar), Delhi85 (hereinafter referred to as 'the suit property') and for declaring that the plaintiff has legal right, interest & title of the suit property and he is lawful occupation and possession by virtue of documents of Transfer executed in his favour and also for declaring that the defendants No. 1 to 5 have no legal right, title or interest in the suit property on the basis of alleged documents held by them and that the said documents are nothing but act of fraud and forgery committed by them and the defendants have no legal status in the suit property and for direction to the defendant No. 6 to investigate the matter thoroughly and prosecute the culprit.
2. Facts are that the plaintiff is exclusive owner of the suit property with physical possession thereof in her own legal right; that on 20.10.1997 the defendant No. 1 alongwith the defendants Suit No: 301/06 Page 2/14 No. 3 to 5 and some other gunda element appeared at the site and claimed herself to have purchased the said property from the 'Zamidar' but she failed to produced any authenticated documentary evidence in her support; that the plaintiff moved to the local police but of no avail, however, with the help of neighbours and friends the plaintiff could protect her property; that after a few days the defendant No. 2 appeared on the spot and claimed to be owner of the suit property but he also failed to produce any documentary evidence; that on 25.10.1997 also, the defendants tried to trespass into the suit property but could not succeed; that the plaintiff also lodged various complaints to the police. It is further stated that the plaintiff has reasonable apprehension that the defendant may trespass forcibly and illegally captured the suit property, hence, this suit.
3. The defendant No. 1 contested the present suit by filing written statement of her defence, wherein took preliminary objection to the effect that the suit of the plaintiff is not maintainable as the plaintiff is neither owner nor occupier of the suit property .
4. In reply on merits, it is contended by the defendant that the plaintiff is not the owner of the property in suit and is not in any sort of possession physical or otherwise; that the answering defendant no.1 is the owner in possession of the suit property and construction work is being done by the defendant no.1 on Suit No: 301/06 Page 3/14 the said property; that the property no.93/1/1 measuring 100 sq. yds was purchased by the answering defendant no.1 from Vijay Singh, the original land holder in the year 1983 and copies of General Power of Attorney and receipt for the amount paid are filed herewith; that the plaintiff's husband Laxman Dass tried to interfere with the construction of the answering defendant no.1 and the matter was reported to the police on 07.08.1987 and again on 02.09.1997; that the plaintiff's husband after that got bogus documents prepared in collusion with the so called previous owner Smt. Saroj Ahuja; that the defendant no.2 is also indulging to take forcible possession of the plot in suit; that the defendant no.2 has no right, title or interest in the plot in suit; that the plaintiff has got no right, title or interest in the suit property; that there is no cause of action in favour of the plaintiff and against the defendants.
5. It is denied that Smt. Saroj Ahuja was ever or was continuously keeping watch and care of the property in suit. Other allegations of the plaint are also denied and disputed by the defendant and prayed for dismissal of present suit.
6. The defendant No. 2 contested the present suit by filing written statement of his defence, wherein took preliminary objections to the effect that the plaintiff has no locus standi to file the present suit; that the suit is bad for nonjoinder and mis joinder of necessary parties; that the present suit is not Suit No: 301/06 Page 4/14 maintainable under Order 7 Rule 11 CPC.
7. In reply on merits, it is contended by the defendant no.2 that the suit property was never sold out by Ramesh Chand Jain to one Smt. Saroj Ahuja; that no construction was raised by Smt. Saroj Ahuja on the plot No.44A admeasuring 100 sq yards part of Khasra No.93/2 and 3 situated int he Village Rithala Abadi now known as Vikas Vihar, BlockC; that the wife of the defendant no. 2 raised the boundary wall on the suit property after purchasing the suit property by her from one Ved Prakash Sharma son of Govind Ram resident of 971, Rani Bagh, Delhi110034.
8. It is denied that the plaintiff is the exclusive owner of the suit property with physical possession thereof in her own independent legal right having purchased the same from the previous owner Smt. Saroj Ahuja against valuable consideration. Other allegations of the plaint are also denied and disputed by the defendant and prayed for dismissal of present suit.
9. The plaintiff filed separate replications against the written statement of defendant no.1 and defendant no.2 wherein she denied the contentions raised by the defendant in the written statement and reiterated the allegations made in the plaint.
10. From the pleadings of the parties, following issues were framed on 28.09.1998 by my Learned. Predecessor, namely:
(i) Whether the suit is not maintainable under the present form? OPD.
(ii) Whether the plaintiff has not come to the Court with Suit No: 301/06 Page 5/14 clean hands and if so, to what effect ? OPD.
(iii) Whether the suit is bad for nonjoinder of necessary parties? OPD.
(iv) Whether the plaintiff is entitled to a decree of declaration as prayed for? OPP.
(v) Whether the plaintiff is entitled to a decree of permanent injunction as prayed for ? OPP.
(vi) Relief.
11. The plaintiff produced six witnesses. PW1 is Laxman Sachdeva. PW2 is Saroj Ahuja. PW3 is Roop Chand. PW4 is Ram Gopal. PW5 is Bhim Singh. During evidence the Plaintiff produced documents from Ex. PW1/1 to Ex. PW1/5, Ex.PW2/2 to Ex. PW2/14, Ex. PW3/A to PW3/H.
12. The defendant examined two witnesses. The defendant No. 1 examined herself as D1 W1 and O.P. Wadhwa as D2W1. The defendant No.1 produced documents Ex.D1/1 to Ex.D1/5.
13. I have heard counsel for the parties and perused the material on record carefully.
14. My issues wise findings are as under: Issue No. 4 & 5.
Whether the plaintiff is entitled to a decree of declaration as prayed for? Whether the plaintiff is entitled to a decree of permanent injunction as prayed for ?
15. Onus qua these issues was placed on the plaintiff. These issues are taken together being interconnected.
16. To prove the case of the plaintiff, it is stated by PW1 Laxman Suit No: 301/06 Page 6/14 Sachdeva that Smt. Usha Rani is his wife and she has given him power of attorney and his wife is the owner of the disputed suit property bearing No. C74/5, Khasra No. 93/1, Vijay Vihar (Vikas Vihar) Rithala Village, Delhi85 and his wife had purchased the said property for valuable consideration of Rs.10,000/ from the previous owner Smt. Saroj Bala Ahuja. It is further stated that Ex.PW1/3 is the agreement to sell, which is signed by Smt. Saroj Bala in his presence and Ex. PW1/4 is the receipt fo the sale consideration paid by the plaintiff to the seller Smt. Saroj Bala Ahuja, who has put her signature at point K in Ex.P21/4 in the presence of the one witness Roop Chand & Anand Kumar. It is further stated that Ex.P2 1/5 is the possession letter executed by seller Smt. Saroj Bala and also the buyer Smt. Usha Rani and witness Roop Chand & Anand Kumar also appended their signature in his presence. It is further stated by the PW1 that at the time of execution of sale documents by the said Smt. Saroj Bala, Smt. Saroj Bala, delivered vacant physical possession with plaintiff in his presence and his wife alongwith him took the possession in presence of the witnesses & common friends. It is further stated that Smt. Saroj Bala had executed a power of attorney in favour of Smt. Usha Rani. It is further stated that the original owner of the land was bhumidar Vijay Singh and he had executed power of attorney in favour of Ramesh Chand Jain for the purpose of selling out the plot carved out. It is further stated Suit No: 301/06 Page 7/14 by PW1 that Smt. Saroj Bala had purchased the suit from the said Ramesh Chand Jain on the basis of documents of power of attorney etc.
17. PW1 has further stated that Smt. Saroj Bala was a member of the Welfare Association of "Vikas Vihar Plot Holder Welfare Association" and Mark K to L are the receipt of subscription paid by Smt. Saroj Bala into the association. PW1 further stated that on 20.10.1997, the defendant No. 1 alongwith some other persons came to tress pass the suit property and she claimed that plot belong to her.
18. In the light of evidence of the plaintiff, she has based her claim as owner on the documents agreement to sell Ex.PW1/3, receipt Ex. PW1/4 for the sale consideration paid by the plaintiff to the seller Smt. Saroj Bala Ahuja and possession letter Ex.P2 1/5. The Hon'ble Supreme Court in Suraj Lamp Industries Pvt. Ltd. v. State of Haryana & Anr., SLP(C) NO.13917 of 2009 clearly declared the scope of agreement for sale as follows:
"Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam and Anr. (1977) 3 SCC 247, observed:
A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein." In India, the word 'transfer' is defined with reference to Suit No: 301/06 Page 8/14 the word 'convey'. The word 'conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership... ...that only on execution of conveyance ownership passes from one party to another...."
19. The Hon'ble Supreme Court in Suraj Lamp's case (supra) further explained the scope of power of attorney which is as follows:
"A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan 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 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 in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the guarantor."Suit No: 301/06 Page 9/14
20. In the light of law clearly declared by the Hon'ble Supreme Court in Suraj Lamp's case(supra) that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property and a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. In view of the above no right, title or interest qua the suit property were conferred on the plaintiff on execution of documents relied upon by her.
21. The plaintiff has also produced certain documents viz receipt of membership of Vikas Vihar (Rithala) Resident Cooperative Welfare Association and the letters issued by the Association to Smt. Saroj Ahuja to show that Smt. Saroj Ahuja was in possession of the property in question but this document are of no use for the plaintiff. Present suit has been filed by the plaintiff on the basis of title of ownership and not on the basis of previous possession. PW1 Laxman Sachdeva has admitted in his cross examination that the land in dispute is lying vacant since 1984 and none is residing therein. PW1 has further admitted that they have never resided in the property in dispute. PW1 has also admitted that no sale deed was executed regarding the land in question till today and they have not filed any suit for performance against vendor. In view of the above, it is admitted on behalf of the plaintiff that she has never been in possession of the suit property.
Suit No: 301/06 Page 10/1422. There is another disturbing feature in the case of the plaintiff, namely, the plaintiff did not enter into the witness box and did not allow the opposite party to cross examine her despite the fact that PW1 Laxman Sachdeva in his cross examination admitted that the plaintiff has a good health and she can appear before the court. It has been held in Vidyadhar v. Manik Rao SCC1999(573) as under:
"Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be crossexamined by the other side, a presumption would arise that the case set up by him is not correct."
23. In the light of law laid down by Hon'ble Supreme Court in Vidyadhar's case (supra), I draw adverse inference against the plaintiff.
24. In view of the above discussion, the plaintiff has failed to prove that she is owner of the suit property.
25. For the reasons stated above, these issues are decided against the plaintiff.
Issues No.1 to 3Whether the suit is not maintainable under the present form? Whether the plaintiff has not come to the Court with clean hands and if so, to what effect ?
Whether the suit is bad for nonjoinder of necessary parties?
26. Onus qua these issues was placed on the defendant. These issues are taken together being interrelated.
27. The defendant has failed to produce any evidence to prove Suit No: 301/06 Page 11/14 these issues. Hence, these issues are decided against the defendant for want of evidence.
Relief
28. In view of my findings on issues No.4 and 5, the plaintiff has failed to prove her title of ownership qua the suit property. The plaintiff cannot be declared to be owner of the suit property. The plaintiff is also seeking declaration to the effect that the defendants No. 1 to 5 have no legal right, title or interest in the suit property on the basis of alleged documents held by them and that the said documents are nothing but act of fraud and forgery committed by them. As I have already observed that the plaintiff has failed to prove her title qua the suit property and she cannot be declared to be owner of the suit property, she cannot seek a declaration to the effect that the defendants do not have any right, title or interest qua the suit property. As per the scope of Section 34 of Specific Relief Act, 1963 for grant of declaration, "Where any person is entitled to institute a suit against another denying, or interested to deny, his title to a right, the Court, in its discretion, is empowered to make a declaration that he is so entitled although the plaintiff has not asked for any other relief." A suit under this section cannot be maintained unless the plaintiff is a person entitled to some legal character or to some right as to property and the declaration sought is that he is entitled to such character or to such right. The section does not Suit No: 301/06 Page 12/14 sanction every form of declaration but only a declaration that the plaintiff is entitled to specific legal character or right as to property. Again, a suit is maintainable under the section only in cases where the legal character or right to any property of the plaintiff is denied by the defendants. The plaintiff is not entitled to any legal character or right as to property no declaration can be granted against the defendants. Where no such legal character or right is claimed the section will not apply or give a right to sue for a declaration.
29. The plaintiff is also seeking permanent injunction and mandatory injunction for restraining the defendants and their agents from disturbing peaceful enjoyment and possession and dispossessing the plaintiff from the property with plot of land admeasuring 100 Sq. Yds out of khasra number 93/1 in the area of village Rithala, Delhi now commonly known as property number C74/5, Vijay Vihar (Vikas Vihar), Delhi85. As I have already observed that the plaintiff has failed to prove her possession qua the suit property, she cannot seek injunction for restraining the defendants from disturbing her possession and this relief also cannot be granted.
30. The grant of injunction is governed by provisions of Section 41(i) of the Specific Relief Act 1963, which says, "an injunction cannot be granted when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the Suit No: 301/06 Page 13/14 court".
31. In the present suit the plaintiff is claiming herself to be owner of the suit property knowingly that the execution of General Power of Attorney and Agreement to Sell does not confer on the plaintiff any right, title or interest in respect of the suit property. For these reasons, I am of the considered view that the conduct of the plaintiff has been such as to disentitle her to the assistance of the court and no injunction can be granted in her favor.
32. In view of the above discussion, the suit of the plaintiff is dismissed with costs. Decree sheet be prepared accordingly.
Announced in the open court (Dr. Rakesh Kumar)
on 05.12 .2012 Commercial Civil Judge
North Delhi District
Tis Hazari Courts, Delhi.
Suit No: 301/06 Page 14/14