Delhi District Court
Sh Om Prakash vs Sh Ramesh Chander on 7 June, 2024
IN THE COURT OF DISTRICT JUDGE-04,
(PRESIDED OVER BY: ANIL CHANDHEL)
WEST DISTRICT, THC, DELHI
CNR NO. DLWT01-005355-2021
RCA NO. 42/2021
Shri Om Prakash,
S/o Shri Banwari Lal,
R/o T-781, Baljeet Nagar,
New Delhi. ....Appellant.
Versus
SHRI RAMESH CHANDER
S/o Shri Banwari Lal,
R/o T-781, Baljeet Nagar,
New Delhi. ...Respondent
REGULAR CIVIL APPEAL UNDER
SECTION 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED
09.03.2021, PASSED BY LD. SCJ/RC
WEST, TIS HAZARI COURTS, DELHI IN
CS SCJ No. 608314/2016
DATE OF INSTITUTION : 05.08.2021
JUDGMENT RESERVED ON : 22.05.2024
JUDGMENT PRONOUNCED ON : 07.06.2024
Counsel for the Appellants : Mr. Harpreet Singh, Advocate.
Counsel for the Respondents : Mr. Manu Sisodia, Advocate.
ANIL
________________________________________________________________ CHANDHEL
Om Prakash vs. Ramesh Chander Page No. 1 of 26
RCA NO. 42/2021 Digitally signed by
ANIL CHANDHEL
Date: 2024.06.07
16:10:09 +0530
JUDGMENT
1. This regular first Appeal, under Section 96 of CPC, has been preferred by the Appellant against the judgment and decree dated 09.03.2021, passed by the Court of Ld. SCJ/RC, West, Tis Hazari Courts, Delhi in CS SCJ No. 608314/2016. In terms of the impugned judgment /decree, the Ld. Trial Court has decreed the civil suit, for the prayers of mandatory injunction.
2. Proceedings before the Court of Ld. SCJ/RC:
It will be appropriate to recapitulate the proceedings before Ld. Trial Court and the same are being summed up in brief in the paras stated hereinbelow:
2.1 The Respondent/Plaintiff has filed the civil suit for seeking prayers for mandatory injunction and mesne profits. The averments made in the plaint by the Respondent/ Plaintiff, are summed in brief, in the paras hereinbelow:
i. The Plaintiff is the owner of the property bearing no.
T-781, Baljeet Nagar, New Delhi and the said property was purchased by the Plaintiff from the previous owner. After the purchase of the said property, the Plaintiff had obtained the electricity and water connections in the said premises in his own name.
Digitally signed by ANIL ________________________________________________________________ ANIL CHANDHEL CHANDHEL Date:
2024.06.07 Om Prakash vs. Ramesh Chander Page No. 2 of 26 16:10:16 +0530 RCA NO. 42/2021 ii. The Defendant is the real brother of the Plaintiff and on account of the close relations, the Plaintiff had permitted the Defendant to live in one room on the first floor, along with the temporary shed of the second floor in the property bearing no. T-781, Baljeet Nagar, New Delhi (hereinafter referred to as, 'suit property').
iii. After taking the said premises, the Defendant started residing therein along with his other family members. The Defendant became dishonest and tried to grab the suit property and the Plaintiff had requested the Defendant to vacate and hand over the vacant and peaceful possession of the said premises to the Plaintiff but the Defendant has refused to vacate the same.
iv. The Defendant is a licensee in respect of one room of the first floor and a temporary shed on the second floor and over all control over the said premises is that of the Plaintiff and the Defendant has no legal right over the said premises and he was permitted to live there on account of the close relations.
v. The Plaintiff has terminated the said license granted, vide notice dated 03.11.2014. After termination of the license, the Defendant has no legal right to retain ________________________________________________________________ ANIL Om Prakash vs. Ramesh Chander Page No. 3 of 26 CHANDHEL RCA NO. 42/2021 Digitally signed by ANIL CHANDHEL Date: 2024.06.07 16:10:24 +0530 the possession of suit property and is an unauthorized occupant in the same. The Defendant failed to vacate the suit property despite repeated requests of the Plaintiff from time to time, followed by a legal demand notice dated 03.11.2014 and reminder dated 21.11.2014.
vi. The Defendant is also liable to pay the license free in respect of the said premises from the date of filing of the suit till the Defendant vacates and hands over the possession in respect of the suit property at the rate of Rs.3,000/- per month.
vii. The Defendant has neither vacated the said premises nor paid the license fee/damages for use and occupation in respect of the said premises.
viii. On 02.01.2015, the Defendant openly threatened that he would part with the possession of the said licensed premises to some other person with the object to deprive the Plaintiff from the taking possession in respect of the suit property.
ix. The respondent/ Plaintiff has filed the prayed for mandatory injunction for directing the Defendant to vacate the suit property and further to make payment of mesne profits at rate of Rs.3,000/- per month.
2.2 The Appellant/Defendant was duly served with the summons ________________________________________________________________ Om Prakash vs. Ramesh Chander Page No. 4 of 26 Digitally signed by RCA NO. 42/2021 ANIL ANIL CHANDHEL CHANDHEL Date:
2024.06.07 16:10:30 +0530 of the suit. The Appellant/Defendant has filed the written statement. The Appellant/Defendant has denied the averments of plaint in his written statement. The averments made by the Appellant/Defendant, in the written statement, are summed up in brief, in the paras hereinbelow:
i. There is no cause of action in favour of the Plaintiff and the plaint is liable to be rejected under Order VII Rule 11 of CPC. The Plaintiff has suppressed the true and material facts from the Court, hence the suit is liable to be dismissed on this ground alone.
ii. The Plaintiff has filed the suit as counter blast to the suit for partition filed by Shri Gobind Ram titled as Shri Gobind Ram Versus Ramesh Chander & Others. The said suit is pending before Court of Ld. ADJ, Tis Hazari Court, Delhi.
iii. The suit for mandatory injunction filed by the Plaintiff is not maintainable in the present form and it is liable to be dismissed. The Plaintiff under the garb of mandatory injunction wants to get possession of property without paying ad-valorem court fee.
iv. The suit is hit by Section 41(h) of Specific relief Act. The suit property is ancestral property of the Defendant, which was purchased by his father and ________________________________________________________________ ANIL Om Prakash vs. Ramesh Chander Page No. 5 of 26 CHANDHEL RCA NO. 42/2021 Digitally signed by ANIL CHANDHEL Date: 2024.06.07 16:10:36 +0530 he is living in this property from his child hood.
v. The Defendant is residing in these premises from very beginning. The school record of the Defendant also shows the suit property as address of the Defendant. Since, the Plaintiff is neither owner of the suit property nor any right to request to the Defendant to vacate the suit property thus no question of calling him to vacate the same ever arose.
vi. Since the suit property is ancestral property, the Plaintiff has no right to either terminate the licence or claim the license fee from the Defendant.
vii. The date and incident as described by the Plaintiff in the present paragraph are fictitious and has been created in order to make out a false ground for instituting a false case of injunction. Since there was no occasion to file the present suit, the Plaintiff has created these false and frivolous grounds in the replying paragraph. The Defendant has only shelter to live in and keep his family under the same thus there is no reason for his to create third party interest in the suit property.
2.3. The Appellant has not filed any replication to the written statements of the Respondent. On the basis of pleadings of ________________________________________________________________ Om Prakash vs. Ramesh Chander Page No. 6 of 26 Digitally signed by RCA NO. 42/2021 ANIL ANIL CHANDHEL CHANDHEL Date:
2024.06.07 16:10:42 +0530 the parties, the Ld. Trial Court framed the following Issues on 20.09.2017:-
i. Whether the Plaintiff is entitled to the decree of mandatory injunction, as prayed for? OPP.
ii. Relief.
The following additional issue was framed on 08.03.2021:-
iii. Whether the Plaintiff is entitled to damages/license fee in respect of the suit premises from the Defendant or not?, if yes, then at what rate and for what period? OPP.
2.4. The Respondent has led his evidence and examined 5 witnesses in the matter. The Respondent has himself appeared as PW-1 in the matter. The PW-1 has reiterated the contentions of the plaint in his examination in chief. The PW-1 has exhibited and relied upon the following documents in his examination-in-chief:
i. Exhibit PW-1/1: Photocopy of the payment receipt dated 05.10.1992.
ii. Exhibit PW-1/2: Photocopy of the GPA dated 05.10.1992 iii. Exhibit PW-1/3: Photocopy of affidavit iv. Exhibit PW-1/4: Photocopy of Agreement to Sell ________________________________________________________________ ANIL Om Prakash vs. Ramesh Chander Page No. 7 of 26 CHANDHEL RCA NO. 42/2021 Digitally signed by ANIL CHANDHEL Date: 2024.06.07 16:10:48 +0530 dated 05.10.1992.
v. Exhibit PW-1/5: Photocopy of Will dated
05.10.1992
vi. Exhibit PW-1/6: Site Plan
vii. Exhibit PW-1/7: Notice dated 03.11.2014.
viii. Exhibit PW-1/8: The Courier Receipt.
ix. Exhibit PW-1/9: Reminder of notice dated
21.11.2014.
x. Exhibit PW-1/10: Courier Receipt.
The PW-1 was cross-examined by the Ld. Counsel for the Appellant and was discharged, upon conclusion of his cross-
examination.
2.4.1. The PW-2 is Mr. Ismail Khan and his testimony is oral. The PW-2 has not relied upon any documents in his examination- in-chief. The PW-2 was cross-examined by the Ld. Counsel for the Appellant and was discharged, upon conclusion of his cross-examination.
2.4.2. The PW-2 is Ms. Pushpa and her testimony is oral. The PW-
3 has not relied upon any documents in his examination-in- chief. The PW-3 was cross-examined by the Ld. Counsel for the Appellant and was discharged, upon conclusion of his cross-examination.
2.4.3. Thereafter, the Respondent summoned the records from the House Tax Department, Karol Bagh Zone, Delhi and ________________________________________________________________ Digitally signed by Om Prakash vs. Ramesh Chander Page No. 8 of 26 ANIL CHANDHEL ANIL RCA NO. 42/2021 CHANDHEL Date:
2024.06.07 16:10:54 +0530 examined the PW-4, Mr. Sachin Kumar, SSA for production of the same. The PW-4 has stated that the summoned record is not available in the office.
2.4.4. The Respondent has examined official witness from the House Tax department as PW-5, who has produced the property tax receipt, i.e., Ex.PW-5/A. 2.5. Thereafter the Appellant led his evidence and examined 3 witnesses on his behalf. The Appellant has appeared as the DW-1. The DW-1 has reiterated the contentions raised in the written statement in his examination in chief and did not rely upon/produce any document. The DW-1 was cross-examined by the Ld. Counsel for the Respondent and was discharged, upon conclusion of his cross-examination.
2.5.1. The DW-2 is Mr. Ram Niwas and his testimony is oral. The DW-2 has not relied upon any document in his examination in chief. The DW-2 was cross-examined by the Ld. Counsel for the Respondent and was discharged, upon conclusion of his cross-examination.
2.5.2. The DW-3 is Mr. Satbir Singh and his testimony is oral. The DW-3 has relied upon one document in his examination in chief, i.e., Exhibit DW-3/1: Photocopy of Aadhar Card. The DW-3 was cross-examined by the Ld. Counsel for the Respondent and was discharged, upon conclusion of his cross-examination.
Digitally ________________________________________________________________ signed by ANIL Om Prakash vs. Ramesh Chander Page No. 9 of 26 ANIL CHANDHEL CHANDHEL Date:
RCA NO. 42/2021 2024.06.07
16:11:00
+0530
2.6. After conclusion of the evidence, the Court of Ld. SCJ heard the arguments and decreed the suit for the prayer of mandatory injunction, whereas the prayer of mesne profits was rejected.
3. The Grounds of Appeal:
3.1. The notice of the present appeal was issued to the Respondent and he entered appearance. The Appellant filed the present appeal on the basis of the following grounds:
i. The Respondent has himself submitted that the Appellant was residing in the suit property even prior to the year 1990, therefore, there was no occasion for the Respondent to purchase the suit property in the year 1992 and granted any license to the Appellant.
ii. The Respondent has stated in the cross-examination that he has signed the affidavit, without understanding the contents of the same and the aforesaid statement vitiates his evidence.
iii. The documents, i.e., Exhibit PW-1/1 to Exhibit PW-
1/5, relied upon by the Respondent, are unregistered and they do not have any value in the law. The Respondent did not have the previous chain of the documents, which shows that the Exhibit PW-1/1 to Exhibit PW-1/5 were forged. Further, the Respondent did not examine Hanuman Prasad, despite the ________________________________________________________________ Om Prakash vs. Ramesh Chander Page No. 10 of 26 RCA NO. 42/2021 Digitally signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.06.07 16:11:06 +0530 suggestions that no such person exists.
iv. The witnesses produced by the Respondent have failed to prove the Exhibit PW-1/1 to Exhibit PW-1/5 and their entire testimony is contrary to the case of the Respondent.
v. Mere deposit of the house tax does not confer any right in the property, as the house tax department, does not inquire about the ownership, before accepting the payment of the house tax.
[ vi. The judgment is erroneous on the facts and law.
vii. The remaining grounds are reproduction of the afore-
mentioned contentions and are generic averments about the judgment being erroneous.
4 Submissions:
4.1. Ld. Counsel for the parties have addressed their arguments.
Ld. Counsel for the Appellant has submitted that the judgment of Ld. SCJ is not sustainable as there was apparent concealment of facts, on the part of the Respondent. It is submitted that the Appellant failed to prove his ownership and therefore was not entitled to a decree for mandatory injunction. It is submitted that the documents, relied by the Respondent were unregistered and cannot be made basis of interpreting any right/better right in the suit property. It is ________________________________________________________________ Om Prakash vs. Ramesh Chander Page No. 11 of 26 ANIL RCA NO. 42/2021 CHANDHEL Digitally signed by ANIL CHANDHEL Date: 2024.06.07 16:11:12 +0530 submitted that the Respondent has failed to prove the story of license and the evidence led by him was contradictory.
4.2. Ld. Counsel for the Respondent has submitted that the Respondent had a better right, title and interest int the suit property in terms of documents proven on record by him. It is submitted that Respondent did not have to prove the absolute ownership and only a comparative better right is sufficient to sustain the suit. It is submitted that the Appellant has miserably to prove his defence of the suit property being ancestral in nature. It is submitted that the Appellant has not relied upon or proved a single document in the matter and therefore, the decree against him was completely justified.
5. The points for determination, conclusions and the reasons for such conclusions:
5.1. The Court of Ld. SCJ has framed two issues in the matter, which are being reproduced hereinbelow:
i. Whether the Plaintiff is entitled to the decree of mandatory injunction, as prayed for? OPP. ii. Whether the Plaintiff is entitled to damages/license fee in respect of the suit premises from the Defendant or not?, if yes, then at what rate and for what period? OPP.
The Issue No. 2 has been decided against the Respondent. The Respondent has not challenged the same, either in ________________________________________________________________ Digitally signed by Om Prakash vs. Ramesh Chander Page No. 12 of 26 ANIL ANIL CHANDHEL RCA NO. 42/2021 CHANDHEL Date:
2024.06.07 16:11:19 +0530 appeal or by filing any cross objections. Therefore, the only point for determination is whether the aforementioned Issue No.1 has been decided correctly and the finding thereon are sustainable in law. The same is being discussed in the paras hereinbelow.
5.2. The Plaintiff has filed the civil suit for mandatory injunction on the basis of unregistered documents. The Defendant was stated to be a licensee in the suit property. It is stated that his license was terminated and he was liable to vacate the suit premises. The Defendant has stated in the written statement that the suit property was ancestral in nature and the Plaintiff alone was not entitled to the same and therefore, the Defendant was not liable to be evicted. It is further stated that the Defendant has filed a suit for partition of the suit property and the present suit was a counter-blast to the aforesaid suit. After appreciating the evidence, the Court of Ld. SCJ has concluded that the Appellant/Defendant has failed to prove that the suit property was ancestral in nature and the Plaintiff has a better right in the suit property, in terms of the unregistered documents and have also sought the prayers on the basis of his previous possession.
5.3. The parties have led evidence in the matter. The Appellant/Defendant has examined 3 witnesses. However if the evidence adduced by the Defendant is seen in totality, the Appellant/Defendant has failed to prove that the suit property was ancestral in nature. The Appellant/Defendant has not produced any document, whereby the nature of the ________________________________________________________________ Om Prakash vs. Ramesh Chander Page No. 13 of 26 ANIL RCA NO. 42/2021 CHANDHEL Digitally signed by ANIL CHANDHEL Date: 2024.06.07 16:11:25 +0530 suit property could be termed to be ancestral. The cross examination of the DW-1 reveals that the Appellant/Defendant did not know as to how the suit property was acquired by his father. He states that the suit property was purchased by his father and the documents of property might be in the name of the mother. In the cross-
examination, the Appellant/Defendant states in same breath that he was studying in class 4th and 5th, when the suit property was purchased, whereas in the same cross- examination he states that he was 18 years old, when the suit property was purchased.
5.4. The Appellant is further not aware as to who has constructed the suit property. Another witness introduced by the Appellant, i.e., DW-2, is the brother of the Appellant and the Respondent. He also does not mention anything more than the fact that the suit property was purchased by the father of the parties. He did not know about the details of the transactions and is not aware of anything material, except the possession of the Appellant in the suit property. Therefore, he also does not establish that the suit property was ancestral in nature. Similarly the DW-3 has also made oral averments, about the property being purchased by the father of the parties, however he has neither seen any documents nor is aware of any material details of the transaction. Therefore the Appellant has not proved his contentions about the suit property being ancestral in nature. It has further been submitted by the Ld. Counsel for the Respondent that the ________________________________________________________________ ANIL Om Prakash vs. Ramesh Chander Page No. 14 of 26 CHANDHEL RCA NO. 42/2021 Digitally signed by ANIL CHANDHEL Date: 2024.06.07 16:11:31 +0530 Appellant has withdrawn the suit for partition, filed by him, which fact has not been disputed, on behalf of the Appellant.
5.5. The Respondent has stated that he is owner of the suit property as he has purchased the same from the erstwhile owner, by virtue of following unregistered documents:
i. Exhibit PW-1/1: The payment receipt dated 05.10.1992.
ii. Exhibit PW-1/2: The GPA dated 05.10.1992.
iii. Exhibit PW-1/3: The affidavit.
iv. Exhibit PW-1/4: The Agreement to Sell dated
05.10.1992.
v. Exhibit PW-1/5: The Will dated 05.10.1992.
The aforesaid documents were tendered in the examination in chief of the PW-1 as Exhibit PW-1 to Exhibit PW-1/5. All of the aforesaid documents are unregistered. In so far as the Will is concerned, the Respondent has not proved the same. It is not clear whether the executant has passed away or not and further if the testator had passed away, the Plaintiff has not examined any attesting witness. Therefore, the Will has not been proved, in terms of Section 68 of the Indian Evidence Act, 1872, as the attesting witness of the aforesaid Will has not been examined.
5.6. In so far as the other unregistered documents are concerned, the same do not confer the ownership upon the Plaintiff. Ld. Trial Court has held that the Respondent may not be owner ________________________________________________________________ ANIL Om Prakash vs. Ramesh Chander Page No. 15 of 26 CHANDHEL RCA NO. 42/2021 Digitally signed by ANIL CHANDHEL Date: 2024.06.07 16:11:37 +0530 in the strict sense of the term, however has a better right and interest in the property than the Appellant, in terms of the aforesaid unregistered documents. The Ld. Trial Court has relied upon the judgment passed by the Hon'ble High Court of Delhi passed in the case of "Karamvir Vs. Mann Singh:
2014:DHC:2551", to conclude that in a suit for possession or injunction, the Plaintiff has to prove the entitlement, which is better than the Defendant. It has been concluded that the Plaintiff, in terms of the aforesaid documents, has shown a better title/right over the property. The aforesaid observations are in para 23 and 24 of the judgment, which are being reproduced hereinbelow:
"23. No doubt, the documents Ex.PW1/1 to Ex.PW1/5 do not prove the ownership/title of the suit property but in the judgment titled as "Karamvir v. Maan Singh", MANU/DE/2364/2014, the Delhi High Court has held that, "The appellants/plaintiffs therefor may not in the strict sense be owners of the property, but in a suit for possession or for injunction, a plaintiff has only to prove an entitlement to the suit property which is better than the respondent/defendant. Once the appellant/plaintiffs prove an entitlement better than the respondents/defendants, it is upon the respondents/defendants to discharge the onus that they have a better entitlement to the suit property than as is pleaded by the appellants/plaintiffs. In this case, the respondents/defendants have not shown any vestige of title for they being entitled to the possession of the suit property and the appellants/plaintiffs have duly shown their entitlement by virtue of registration power of attorney dated 10.08.2019. Accordingly, I hold that the ________________________________________________________________ Om Prakash vs. Ramesh Chander Page No. 16 of 26 RCA NO. 42/2021 ANIL CHANDHEL Digitally signed by ANIL CHANDHEL Date: 2024.06.07 16:11:43 +0530 appellants/plaintiffs had a better title than the respondents/defendants and were therefore entitled to the relief that the respondents/defendants should be injunctive from illegally dispossessing the appellants/plaintiffs from the suit property."
24. The present case is for seeking relief of mandatory injunction. The Plaintiff with the help of documents on record has been able to establish that he has a better title/right over the suit property as compared to the defendant. Now, the onus was on the defendant to show that he had better entitlement to the suit property than the plaintiff but the defendant has failed to do so."
One major difference between the facts, in the aforementioned judgment, relied upon by the Court of Ld. SCJ and present case is that the general power of attorney in that case was registered and the suit property was a vacant plot of land, wherein the title will follow the possession. Whereas all the documents, relied upon in the present case, are unregistered and the suit property is constructed second floor.
5.7. The right of a party to maintain a suit for possession, on the basis of unregistered document, wherein the case of ownership is set up, has been recently disapproved by the Hon'ble Supreme Court of India in, "Shakeel Ahmed Vs. Syed Akhlaq Hussain (01.11.2023): 2023 INSC 1016." In the aforesaid case, the Plaintiff has filed a suit for possession on the basis of unregistered documents. The Hon'ble High Court of Delhi has decreed the suit on the ground that the Defendant has failed to prove his defence ________________________________________________________________ ANIL CHANDHEL Om Prakash vs. Ramesh Chander Page No. 17 of 26 RCA NO. 42/2021 Digitally signed by ANIL CHANDHEL Date: 2024.06.07 16:11:48 +0530 and the Plaintiff had a better title and further the Plaintiff could be construed as attorney of previous owner. The relevant observations of the Hon'ble High Court of Delhi in "Shakeel Ahmed Vs. Syed Akhlaq Hussain:2018:DHC:5311", are being reproduced hereinbelow:
"6. Trial court has disbelieved the case of the appellant/defendant that the suit property was gifted to the appellant/defendant by his brother Laiq Ahmed. I completely agree with the reasoning and conclusions of the trial court because trial court has referred to the fact that the stand of the suit property being gifted to the appellant/defendant was taken up for the first time only in the written statement and no such case was taken up by the appellant/defendant when he gave a Reply dated 24.4.2008 (Ex. PW1/O) to the Legal Notice dated 16.4.2008 (Ex. PW1/N) sent by the respondent/plaintiff. I also agree with the trial court that the issue of Gift Deed could not be believed because in the written statement filed by the appellant/defendant there were no names which were given as to who were the relatives and the other persons present when the alleged oral gift had taken place by Laiq Ahmed to his brother/appellant/defendant. Even in his affidavit by way of evidence filed by the appellant/defendant there was complete silence as regards the persons/their names who were present at the time of the alleged oral gift of the suit property made by Laiq Ahmed to his brother/appellant/defendant. I therefore agree with the conclusion of the trial court that appellant/defendant has failed to prove that the suit property was gifted to him by his brother.
7. Though not argued on behalf of the appellant/defendant one other issue which requires consideration is as to whether respondent/plaintiff can rely upon the unregistered documents dated 20.2.2008 being the ________________________________________________________________ ANIL Om Prakash vs. Ramesh Chander Page No. 18 of 26 CHANDHEL RCA NO. 42/2021 Digitally signed by ANIL CHANDHEL Date: 2024.06.07 16:11:53 +0530 Agreement to Sell (Ex. PW1/F), General Power of Attorney (Ex. PW1/G), Affidavit (Ex. PW1/H), Will (Ex. PW1/I), Receipt (PW1/J) in view of the Act 48 of 2001 becoming effective from 24.1.2001 and by which Act, documents such as agreement to sell cannot be looked into for conveying the title of part performance under Section 53A of the Transfer of Property Act, 1882 of the property unless the same are duly stamped and registered. Trial court in this regard has held that the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana and Anr.: 183 (2011) DLT 1 (SC) being only prospective in nature and therefore will not affect the validity of the subject documents executed in 2008, however in my opinion this reasoning is questionable, but the subject suit for possession still had to be decreed because respondent/plaintiff can definitely be said to be suing as an attorney for and on behalf of the owner Laiq Ahmed, and Laiq Ahmed is not in any manner objecting to the respondent/plaintiff taking possession of the suit property. Respondent/plaintiff therefore clearly is held to have an entitlement to take possession of the suit property, not only on behalf of the Laiq Ahmed but also because he had a better title to possession of the suit property than the appellant/defendant. This additional reasoning I am giving under Order XLI Rule 24 CPC. Trial court therefore, in my opinion, was justified in decreeing the suit for possession and mesne profits."
However, in the appeal, the Hon'ble Supreme Court has disagreed with the afore-mentioned reasoning, as highlighted above. The relevant observations of the Hon'ble Supreme Court are being reproduced hereinbelow:
"10. Having considered the submissions at the outset, it is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries(supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered ________________________________________________________________ ANIL Om Prakash vs. Ramesh Chander Page No. 19 of 26 CHANDHEL RCA NO. 42/2021 Digitally signed by ANIL CHANDHEL Date: 2024.06.07 16:11:59 +0530 Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the Respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to Sections 17 and 49 of the Registration Act and Section 54 of the Transfer of Property Act, 1882.
11. Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Even the judgment of this Court in the case of Suraj Lamps & Industries (supra) lays down the same proposition. Reference may also be made to the following judgments of this Court:
i. Ameer Minhaj v. Deirdre Elizabeth (Wright) Issar and Ors. : 2018:INSC:578.
ii. Balram Singh v. Kelo Devi : 2022:INSC:10111. iii. M/S Paul Rubber Industries Private Limited v.
Amit Chand Mitra: 2023:INSC:8542.
12. The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered documents with respect to immovable property. Once this is the settled position, the Respondent could not have maintained the suit for possession and mesne profits against the Appellant, who was admittedly in possession of the property in question whether as an owner or a licensee.
13. The argument advanced on behalf of the Respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on non-registration ________________________________________________________________ Om Prakash vs. Ramesh Chander Page No. 20 of 26 ANIL RCA NO. 42/2021 CHANDHEL Digitally signed by ANIL CHANDHEL Date: 2024.06.07 16:12:05 +0530 emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view.
14. In case the Respondent wanted to evict the Appellant treating him to be a licensee, he could have maintained a suit on behalf of the true owner or the landlord under specific instructions of Power of Attorney as landlord claiming to have been receiving rent from the Appellant or as Attorney of the true owner to institute the suit on his behalf for eviction and possession. That being not the contents of the plaint, we are unable to agree with the reasoning given by the High Court in the impugned order.
15. For all the reasons recorded above, the impugned judgment deserves to be set aside and the suit deserves to be dismissed. Accordingly, the appeal is allowed. The impugned judgment is set aside and the suit is dismissed."
Therefore, in terms of above-discussed position of law, it can be concluded that on the strength of the unregistered documents alone, the Plaintiff is not entitled to maintain an action for possession, wherein he sets up a title in the plaint. The Respondent/Plaintiff does not state expressly in the plaint or evidence that he has filed the suit as an attorney of the previous owner, with his permission to evict the Appellant/Defendant. Thus the better rights in terms of unregistered documents, in the facts of the present case, would not result in decree against the Appellant.
5.8. Once the Plaintiff fails to establish the ownership, the Plaintiff ________________________________________________________________ Digitally Om Prakash vs. Ramesh Chander Page No. 21 of 26 signed by ANIL RCA NO. 42/2021 ANIL CHANDHEL CHANDHEL Date:
2024.06.07 16:12:11 +0530 could maintain a suit for mandatory injunction, if he could prove his previous possession and the licence by credible evidence. However if the pleadings in the plaint are examined in totality, the Respondent has not expressly stated any period of time/date, in a reference to which the induction of the Appellant in the suit property could be understood. The pleadings and evidence are entirely silent as to when the possession was handed over to the Appellant. The relevant part of the cross-examination of the PW-1 dated 13.03.2018 is reproduced hereinbelow:
"I do not have any document to show that after the purchase of the property in question I carried out any repair over the said property. I do not have any previous chain of original documents as the same were not supplied by the person from whom I purchased the property in the year 1992. It is wrong to suggest that I have fabricated the documents Ex.PW1/1 to Ex.PW1/5 regarding the said property. It is wrong to suggest that there was no person in the name of Hanuman Prasad. It is wrong to suggest the defendants are residing in the suit property since 1978-79. It is true that the defendants were living in one room accommodation along with mother as tenant prior to 1990. I do not know whether the defendant has given addressed of the suit property when they were studying in the school."
The suit property is one room accommodation and in the aforementioned cross-examination, the PW-1 has stated that the Defendant was residing in one room accommodation, prior to the year 1990 as a tenant. Though, the precise connect of the aforesaid statement with the suit property is missing, however, the aforesaid question has been asked in sequence of ________________________________________________________________ ANIL Om Prakash vs. Ramesh Chander Page No. 22 of 26 CHANDHEL RCA NO. 42/2021 Digitally signed by ANIL CHANDHEL Date: 2024.06.07 16:12:17 +0530 the question with regard to the possession of the Defendant in the suit property. Moreover, from the aforesaid testimony, it appears that the Appellant was in possession of the suit property, since inception of the execution of the Exhibit PW- 1/1 to Exhibit PW-1/5.
5.9. It emerges from the cross examination of the PW-1 that the PW-1 is not aware of the property dealer, through whom he has purchased the suit property. The PW-1 does not have any document to show that the suit property was constructed/repaired by him subsequent to the execution of Exhibit PW-1/1 to Exhibit PW-1/5. Further the PW-1/Respondent did not have chain of the previous documents. The Respondent states in the cross-examination that the same has not been given to him by the previous owner. The Respondent has further stated in his cross- examination dated 23.02.2018, that he has signed his affidavit of evidence without understanding the contents of the same, as the Counsel told that the Affidavit was to be filed in the Court. If a witness is not aware of the contents of his affidavit of evidence, i.e., examination in chief, then it can not be said that the Plaintiff has proved the contentions raised in the plaint. The aforesaid statement adds an incurable dent in the Plaintiff's evidence and further weakens the credibility of story of license and prior possession. Even the termination of license is shrouded in mystery. The Respondent has relied upon two legal notice, dated 03.11.2014 Exhibit PW1/7 and dated 21.11.2014, Exhibit PW1/9. The Respondent has filed ________________________________________________________________ ANIL Om Prakash vs. Ramesh Chander Page No. 23 of 26 CHANDHEL RCA NO. 42/2021 Digitally signed by ANIL CHANDHEL Date: 2024.06.07 16:12:26 +0530 the courier receipt of the aforementioned notices, however no proof of delivery of the same has either been filed or proved.
5.10. The Respondent could maintain a suit for mandatory injunction, instead filing a suit possession, however in the suit for mandatory injunction it has to be seen that there is no delay in initiating action after termination of the license. However, the creation as well as the termination of the license is shrouded in the cloud of doubt. The Respondent has stated that the electricity and water connection of the suit property are in his name, however there is no document on record to substantiate the same. Further the respondent has summoned the record of the property tax and the aforesaid receipts show that the aforesaid record pertains to year 2014 to 2018. The respondent is an occupant of the ground floor of the property, wherein the suit property is situated at the second floor. The aforesaid tax receipt pertains to the whole of the property and the same would not be indicate the possession of the Respondent, that too, when the payment is stated to be made in the year 2014- 2018.
6. Therefore, the above-mentioned discussion can be summed up in following conclusions:
i. The respondent/Plaintiff has set up the case of ownership in the plaint and has failed to prove the ownership.
ii. The documents relied upon by the Respondent/Plaintiff are unregistered and therefore, in view of Shakeel Ahmad ________________________________________________________________ ANIL Om Prakash vs. Ramesh Chander Page No. 24 of 26 CHANDHEL RCA NO. 42/2021 Digitally signed by ANIL CHANDHEL Date: 2024.06.07 16:12:33 +0530 (supra) can not be made basis for an action for obtaining possession, by setting up the plea of ownership. The Plaintiff has not stated that he was suing as attorney of the previous owner.
iii. The Plaintiff/respondent has failed to establish his prior possession. No date of license, induction of the Appellant into possession has been mentioned. It is not clear, whether the Appellant is possession after or prior to the execution of the aforementioned documents. The property tax receipts are of the year 2014 to 2018 and do not prove the possession of the Plaintiff. The Plaintiff has not filed or proved the records of water or electricity connection to show his possession.
iv. The termination of license is also shrouded in doubt as no proof of delivery has been filed or proved. The Respondent has stated that the previous owner has not given him the title chain of documents, which contentions appears to be doubtful unless explained. The Plaintiff/Respondent is not even aware of the name of the property dealer, through whom he has purchased the suit property. The Plaintiff has no documents to show that he has raised a construction after the execution of Exhibit PW-1/1 to Exhibit PW-1/5.
v. The PW-1 states in the cross-examination that he has signed the affidavit of evidence, without understanding its contents. The aforesaid statement is fatal to the case of ________________________________________________________________ ANIL Om Prakash vs. Ramesh Chander Page No. 25 of 26 CHANDHEL RCA NO. 42/2021 Digitally signed by ANIL CHANDHEL Date: 2024.06.07 16:12:38 +0530 the Plaintiff and contentions of the previous possession and license become extremely doubtful.
Therefore, this Court is respectful disagreement with the findings of the Court of Ld. SCJ that the Respondent has made out a case on the basis of his prior possession. Once the premise of a better right falls, the Respondent has to establish the prior possession with reference to exact time, as well the induction of the Appellant in the property as a licencee with better particulars. The aforesaid ingredients are missing in the present case. Thus the Respondent/Plaintiff is not entitled to a decree of mandatory injunction.
7. Order:
Accordingly, in terms of the discussion/reasons stated hereinabove, the present appeal is allowed and the impugned judgment and decree, dated 09.03.2021, passed by the Court of Ld. SCJ-cum-RC, West, Tis Hazari Courts, Delhi in CS SCJ No.608314/2016, is hereby set aside. The suit of the Respondent/Plaintiff is dismissed. The Decree sheet be drawn accordingly.Digitally signed by ANIL CHANDHEL
ANIL CHANDHEL Date:
2024.06.07 16:12:46 +0530 Announced in the open Court (ANIL CHANDHEL) today on 7th of June, 2024 DISTRICT JUDGE-04 WEST DISTRICT THC/DELHI/07.06.2024 ________________________________________________________________ Om Prakash vs. Ramesh Chander Page No. 26 of 26 RCA NO. 42/2021