Delhi District Court
Dr.(Mrs) Santosh Sahi vs Smt. Shakeela Begum on 6 April, 2013
In the Court of Dr. Rakesh Kumar : Additional Senior Civil Judge of
Central Delhi District at Tis Hazari Courts, Delhi
Suit No : 158/2013
Unique ID No. 02401C0708642005
In the matter of :
Dr.(Mrs) Santosh Sahi,
Wife of Dr. B.B. Sahi,
Sahi Hospital, Mathura Road,
Jangpura, Bhogal, New Delhi ......Plaintiff
V E R S U S
1. Smt. Shakeela Begum,
Wife of Sallauddin Khan,
Resident of H.No.16A, Servant
Quarters, Feroz Shah Road,
New Delhi
Also Resident of B119/2,
(Shaheen Bagh), Abul Fazal Enclave,
Okhla, Part II, New Delhi
2. Asad Jamal,
Son of Mohd. Tahir,
Resident of A62,
Abul Fazal Enclave,
Part I, Okhla, New Delhi ......Defendants
Date of institution : 22.12.2001
Reserved for Judgment : 02.04.2013
Date of decision : 06.04.2013
Suit for Recovery of Possession
Suit No. 158/13 Page No. 1 / 10
J U D G M E N T
1. This is a suit for recovery of possession/directions to the defendants to handover the actual, peaceful, vacant, physical possession of plot of land measuring 52.5 square yards forming part of Khasra No. 361 min. situated in Village Jasola, Tehsil Mehrauli, also known as Shaheen Bagh, Abul Fazal Enclave, Part II, Okhla, New Delhi to the plaintiff.
2. Facts are that the Asha Ram and his wife were the registered owners of the land measuring 1 bigha comprised in Khasra No.361 min situated in Village Jasola, Tehsil Mehrauli, New Delhi who had sold the said land to Hafiz Mohd. Zahir, son of late Hafiz Mohd. Latif by way of registered Sale Deed dated 28th January, 1986; that based on the said Sale Deed, the plaintiff purchased the aforesaid land vide Agreement to Sell dated 20.04.1989 and General Power of Attorney dated 30.05.1989 duly registered with the office of the SubRegistrar, Noida and vacant, peaceful, physical possession of the purchased land was duly handed over by the seller to the plaintiff; that the plaintiff constructed a boundary wall and installed a big iron gate and displayed a signboard; that on 23.04.1996, the plaintiff visited the plot and found that the iron gate was broken, boundary walls was damaged and the sign board was missing; that a small room was built in the Eastern corner of the plot allegedly built by the defendant no.2; that the plaintiff also noticed that few labourers were actively working in the plot who informed that the plot belongs Suit No. 158/13 Page No. 2 / 10 to the defendant no.2 and they told that the plaintiff had no business to intervene and hence the present suit.
3. The defendant no. 1 contested the present suit by filing written statement of his defence taking wherein preliminary objections to the effect that the suit of the plaintiff is barred by time and is bad for nonjoinder and misjoinder of parties; that the suit of the plaintiff does not disclose any cause of action.
4. In reply on merits, it is contended that the plaintiff is neither the owner nor in possession of the suit property; that the alleged Agreement to Sell as well as General Power of Attorney do not confer any title to the plaintiff; that under the garb of the present suit, the plaintiff wants to grab the land and building own and possessed by the defendant no.1. It is denied that the possession of the defendant no. 1 is illegal and unauthorized as alleged. Other allegations of the plaint have been denied and disputed by the defendant and prayed for dismissal of suit.
5. The defendant no. 2 failed to appear despite service and was proceeded exparte on 19.11.2003.
6. The plaintiff filed replication to the written statement of defendant no. 1 and traversed all the contentions raised in the written statement and reaffirmed the allegations made in the plaint.
Suit No. 158/13 Page No. 3 / 107. From the pleadings of the parties, following issues were framed by learned Predecessor of this court on 08.08.2005 for trial, namely:
1. Whether the plaintiff is entitled to get a decree of recovery of Possession against the defendants? OPP
2. Whether the suit has been filed without any cause of action against the defendants? OPD
3. Relief
8. The plaintiff examined five witness. PW1 is Dr. (Mrs) Santosh Sahi, the plaintiff herself who has also produced the documents Ex. PW1/1 to PW1/7 in her evidence. PW2 is Ashok Kumar, Halka Patwari, Village Jasola, Tehsil Kalkaji, New Delhi who has produced the documents Ex. PW2/A and PW2/B in his evidence. PW3 is Giriraj Singh, Halka Patwari, Jasola who has produced the document Ex. PW3/A in his evidence. PW4 is Chhattarpal Singh, Office Kanoongo, Tehsil Hauz Khas, Old Tehsil Building, Mehrauli who has produced the document Ex.PW4/1, Ex.PW4/2, Ex.PW4/3 and Ex.PW4/4 in his evidence. PW5 is Bhanwar Singh, Patwari, Land & Building Department, ITO, New Delhi who has proved the documents Ex. PW3/A, Ex.PW4/2, Ex.PW4/3 and Ex.PW4/4 in his evidence.
9. The defendant no. 1 did not lead any evidence despite opportunity and was proceeded exparte on 16.01.2008.
10. I have heard counsel for the plaintiff and perused the material available on record carefully.
Suit No. 158/13 Page No. 4 / 1011. My issue wise findings are as follows: Issues No. 1 and 2 Whether the plaintiff is entitled to get a decree of recovery of Possession against the defendants? Whether the suit has been filed without any cause of action against the defendants?
12. Onus qua issue no. 1 was placed on the plaintiff and onus qua issue no. 2 was placed on the defendant no.1. These issues are taken together being interconnected.
13. To prove her case, it is stated by the plaintiff (PW1) Dr. (Mrs) Santosh Sahi in her affidavit that Asha Ram, son of Chander and Smt. Chanderwati, wife of Asha Ram were the registered owners of the land measuring 1 bigha comprised in Khasra No.361 min situated in Village Jasola, Tehsil Mehrauli, New Delhi who had sold the said land to Hafiz Mohd. Zahir, son of late Hafiz Mohd. Latif by way of registered Sale Deed dated 28th January, 1986. It is further stated by PW1 that based on the said Sale Deed, she purchased the aforesaid land vide Agreement to Sell dated 20.04.1989 and General Power of Attorney dated 30.05.1989 duly registered with the office of the SubRegistrar, Noida and valuable consideration vacant, peaceful, physical possession of the purchased land was duly handed over by the seller to her. It is further stated by PW1 that she became absolute rightful owner of the said land situated within the revenue limits of Village Jasola, Tehsil Mehrauli, New Delhi also known as Abul Fazal Encalve, Shaheen Bagh, New Delhi and remained in physical possession till the defendant no. 2 illegally Suit No. 158/13 Page No. 5 / 10 encroached upon the said land. It is further stated that it was in the early days of March, 1996, when the plaintiff started constructing a boundary wall around the land, a group of persons from the area obstructed the construction and the matter was reported to the local police. It is further stated that upon verification and checking up the relevant papers/documents, the local police intervened and the boundary wall was completed. It is further stated that a big iron gate was installed and a signboard was displayed indicating thereby the opening of Medical Centre at the plot. It is further stated that on 23.04.1996 when the plaintiff visited the plot to her surprise, she found that the iron gate was broken, boundary walls was damaged and the sign board was missing. It is further stated that a small room was built in the Eastern corner of the plot allegedly by the defendant no.2. It is further stated that the plaintiff also noticed that few labourers were actively working in the plot who informed that the plot belongs to the defendant no.2 and they told that the plaintiff had no business to intervene. It is further stated that the plaintiff was constrained to submit a report in writing to the SHO, Police Station Badarpur on the same day. It is further stated that during the course of investigation, after registration of the case, the SHO, Police Station wrote a letter to the Tehsildar, Mehrauli, New Delhi on 13.06.1996 requesting therein the demarcation of land in Khasra Nos. 360 and 361 or in Khasra No. 360 because the defendant no.2 claimed that he had purchased the land comprising in Khasra No. 360 and that the land in question fell in Khasra No.360 contrary to the claim of the plaintiff.
Suit No. 158/13 Page No. 6 / 1014. The defendant no. 1 neither crossexamined the plaintiff witnesses nor led any evidence on his behalf.
15. In the light of the evidence of the parties, the plaintiff is claiming to be the owner of the suit property on the basis of documents Agreement To Sell dated 20.04.1989 and General Power of Attorney dated 30.05.1989. The plaintiff has not got executed in her favour any sale deed in support of the suit property. In support of her case, the plaintiff has produced photocopies of Agreement To Sell dated 20.04.1989 and General Power of Attorney dated 30.05.1989.
16. The Hon'ble Supreme Court in Suraj Lamp and Industries Private Limited v. State of Haryana and Another, (2012) 1 SCC 656 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 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...."Suit No. 158/13 Page No. 7 / 10
17. 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."
18. In the light of law laid down by the Hon'ble Supreme Court in Suraj Lamp's case (supra), no right, title or interest in respect of the suit property were conferred upon the plaintiff upon execution of Agreement To Sell dated 20.04.1989 and General Power of Attorney dated 30.05.1989.
19. It is argued by the learned counsel for the plaintiff that the ratio of the judgment of Suraj Lamp (supra) is not applicable to the Suit No. 158/13 Page No. 8 / 10 facts and circumstances of the case of the plaintiff as operation of judgment of the Suraj Lamp (supra) is not retrospective. This contention of counsel for the plaintiff is not acceptable and I hold that ratio decided by the Hon'ble Supreme Court in Suraj Lamp's case (supra) is very much applicable to the facts and circumstances of the present case.
20. In view of the above, therefore, I am of the considered opinion that the plaintiff has failed to produce any material on record to prove that she is owner of the suit property.
21. Further, In the plaint, it is the case of the plaintiff that on 23.04.1996, when the plaintiff visited the plot, she found that the iron gate was broken, boundary walls was damaged and the sign board was missing and a small room was built in the Eastern corner of the plot by the defendant no. 2 and labourers working in the said property had informed that the plot belonged to the defendant no.2.
22. From the above allegations made by the plaintiff in the plaint itself, it is clear that on or before 23.04.1996, the plaintiff was out of possession and the defendant no. 2 raised clouds over the title of the plaintiff.
23. The Hon'ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy AIR 2008 SC 2033 summarizes the scope in regards to the suit for declaration, declaration with possession and consequential injunction relating to immovable property as under: Suit No. 158/13 Page No. 9 / 10 "Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration with possession, with or without consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with consequential injunction. Where there is remedy an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor."
24. As I have already observed, the plaintiff is out of possession the property in question and the defendant no. 2 has raised serious clouds on the rights of the plaintiff but the plaintiff has not sought any declaration of ownership and only sought relief for possession. In the facts and circumstances of the present case, in the light of law laid down by the Hon'ble Supreme Court in Anathula Sudhakar's case (supra), the plaintiff should have also filed a suit for declaration of her title along with possession but she has merely filed a suit for possession.
25. For the reasons abovestated, these issues are decided against the plaintiff and in favour of the defendants.
Relief
26. In view of my findings on issues no. 1 and 2, the suit of the plaintiff is dismissed. No order as to costs as the defendants did not lead any evidence. Decree sheet be prepared accordingly.
Announced in the Open Court on 06.04.2013 (Dr. Rakesh Kumar) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi Suit No. 158/13 Page No. 10 / 10