Delhi District Court
Smt. Savitri vs Sh. Raj Pal on 27 January, 2012
IN THE COURT OF SH. ANIL KUMAR SISODIA, SENIOR CIVIL
JUDGECUMRENT CONTROLLER (NORTH EAST DISTRICT) :
KARKARDOOMA COURTS: DELHI.
CIVIL SUIT NO. 226 OF 2010
(UNIQUE CASE I.D. NO.02402C0226362010)
SMT. SAVITRI
W/o Sh. Madan Pal
R/o D594, Gali No.3,
Ashok Nagar, Delhi110093. ............ PLAINTIFF
Versus
SH. RAJ PAL
S/o Late Sh. Tikar Ram
R/o D594, Gali No.3,
Ashok Nagar, Delhi110093. ........... DEFENDANT
Date of institution : 11.08.2010
Order reserved on : 18.01.2012
Date of Decision : 27.01.2012
SUIT FOR RECOVERY
J U D G M E N T :
1. The plaintiff has filed the present suit for recovery of Rs.60,000/ alongwith interest @ 18% p.a. against the defendant.
2. The facts of the case, as stated in the plaint, are that the plaintiff is Suit No.226/10 Page : 1/15 the lawful owner of the property bearing khasra no. 561, plot no. 594, situated in the village of Saboli in the abadi of Ashok Nagar, Illaqua Shahdara, Delhi110093 and in possession of the land measuring area 50 sq.yds. out of entire total area measuring 100 sq. yds. The property was purchased by Sh. Madan Pal (husband of the plaintiff) on 29.11.1986 and the defendant from Nathu Ram and later on the husband of the plaintiff transferred his share of 50 sq. yds. in the name of the plaintiff by way of GPA, Will and Gift Deed, dated 16.03.1992. It has been submitted that the defendant is a Govt. employee and in the year 2004, he had approached the plaintiff and requested to give him 50 sq. yds. portion of the plaintiff on rent for residential purposes as defendant was running Aata Chakki in his portion. The plaintiff letout her 50 sq. yds. portion of the said property to the defendant @ Rs.5,000/ p.m. excluding electricity and water charges on 01.04.2004 which was to be paid by the defendant to the plaintiff on every 1st day of each English calender month on the basis of an oral agreement. The defendant paid the monthly rent of the tenanted premises till December 2008 and thereafter he stopped paying the rent despite repeated requests made by the plaintiff and now defendant is in arrears of rent of Rs.60,000/ since January 2009 to December Suit No.226/10 Page : 2/15 2009. It has been submitted that the defendant has a commercial meter for running Aata Chakki at the abovesaid address. It has further been submitted that on 12.12.2009, when the plaintiff asked the defendant to pay the arrears of rent, then the defendant misbehaved with the plaintiff and threatened the plaintiff to face dire consequences. It has been submitted that the plaintiff is living in her ancestral house which is adjoining portion of abovesaid property, due to said adjoining portion, the address is same and main gate of both the properties is common. The plaintiff terminated the tenancy of the defendant vide legal notice dated 22.12.2009 sent through regd. post. It has been submitted that defendant is an illegal occupier of the tenanted premises as trespasser and despite receiving the notice, neither defendant paid the arrears of rent nor vacated the tenanted premises nor has given any reply to the said legal notice. Finding no other alternative, the plaintiff has filed the present suit.
3. Summons of the suit were served on the defendant. Defendant has contested the suit by filing the Written Statement raising preliminary objections that the plaintiff has filed the present suit against the defendant at the instance of her husband namely Madan Pal for the purposes of harassment of the defendant. The Suit No.226/10 Page : 3/15 plaintiff has filed the present suit against the defendant with the intention of enmity between her husband and the defendant because the husband of the plaintiff and her brother in law had agreed to sell the property measuring 100 sq. yds. for a sum of Rs.24.00 Lacs on 12.07.2009 and they had also received a sum of Rs.4.00 Lacs from the plaintiff and on 12.07.2009 an agreement was executed in favour of the defendant. The defendant was also appeared before the concerned SubRegistrar regarding the execution of relevant documents of the property bearing no. D 594A, out of Khasra No. 561, Gali no.3, Ashok Nagar, Delhi 110093. In this regard, a receipt bearing no. 33, dated 15.09.2009 was issued by the office of SubRegistrar, Seelampur, Delhi in favour of the defendant. The defendant had also sent the demand notice on 12.10.2009 to the husband of the plaintiff through his advocate but the plaintiff did not file any reply and thereafter, the defendant had filed a suit for recovery against the husband of the plaintiff and brother in law of the plaintiff and the same is pending before this Court. So, the suit of the plaintiff is a counterblast and filed with collusion and at the instance of her husband. Hence, the suit of the plaintiff is not maintainable. In the above mentioned suit, the plaintiff and her brother in law filed Suit No.226/10 Page : 4/15 Written Statement on 20.01.2010 and in the Written Statement in that case, the husband of the plaintiff had not written that the defendant is a tenant of the plaintiff in the suit premises. The plaintiff has not filed any rent receipt, agreement regarding the tenancy. It has been submitted that on 28.02.1997, the husband of the plaintiff namely Madan had already sold his share of 50 sq. yds. to the defendant and in this regard GPA was executed in favour of the defendant. The plaintiff has concealed the true facts; the plaintiff has not properly verified the suit.
On merits, it has been submitted that the defendant is the rightful owner of the suit property and his wife was running a Flour Mill in the name and style of M/s. Kamlesh Flour Mill and the said Flour Mill had been sealed on 01.10.2007. It has been submitted that the plaintiff is not the landlady and had not letout the suit property to the defendant. The husband of the plaintiff had already sold the suit property to the defendant on 28.02.1997. It has been submitted that as the defendant is not the tenant of the plaintiff and hence, there is no question arise regarding the arrears of rent as well as tenancy. It has been submitted that on 12.12.2009 or prior to this date, there was no quarrel between the defendant, plaintiff and her husband. It has further been Suit No.226/10 Page : 5/15 submitted that defendant is not the tenant of the plaintiff and so, there is no question regarding termination of the tenancy and arrears of rent. All other allegations made in the plaint have been denied and a prayer has been made for dismissal of the suit with costs.
4. The plaintiff filed replication denying the contents of the WS in so far as they were contrary to the plaint. The contents of plaint were reiterated and reaffirmed.
5. On 16.11.2010, the following issues were framed:
1) Whether the husband of the plaintiff sold his share of 50 sq. yards of the suit property to the defendant on 28.2.1997 for valuable consideration? OPD
2) Whether the plaintiff has no locus standi to file the present suit? OPD
3) Whether there exists a relationship of landlord and tenant between the parties? OPP
4) Whether the plaintiff is entitled for recovery of Rs.60,000/ as prayed for? OPP
5)Whether the plaintiff is entitled to the interest on the aforesaid amount, if so, at what rate and for which period? OPP
6) Relief.
Suit No.226/10 Page : 6/15
6. Thereafter, the parties were directed to lead their evidence. In support of his case, the plaintiff has examined herself as PW1 and filed his examination in chief by way of affidavit Ex.PW 1/A. She also exhibited on record the copies of GPA dated 29.09.1986 executed by Sh. Nathu Ram in favour of Raj Pal and Madan Pal; Agreement to Sell dated 29.09.1986 and the Receipt dated 29.09.1986 as MarkA. The copy of legal notice dated 12.12.2009 as MarkC. The GPA, Gift Deed and Will dated 16.03.1992 executed by Madan Pal in favour of the plaintiff as Ex.PW1/C. The postal receipt dated 22.12.2009 as Ex.PW1/E and the UPC as Ex.PW1/F. The plaintiff has also examined PW2 Shri Nihal Chand who has tendered his examinationin chief by way of affidavit Ex.PW2/1 and thereafter, PE was closed vide order dated 09.08.2011.
7. Defendant, on the other hand, has examined himself as DW1 and filed his examinationinchief by way of affidavit Ex.DW1/1. He has also relied upon the GPA dated 28.02.1997 executed by Madan Pal in favour of the defendant as Ex.DW1/A. The provisional Registration Certificate in the name of M/s. Kamlesh Flour Mill as Ex.DW1/B and the electricity bill issued by the Suit No.226/10 Page : 7/15 BSES for 26.09.2008 as Ex.DW1/C and closed his evidence.
8. I have heard Ld. Counsel for the plaintiff and Ld. Counsel for the defendant and have perused the record carefully. My findings on the issues are as under : ISSUE NO.1 :
9. The onus of proving this issue was on the defendant. Defendant in his WS has claimed that Shri Madan Pal, husband of the plaintiff, had sold 50 sq. yds. of the suit property to the defendants on 28.02.1997 for valuable consideration. In his evidence, defendant has reiterated this fact and has relied upon the GPA Ex.DW1/A. Perusal of this GPA shows that it is an unregistered document and there is no other document showing the payment of consideration by the defendant in favour of the plaintiff. Hon'ble Supreme Court in SLP Petition (C) No. 13917 of 2009 titled as Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana & Anr. decided on 11.10.2011 has held that a power of attorney is not an instrument of transfer in regard to any right, title or 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. It is revocable or terminable at any time unless it is made irrevocable in a manner Suit No.226/10 Page : 8/15 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."
10.An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and Suit No.226/10 Page : 9/15 convey title on behalf of the grantor. It was further reiterated by Hon'ble Supreme Court 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.
11.In the present case the defendant has failed to place on record any document such as Sale Deed or Gift Deed which may be considered as a valid document for transfer of title in the immovable properties. In view of the law laiddown by Hon'ble Supreme Court in Suraj Lamp Case (Supra), I am of the considered opinion that the defendant has failed to discharge the onus cast on him and has not been able to establish that husband of the plaintiff sold his share to the defendant. The issue is accordingly decided in favour of the plaintiff and against the defendant.
Suit No.226/10 Page : 10/15
ISSUES NO.2 AND 3:
12.Both these issues are taken up together as they require common discussion. The onus of proving issue no.2 was on the defendant and onus of proving issue no.3 was on the plaintiff. The defendant has claimed that plaintiff has no locus standi to file the present suit as she has no right, title or interest in the suit property. Defendant also denied any relationship of landlord and tenant between the parties.
13.The plaintiff, on the other hand, claimed herself to be the owner of the suit property by virtue of GPA, Gift Deed and Will all dated 16.03.1992 executed by Sh. Madan Pal in her favour which have been marked as Ex.PW1/C. As noted above, in the foregoing paras, the GPA executed by the husband of the plaintiff is not capable of transferring the title of the property to the plaintiff. The Will executed by Madan Pal is also of no avail to the plaintiff as title in the property is transferred by way of Will only after the death of the executant and not during his lifetime. Hence, even the Will executed by Madan Pal is nothing but the waste paper so long as the executant is alive. So far as the Gift Deed is concerned, no doubt Gift Deed can be a valid mode of conveyance of title but the same requires to be a registered Suit No.226/10 Page : 11/15 document on which appropriate stamp duty has been paid. In the present suit, the Gift Deed relied by the plaintiff is neither a registered document nor is sufficiently stamped Hence, the same is inadmissible in evidence and no title can pass in favour of the plaintiff by virtue of a document which is not in consonance with Section 17 of the Registration Act. Apart from these three documents, there is no other document relied upon by the plaintiff to show her right, title or interest in the suit property. Even in the evidence led by the plaintiff, she has not been able to describe as to what documents were executed by her husband in her favour. She was not even aware about the contents of the plaint. PW2 Nihal Chand was examined by the plaintiff to prove the documents Ex.PW1/C but in his crossexamination, he has also testified that husband of the plaintiff had not executed any documents in favour of the plaintiff with respect to the suit property in his presence and he has not seen any documents in favour of the plaintiff. He also testified that he was not aware of the contents of his affidavit. Thus, the plaintiff has miserably failed to establish that she is having any right, title or interest in the suit property.
14.Similarly, regarding the relationship of landlord and tenant Suit No.226/10 Page : 12/15 between the parties, the plaintiff in para 6 of her affidavit Ex.PW 1/1 testified that defendant had approached him in the year 2007 and requested her to give the suit property on rent. This statement is contrary to her own pleadings. In para 4 of the plaint, the plaintiff has averred that defendant approached the plaintiff in the year 2004 and requested the plaintiff to give 50 sq. yds. portion of the plaintiff on rent for residential purposes and in para 5, she averred that the suit property was letout to the defendant on 01.04.2004. The plaintiff also denied having issued any legal notice to the defendant prior to the filing of the suit which is again contradictory to the averments made in the plaint. PW2 Nihal Chand, on the other hand, has admitted that he is not aware of the contents of his affidavit Ex.PW2/1. He testified that he is only aware regarding the dispute that defendant was letout the suit property at a monthly rent of Rs.5,000/ in the year 2004. he further testified that the terms of tenancy were settled in his presence in April, 2004. The statement of the witness is again contradictory to the averments made in the plaint according to which the defendant was inducted in the suit property as a tenant since 01.04.2004. Hence, in view of the contradictory statements of the plaintiff and PW2, I am of the considered opinion that Suit No.226/10 Page : 13/15 their testimonies cannot be safely relied upon. Apart from these two witnesses, the plaintiff has not examined any other witness nor she has placed on record any documentary evidence which could establish that the defendant was letout the suit property in the year 2004.
15.There is another material fact which disproves the version of the plaintiff. According to the plaintiff, defendant had approached the plaintiff to take the suit property on rent in the year 2004 as he had established a flour mill (Aata Chakki) in his portion. Defendant in his evidence has placed on record Provisional Licence for running the Aata Chakki as Ex.DW1/B perusal of which shows that the licence for the Aata Chakki was issued in the year 1994 itself i.e. a decade prior to the defendant approaching the plaintiff for taking the suit property on rent. Had the requirement of defendant for residence had arisen due to the establishment of the Aata Chakki, he would have approached the plaintiff in the year 1994 and not in the year 2004, as has been claimed by the plaintiff. Hence, from the material available on record, I am of the considered opinion that the plaintiff has failed to discharge the onus cast on her The issues are accordingly decided in favour of the defendant and against the plaintiff.
Suit No.226/10 Page : 14/15
ISSUES NO.4 & 5 :
16.Both these issues are taken up together as they require common discussion. The onus of proving these issues was on the plaintiff. However, in view of my findings on issues no. 2 and 3 hereinabove, since the plaintiff has failed to even establish any right, title or interest in the suit property and the fact that defendant was letout the suit property, there cannot be any occasion for grant of relief, as prayed by the plaintiff in these issues. The issues are accordingly decided in favour of the defendant and against the plaintiff.
ISSUE NO.6 (RELIEF) :
17.Thus, in view of my findings on the aforesaid issues, I am of the considered opinion that the plaintiff has failed to establish his case, he is not entitled to any relief. Accordingly, the suit is dismissed. No orders as to costs. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open Court Dated : 27th January, 2012 (ANIL KUMAR SISODIA) Senior Civil JudgeCumRent Controller (NE) Karkardooma Courts, Delhi.
Suit No.226/10 Page : 15/15
Suit No.226/10
27.01.2012 :
Present : Husband of the defendant.
None for the plaintiff.
Vide separate judgment announced in open court today, the suit of the plaintiff is dismissed. The parties shall bear their own costs.
File be consigned to record room.
SCJCUMRC (NE) KKD. COURTS/DELHI/27.01.2012.
Suit No.226/10 Page : 16/15