Delhi District Court
Jallo Devi vs Chetan Lal Jain on 30 November, 2024
BEFORE SH. RAKESH KUMAR SHARMA,
PRESIDING OFFICER, INDUSTRIAL TRIBUNAL-II,
ROUSE AVENUE DISTRICT COURT, NEW DELHI
(1) RCA SCJ NO. 04/2016
SH. GUNENDER KUMAR JAIN
S/O LATE SH. CHETAN LAL JAIN
R/O B-1/642, STREET NO. 7, MAIN 100 FT. ROAD
CHANDERLOK SHAHDRA, DELHI-110032
VERSUS
SH. MAHAVIR PRASAD
S/O LATE SH. DALLE RAM
R/O 1/2989, RAM NAGAR,
LONI ROAD, SHAHDRA, DELHI
Date of Institution :- 04.03.2010
AND
(2) RCA DJ NO. 188/2016
JALLO DEVI
W/O DALLE RAM (SINCE DECEASED)
NOW REPRESENTED BY HER LRs.
SMT. ANGOORI DEVI
W/O SH. MAHAVIR PRASAD
R/O 1438-B/5 (OLD), 1/2989 (NEW)
Digitally
signed by
RAKESH
RAKESH KUMAR
KUMAR SHARMA
RAM LONE ROAD, SHAHDRA, DELHI SHARMA Date:
2024.12.02
20:23:39
+0530
GUNENDER KUMAR JAIN VS. MAHAVIR PRASAD
AND
JALLO DEVI VS. CHETAN LAL JAIN Page no. 1/14
VERSUS
SHRI CHETAN LAL JAIN
S/O SH. MAM CHAND JAIN (SINCE DECEASED)
NOW REPRESENTED BY HIS LRs.
(a) SHRI NAND KISHORE
S/O LATE SH. CHETAN LAL
(b) SHRI GUNENDER KUMAR
S/O LATE SH. CHETAN LAL (SINCE DECEASED)
NOW REPRESENTED BY HIS LRs.
1. SMT. TRISHALA JAIN (WIFE)
2. SHRI ASHOK JAIN (SON)
3. SHRI ARVIND JAIN (SON)
4. MS. VARSHA JAIN (DAUGHTER)
5. MS. RITU JAIN (DAUGHTER)
6. MS. ANITA TAYAL (DAUGHTER)
(c) SHRI NARENDER KUMAR
S/O LATE SH. CHETAN LAL
(d) SHRI SUSHIL KUMAR
S/O LATE SH. CHETAN LAL
ALL RESIDENTS OF VILLAGE DOGHAT
DISTT. MEERUT (U.P.)
Date of Institution :- 07.04.2006 RAKESH Digitally
by RAKESH
signed
KUMAR Date: 2024.12.02
KUMAR SHARMA
SHARMA 20:23:52 +0530
GUNENDER KUMAR JAIN VS. MAHAVIR PRASAD
AND
JALLO DEVI VS. CHETAN LAL JAIN Page no. 2/14
Date of Judgment :- 30.11.2024
JUDGMENT
1. These two matters are appeals filed by the parties against common judgment and decree dated 25.02.2006 (hereinafter "impugned judgment") passed by ld. Civil Judge whereby one suit for declaration filed by Smt. Jallo Devi (hereinafter 'the plaintiff') and two suits, (both for recovery of rent) filed by Sh. Chetan Lal Jain (hereinafter 'the defendant') were dismissed. Since these suits were disposed of vide common judgment, the present appeals are also being disposed of by this common judgment.
2. Admitted facts are that
(a) Sh. Dalle Ram (husband of the plaintiff) was the owner of the house bearing no. 1438-E/5 (new No. 1/2989) built on plot no. E-1A/9 measuring 140 sq. yards situated in Khasra no. 603, Village Sikdarpur, Ilaka Shahdra, Loni Road, Delhi.
Digitally signed by RAKESH(b) Sh. Dalle Ram expired on 07.02.1979. RAKESH KUMAR SHARMA KUMAR Date:
SHARMA 2024.12.02 20:24:08 +0530
(c) The defendant sent a notice dated 08.09.1980 alleging that Sh. Dalle Ram had sold a portion measuring 78 sq. yards out of the said property (hereinafter 'the suit premises') to him vide documents viz. GPA, Agreement, Affidavit and receipt, all dated 13.12.1977 and that vide a General Power of Rent, on the request of Sh.Dalle Ram, the said portion was let out to him and thus, the defendant had become owner of the suit premises and Sh. Dalle Ram became a tenant under him. After the death of Sh. Dalle Ram, the GUNENDER KUMAR JAIN VS. MAHAVIR PRASAD AND JALLO DEVI VS. CHETAN LAL JAIN Page no. 3/14 plaintiff and her son Sh. Mahabir Prasad became tenants in the suit premises under the defendant.
3. The plaintiff filed the suit for declaration thereby declaring the documents alleged by the defendant in his notice as null and void.
4. The defendant filed the aforesaid two suits for recovery of rent against the plaintiff and Sh. Mahabir Prasad on the basis of the aforesaid documents mentioned in the notice.
5. Vide impugned judgment, ld. Trial Court held that the documents were validly executed and thus, the suit filed by the plaintiff was dismissed. However, ld. Trial Court also held that the defendant does not become owner of the suit premises on the basis of the said documents and dismissed both the suits for recovery of rent filed by the defendant also.
6. Both the parties have filed their respective written arguments.
7. The plaintiff relied upon the following authorities in support of her contentions:
(a) Order dated 01.11.2023 passed by Hon'ble Supreme Digitally signed Court in Civil Appeal no. 1598 of 2023 Shakeel by RAKESH RAKESH KUMAR Ahmed vs. Syed Akhlaq Hussain;
KUMAR SHARMA SHARMA Date:
2024.12.02 20:24:24 +0530 GUNENDER KUMAR JAIN VS. MAHAVIR PRASAD AND JALLO DEVI VS. CHETAN LAL JAIN Page no. 4/14
(b) 2011 Legal Eagle (SC) 878 Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr., and
(c) AIR 2003 DELHI 120 G. Ram vs. Delhi Development Authority.
8. The defendant relied upon the following authorities in support of his contentions:
(a) Order dated 11.03.2019 passed by Hon'ble Supreme Court in Civil Appeal No. 6706 of 2013 in Mohinder Singh vs. Jaswant Kaur (D) Through LRs.,
(b) Order dated 05.05.2021 passed by Hon'ble High Court of Delhi in RSA No. 27/2021 Raj Kaur vs. Mitlesh & Ors., as reported in Indian Kanoon, and
(c) 193 (2012) DELHI LAW TIMES 168, Hardip Kaur vs. Kailash & Anr..
9. I have heard ld. Counsels for the parties and have also gone through the record including the written arguments filed by them as well as the authorities relied upon by them.
10. Mainly two questions arise for determination:
(a) Whether Sh. Dalle Ram executed the documents relied upon by the defendant?
(b) If the first question is answered in affirmative, the effect of the documents? RAKESH by Digitally signed RAKESH KUMAR KUMAR SHARMA SHARMA Date: 2024.12.02 20:24:33 +0530 GUNENDER KUMAR JAIN VS. MAHAVIR PRASAD AND JALLO DEVI VS. CHETAN LAL JAIN Page no. 5/14
(a) Whether the documents relied upon by the defendant were executed by Sh. Dalle Ram?
11. It was contended by the plaintiff that as per Section 110 of the Indian Evidence Act, where a person is shown to be in possession of something, the burden of proving that he is not the owner of the said thing is on the person who alleges so. The contention is that admittedly, the plaintiff is in the possession of the suit premises. Hence, burden of proving that the plaintiff is not the owner of the same, is on the defendant.
12. There cannot be any doubt about this proposition of law. However, I am of the considered view that after the evidence has been led by both the parties, the question of burden of proof pales into insignificance. The matter is to be decided as per evidence placed before the Court.
13. A perusal of the Trial Court record reveals that the plaintiff herself examined one Sh. Bal Bahadur Mathur, Advocate as PW3. The entire testimony (including the cross-examination) of PW3 Sh. Bal Bahadur Mathur is as follows:
"PW-3 Sh. Bal Bahadur Mathur Shri Dallay ram came to me as a client. The Will a certified copy of which is Ex.PW1/4 was drafted by me on Digitally signed the instructions of the deceased testator. He put his thumb impression on the said Will in my presence, after reading by RAKESH RAKESH KUMAR SHARMA KUMAR Date:
SHARMA 2024.12.02 20:24:41 +0530 and understanding the same to be correct. I read over and GUNENDER KUMAR JAIN VS. MAHAVIR PRASAD AND JALLO DEVI VS. CHETAN LAL JAIN Page no. 6/14 explained the contents of the Will in vernacular to Shri Dalley Ram and only then he put his thumb impression after acknowledging the same as true. His son Mahavir Pd. was also present at that time and singed as a attesting witness to the Will as a marginal witness in my presence along with me. I identify the signature of Shri Mahavir Pd. and myself on the copy of the original Will (seen on the record summoned from the office of Sub Registrar and my signatures. We also signed before the Sub Registrar along with the testatory & witness at the back of the document. xxxx Firstly the Will was thumb marked by the testator Shri Dalley Ram and thereafter Shri Mahavir Pd. signed as a marginal witness. I do not exactly remember as 12 years have elapsed if Shri Dallay Ram and Mahavir Pd. came at the same time to me. Shri Dallay Ram was my client. I do not remember if he got executed any document prior to the same through me. document i.e. agreement dated 12.12.77 bears my signatures at point X. It bears my stamp and signatures and thumb impression of Shri Dallay Ram.
I have seen the original agreement, which is Ex.PW3/D1. Similarly the power of attorney Ex.PW3/D2. also bears my signatures and thumb impression of Dallay Ram. These documents were also written by me on the instructions of Dallay Ram and were read over to him. Ex.PW3/D3 is the power of attorney which also bears my signatures, and thumb impression of Dallay Ram and was written on his instructions and was read over to him.
Receipt Ex. PW3/D4 is also thumb marked by Dallay Ram and signed by me the same was prepared under his instructions and read over to him. It was got registered in the office of Sub Registrar, at the back of the receipt, there is thumb mark of Dallay Ram and my signatures at place A. and that of Dallay Ram at point B, Digitally signed by and signatures of Chetan Lal are at point C. This was read RAKESH KUMAR RAKESH KUMAR SHARMA over and explained to Dallay Ram."
(underlining by me) SHARMA Date:
2024.12.02 20:24:51 +0530 GUNENDER KUMAR JAIN VS. MAHAVIR PRASAD AND JALLO DEVI VS. CHETAN LAL JAIN Page no. 7/14
14. It is clear from the testimony of PW3 Sh. Bal Bahadur Mathur examined by the plaintiff herself that Sh. Dalle Ram executed the agreement Ex. PW3/D1, General Power of Attorney Ex. PW3/D2, Power of Attorney Ex.PW3/D3 and receipt Ex. PW3/D4. As noted above, PW3 specifically stated that these documents were prepared at the instance of Sh. Dalle Ram, were read over to him and that the receipt was got registered also.
15. Further, the receipt Ex. PW3/D4 and Special Power of Attorney Ex.PW3/D3 are registered documents. I am of the considered view that execution of the documents is more believable once the documents is registered. Hence, I am of the considered view that all these documents stands proved on record. RAKESH by Digitally signed RAKESH KUMAR KUMAR SHARMA SHARMA Date:
2024.12.02 20:25:05 +0530
16. As far as the document Power of Rent is concerned, the defendant examined one Handwriting Expert Sh. S. P. Singh as DW3 who proved his report as Ex. DW3/1. As per the report, thumb impression on Special Power of Attorney at two places and General Power of Rent dated 28.01.1978 Ex. DW1/D at two places, tallied with the admitted thumb impression of Sh. Dalle Ram. Nothing has come in the cross-examination of DW3 to dis-believe his testimony and report.
RAKESH Digitally
by RAKESH
signed
KUMAR KUMAR SHARMA
Date: 2024.12.02
SHARMA 20:25:19 +0530
17. On the own showing of the plaintiff, Sh. Dalle Ram was a money-lender. Money-lenders, generally, are very smart and well- versed with the ways of the world. It is absolutely un-believable that GUNENDER KUMAR JAIN VS. MAHAVIR PRASAD AND JALLO DEVI VS. CHETAN LAL JAIN Page no. 8/14 Sh. Dalle Ram did not know the nature of those documents, particularly, when two of the documents are registered.
18. It was contended on behalf of plaintiff that no attesting witnesses of any of the document was examined and hence, the documents have not been proved. I do not find any force in the contention. As noted above, thumb impression of Sh. Dalle Ram on the documents has been proved by PW3 Sh. Bal Bahadur Mathur and DW3 the Handwriting Expert. Hence, the contention is rejected.
19. It was also contended on behalf of plaintiff that the alleged Power of Rent is only a carbon copy and the original has not been produced.
No doubt, the original Power of Rent has not been placed on record. The carbon copy of the same bears the thumb impression of Sh. Dalle Ram as reported in his report by DW3 Sh. S. P. Singh, Handwriting Expert. It has been held in Mohinder Singh (supra) relied upon by ld. Counsel for Defendant as follows:
"... The High Court held that a carbon copy of the documents which carbon copy is signed by both the parties cannot be termed as an original under Section 62 of the Evidence Act. This opinion of the High Court is absolutely incorrect and against the provision of Section 62 of the Evidence Act. This carbon copy was prepared in the same process as the original document and once it is signed by both the parties, it assumes the character of the original Digitally signed by RAKESH document..."
RAKESH KUMAR SHARMA KUMAR Date:
SHARMA 2024.12.02 (underlining by me) 20:25:37 +0530 GUNENDER KUMAR JAIN VS. MAHAVIR PRASAD AND JALLO DEVI VS. CHETAN LAL JAIN Page no. 9/14
20. Hence, as per the authority and Section 62 of the Evidence Act, the carbon copy is to be treated as the original document. Hence, the contention of the plaintiff in this regard is rejected.
21. In view of the above discussion, it is held that execution of the documents relied upon by the defendant is proved.
(b) Effect of the documents:
22. It has been held in Hardeep Kaur (supra) relied upon by the defendant as follows:
"19: ..... In Ramesh Mohan vs. Raj Krishan PLR (1984) 86 P&H 2011 ..... the Court held that the agreement "of itself"
may not create any interest in the property but the words "an interest in property which forms the subject matter of the tenancy" in Section 202 of the Contract Act are of wider amplitude than the words "an interest in or charge on such property" in Section 54 of the Transfer of Property Act and where the vendor 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. The Court held that interest was created in the suit property when its possession was delivered and the total sale consideration was received in pursuance of the agreement under Section 54 of the Transfer of Property Act, 1882. The Court further held that the agreement was not a mere agreement to sell, but more than that because the transaction was complete in all respects except the execution of the regular sale deed and the registration thereof. Thus, interest was created in the property and Section 202 of the Contract Act was applicable. ..."
RAKESH by RAKESH
Digitally signed
KUMAR KUMAR SHARMA
GUNENDER KUMAR JAIN VS. MAHAVIR PRASAD SHARMA
Date: 2024.12.02
20:25:45 +0530
AND
JALLO DEVI VS. CHETAN LAL JAIN Page no. 10/14
and that
"19: .... In Suraj Lamp and Industries Private Limited v. State of Haryana, 183 (2011) DLT 1 (SC), the Supreme Court held that General Power of Attorney transactions do not convey any title or interest in an immovable property except to the extent of limited rights granted under Section 53A of the Transfer of Property Act, 1882 and Section 202 of the Contract Act, 1872. The Supreme Court held that General Power of Attorney transactions cannot be treated as complete transfer but they can be treated as existing agreement of sale and the attorney holder can execute the deed of conveyance in exercise of the power granted. The Supreme Court further held that the General Power of Attorney transactions executed before the date of the judgment can be relied upon to apply for regularization of allotments/leases. ..."
and that "19: .... In Ramesh Chand v. Suresh Chand, 188 (2012) DLT 538, this Court held that the Power of Attorney given for a consideration coupled with interest is irrevocable under Section 202 of the Contract Act, 1872 and subsists even after the death of the executant. This Court further held that the purchaser may not be a classical owner as would be an owner under the registered sale-deed but surely he would have better rights/entitlement of possession than the person who is in actual physical possession. This Court held that the Supreme Court in Suraj Lamp and Industries Private Limited v. State of Haryana (supra) has reiterated the rights in an immovable property under Section 53A of the Transfer of Property Act, 1882 as well as Section 202 of the Indian Contract Act, 1872...."
(underlining by me) RAKESH Digitally by RAKESH signed GUNENDER KUMAR JAIN VS. MAHAVIR PRASAD KUMAR Date: 2024.12.02 KUMAR SHARMA AND SHARMA 20:25:53 +0530 JALLO DEVI VS. CHETAN LAL JAIN Page no. 11/14
23. As noted above, it has been proved that the receipt was executed by Sh. Dalle. Hence, the Power of Attorney was executed for consideration. Further, an interest in the suit premises was created by way of documents. Hence, in view of the Section 202 of Indian Contract Act, the Power of Attorney given by Sh. Dalle was irrevocable and subsisted, even after his death.
24. It was contended on behalf of plaintiff that possession of suit premises always remained with the plaintiff and was never handed over to the defendant and that there cannot be any creation of alleged tenancy without transfer of possession.
It is nowhere the case of the defendant that the possession of the suit premises was ever given to the defendant. However, I am of the considered view that the intention of the parties is to be seen to know real nature of the transaction.
I have held above that all the documents relied upon by the defendant have been proved to be executed by Sh. Dalle Ram. Taking all the documents into consideration, it appears to me that Sh. Dalle Ram transferred the ownership of the suit premises to the defendant but the plaintiff continued to remain in the possession of the suit premises. After sometime, the defendant asked for possession of the suit premises and at that stage, it was agreed that Sh. Dalle shall be treated as a tenant in the suit premises under the defendant and shall pay rent for user of the premises and thus, notionally, possession was handed over to the defendant and thereafter, back to Sh. Dalle Ram as tenant.
RAKESH Digitally by RAKESH signed GUNENDER KUMAR JAIN VS. MAHAVIR PRASAD KUMAR Date: 2024.12.02 KUMAR SHARMA AND SHARMA 20:26:00 +0530 JALLO DEVI VS. CHETAN LAL JAIN Page no. 12/14
25. As held in Hardeep Kaur (supra) relied upon by the defendant, the defendant may not be a classical owner as would be an owner under the registered sale deed, in my considered view, he had a right to recover rent from the plaintiff. Hence, the contention of the plaintiff in this regard is also rejected.
26. I have carefully gone through the authorities relied upon by the plaintiff. There cannot be any dispute about the propositions of law laid down in the authorities but it is a settled law that each case is to be decided according to its own facts. I am of the considered view that facts in the present case are materially different from those in the authorities relied upon by the plaintiff. No question of applicability of Section 202 of the Contract Act arose in any of the authorities relied upon by the plaintiff. Further, Suraj Lamp (supra) relied upon by the plaintiff was considered in Hardip Kaur (supra) relied upon by the defendant. Hence, I am of the considered view that, with great respect, none of the authorities relied upon by the plaintiff is applicable to be present case.
27. It appears that no arguments were advanced by the parties regarding applicability of Section 202 of the Contract Act and hence, the Trial Court fell in error.
28. In view of the above discussions, both the points are decided in favour of the defendant and against the plaintiff. The appeal Digitally signed RAKESH by RAKESH GUNENDER KUMAR JAIN VS. MAHAVIR PRASAD KUMAR KUMAR SHARMA AND SHARMA Date: 2024.12.02 20:26:20 +0530 JALLO DEVI VS. CHETAN LAL JAIN Page no. 13/14 filed by the plaintiff is dismissed. The appeal filed by the defendant is allowed. Both the suits filed by the defendants are allowed. A decree for Rs. 5250/- with future interest @ 12 % per annum from today till realization with costs is hereby passed in favour of the defendant and against the plaintiff in suit no. 87/2003 and a decree for Rs. 5400/- with future interest @ 12 % per annum from today till its realization with costs is hereby passed in favour of the defendant and against the plaintiff in suit no. 88/2003.
29. Decree sheet be prepared accordingly.
30. The original of this judgment be placed in Appeal RCA SCJ No. 04/2016, Gunender Kumar Jain vs. Mahavir Prasad and a copy be placed in the other Appeal file.
31. All TCR be sent back with copies of this judgment.
32. Both appeal files be consigned to record room.
Dictated and announced in the open Court on 30th November, 2024. RAKESH Digitally signed by RAKESH KUMAR KUMAR SHARMA Date: 2024.12.02 SHARMA 20:26:27 +0530 (RAKESH KUMAR SHARMA) Presiding Officer Industrial Tribunal-II, Rouse Avenue District Court New Delhi GUNENDER KUMAR JAIN VS. MAHAVIR PRASAD AND JALLO DEVI VS. CHETAN LAL JAIN Page no. 14/14