Delhi District Court
An Il Kumar Jain vs Lata on 31 August, 2024
IN THE COURT OF VIKAS GARG, DJ-05 (EAST),
KARKARDOOMA COURTS, DELHI.
Suit No. 1210/16
CNR No. DLET01-000851-2011
Anil Kumar Jain
S/o Sh. Suresh Chand Jain
R/o 52, First Floor,
AGCR Enclave, Delhi-110092
...........Plaintiff
Versus
1. Lata (Since deceased) & Ors.
Through LRs.
a. Sh. Dwarka Prashad Kashyal (Husband)
R/o 312, 4th Fourth Floor, AGCR Enclave
Delhi-110092.
b. Ms. Sarika Verma (Daughter)
D/o Sh. Dwarka Prashad Kashyal
R/o 312, 4th Fourth Floor, AGCR Enclave
Delhi-110092.
c. Ms. Arti (Daughter)
D/o Dwarka Parshad Kashyal
R/o G/69, Kawar Singh Nagar
Nangloi, Delhi-41.
d. Ms. Pooja Kashyal (Daughter)
D/o Dwarka Parshad Kashyal
R/o D 118, Gali No. 11, Jagjit Nagar
Delhi-53.
e. Sh. Prinic Kashyal (son)
S/o Sh. Dwarka Parshad Kashyal
R/o 312, 4th Fourth Floor, AGCR Enclave
VIKAS Digitally signed
by VIKAS GARG
GARG Date: 2024.08.31
16:39:32 +0530
CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 1 of 33
Delhi-110092.
f. Smt. Ginni Verma
Khasra No. 136/12/2 H. No. 10
Near Rani Public School
Sant Nagar Burari
Delhi-84.
2. The Sub-Registrar-VIII
District-East, L. M. Bandh
Shashtri Nagar, Delhi-31.
...........Defendants
Date of Institution : 30.05.2011
Date of final arguments : 14.08.2024
Date of decision : 31.08.2024
Final decision : Suit Dismissed
SUIT FOR CANCELLATION OF SALE DEED AND
PERMANENT INJUNCTION
JUDGMENT
1. By this judgment, the plaintiff's suit for cancellation of sale deed and permanent injunction shall be adjudicated.
2. At the outset of the suit, defendants No. 2 to 5 were included as legal heirs of the late Sh. J.P. Gupta, the original owner of the suit property. However, before service of the suit could be effected, they were removed from the array of parties by the order dated March 4, 2014, pursuant to the plaintiff's application under Order 1 Rule 10 of the CPC.
CASE OF THE PLAINTIFF AS PER PLAINT :-
Briefly, the essential facts required for a fair adjudication VIKAS Digitally signed by VIKAS GARG GARG Date: 2024.08.31 16:39:45 +0530 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 2 of 33 of the present suit, as presented in the plaint, are as follows:
3. The plaintiff, Sh. Anil Kumar Jain, purchased the First Floor and Mezzanine Floor of property No. 52, AGCR Enclave, Delhi-110092 from Late Sh. J.P. Gupta (father of defendants 2-5) via an agreement to sell dated 07.12.1994/30.01.1995, coupled with General Power of Attorney, WILL, Affidavits, and other ancillary documents. The plaintiff was given possession at the time of purchase and has since been in actual use, enjoyment, and possession of the property, including the Mezzanine Floor (hereafter referred to as the Suit Property). Late Sh. J.P. Gupta received Rs. 9,25,000/- as consideration, with Rs. 50,000/- left to be paid at the time of Sale Deed execution.
Due to Sh. J.P. Gupta's dishonesty and avoidance of Sale Deed execution, the plaintiff filed Suit No. 2527 of 1998 in the Delhi High Court for specific performance and declaration. An interim order dated 20.11.1998 (made absolute on 22.11.2005) restrained Sh. J.P. Gupta from transferring the property. This suit is still pending and at the evidence stage. To prevent circumvention of this order, the plaintiff filed Suit No. 382 of 2009 against the Sub-registrar (defendant No. 6) to prevent property registration, which was disposed of on 25.07.2009 based on the Sub-registrar's assurance.
Despite these actions, the plaintiff received a letter dated 23.11.2009 from the Sub-Registrar about a Sale Deed presented on 16.09.2009 by Sh. J.P. Gupta in favor of Smt. Lata (defendant No. 1). Despite the plaintiff's representation, a Sale Deed VIKAS Digitally signed by VIKAS GARG GARG Date: 2024.08.31 16:39:57 +0530 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 3 of 33 (registration No. 15087, Addl. Book No. I, Volume No. 4311, Page No. 14-21) was registered on 04.12.2009. The plaintiff initiated contempt proceedings against the Sub-Registrar, which are pending before ADJ Pawan Kumar Matoo, Karkardooma Court, Delhi.
Sh. J.P. Gupta passed away on 20.03.2011. Subsequently, defendant No. 1 and her husband attempted to forcibly enter the property on 26.03.2011. The plaintiff called the police and filed a complaint under Section 200 read with Section 156(3) of Cr.P.C, pending before ACMM Vrinda Kumari, Karkardooma Court, Delhi. Defendant No. 1 filed a suit for permanent injunction against the plaintiff (pending before ACJ Sanjay Khanagwal, Karkardooma Court), with her application under Order 39 Rule 1 & 2 CPC dismissed on 04.05.2011.
The plaintiff further stated that the 04.12.2009 Sale Deed is inoperative, null, and void due to the pending suit, restraining order, and violation of Section 52 of the Transfer of Property Act (Lis Pendens).
The plaintiff prays for: (A) A decree declaring/cancelling the 04.12.2009 Sale Deed as inoperative, null, and void for the Suit Property. (B) A permanent injunction restraining defendant No. 1 from interfering with the plaintiff's possession or creating third- party interests. (C) Costs of the suit. (D) Any other relief deemed appropriate by the court.
CASE OF THE DEFENDANT NO. 1 AS PER WRITTEN STATEMENT:-
VIKAS Digitally signed
by VIKAS GARG
Date: 2024.08.31
GARG 16:40:06 +0530
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Briefly, the essential facts required for a fair adjudication of the present suit, as presented in the Written Statement, are as follows:
4. The defendant No.1 denies all allegations in the plaint, except those specifically admitted. The defendant raises preliminary objections, arguing that the suit is frivolous, vexatious, and an abuse of process. The plaintiff is accused of approaching the court with unclean hands, suppressing facts, and not complying with Section 80 of CPC. The suit is claimed to be undervalued and lacking sufficient court fees. On merits, the defendant denies that the plaintiff purchased the property or received possession from Late Sh. J.P. Gupta. The defendant states that Gupta cancelled all documents and filed a suit against the plaintiff in the Delhi High Court. The defendant denies any malafide intentions or collusion in the sale transaction. The sale deed dated 16.09.2009, registered on 04.12.2009, is defended as valid. The defendant claims to have purchased the terrace of the first floor with construction rights up to the last storey, along with other specified areas in the property No. 52, AGCR Enclave, Delhi-110092.
The defendant denies all claims of the plaintiff's possession, attempts to break locks, or creation of mischief. The defendant refutes the plaintiff's assertions of irreparable loss, balance of convenience, and prima facie case. The cause of action is denied, including the plaintiff's claims related to learning about the sale deed on 07.12.2009, contempt proceedings, and the suit filed by defendant No.1. The defendant maintains that no cause of action has arisen in favor of the plaintiff. The jurisdiction of the court is VIKAS Digitally signed by VIKAS GARG Date: 2024.08.31 GARG 16:40:18 +0530 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 5 of 33 acknowledged as a matter of record, but the proper valuation of the suit is denied. The defendant prays for dismissal of the suit with heavy costs and any other orders the court deems fit.
Replication:-
5. Plaintiff has filed replication to the written statement of the defendant wherein he has denied the submissions of the defendant as contained in the written statements and has reaffirmed and reiterated the contents of the plaint.
6. In the present case, both defendants initially proceeded ex parte on 21.07.2014 beforing framing of Issues. However, the legal representatives (LRs) of defendant no. 1 appeared in response to the plaintiff's application under Order 22 Rule 4 of the CPC. After being substituted as parties in the case, the LRs of defendant no. 1 did not file any application to set aside the ex parte order but instead joined the proceedings at the stage of final arguments. Despite choosing not to present any evidence, they vigorously opposed the suit during the final arguments. The reference in this judgment to the defendant no.1 would imply a reference to the original defendant no.1 or his legal heirs as per the context.
7. The plaintiff, in support of his case, appeared as PW-1 and presented his evidence through an affidavit, labeled as Ex. PW1/1, during his examination-in-chief, in which he reiterated the statements made in the plaint. He also relied the following documents: Digitally signed VIKAS by VIKAS GARG Date:
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1. Certified copy of the title documents i.e. agreement to sell, Special power of attorney, WILL, two Affidavits, possession letter, surrender deed, indemnity bond, receipt, executed by Sh. J.P.Gupta in his favour are collectively as PW 1/X
2. Certified copy of the suit filed by him before Honourable High Court of Delhi titled as Anil Kumar Jain & Anr. v. J.P.Gupta alongwith orders passed by the said court are collectively as Ex.PW1/B.
3. Photocopy of the order passed by the court of Sh. Gulshan Kumar, the then Ld. ADJ, KKD Courts on dated 25.07.2009 as mark A.
4. Photocopy of the statement dated 06.04.2009 filed by Sub Registrar-VIII, District East as mark B, photocopy of letter dated 23.11.2009 issued to him by Sub Registrar-VIII as mark C.
5. Photocopy of the representation dated 05.12.2008 made by him to Sub Registrar-VIII, District East as mark D. Sh. Brijpal Singh was examined as PW-2 and deposed that he brought the original summoned record, specifically the WILL dated 30.01.1995 executed by Shri J.P. Gupta in favor of Shri Anil Kumar Jain and Smt. Usha Rani Jain, which was registered under registration no. 3946, volume no. 1144, Book no. 3, at pages 115-116 dated 30.01.1995. A photocopy of the same was marked as Ex.PW2/1 (OSR).
Sh. Ajay Pratap Singh was examined as PW-3, and he deposed that he brought the certified copy of the letter dated 23.11.2009, which was addressed to the plaintiff by the Sub Registrar VIII and initially marked as Mark C. This certified copy were then exhibited as Ex.PW3/1.
Digitally signedVIKAS byDate:VIKAS GARG GARG 2024.08.31 16:40:36 +0530 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 7 of 33 Sh. Uma Shankar Choudhary was examined as PW-4 and testified as a summoned witness. He brought the summoned record pertaining to the case titled Anil Kumar Jain vs. Govt. of NCT of Delhi, decided by the court of Sh. Gulshan Kumar, ADJ, East, Karkardooma Courts on 25.07.2009. The photocopies of the statements made by defendant no. 6 in the present suit, dated 06.04.2009, which were earlier marked as Mark B, were then exhibited as Ex.PW4/A. Additionally, the order passed by Sh. Gulshan Kumar, ADJ, Karkardooma, East District, Delhi, in the same case, dated 25.07.2009, previously marked as Mark A, were then exhibited as Ex.PW4/B. Arguments:-
8. I have heard Ld counsels of both the parties and have carefully gone through the record and considered the relevant provisions of law. Learned counsel for the plaintiff argued in line with the plaint, relying on various documents tendered during evidence. The case was primarily based on the doctrine of part performance under Section 53A of the Transfer of Property Act and the doctrine of lis pendens as per Section 52 of the same Act.
The counsel also emphasized restraint orders passed by the Hon'ble High Court under Order 39, Rule 1 and 2, and referenced the order of Shri Gulshan Kumar's court dated 25.07.2009. Allegations of fraud were leveled against the defendants, and mention was made of J.P. Gupta's case against defendant no. 1 seeking to declare the sale deed null and void. The counsel cited the Suraj Lamp judgment, along with Supreme Court rulings in State of Andhra Pradesh v. T Surya Chandra Rao 2005 (6) SCC 149 and Bilkis Yakoob Rasil v. Union of India VIKAS Digitally signed by VIKAS GARG GARG Date: 2024.08.31 16:40:53 +0530 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 8 of 33 2024 (5) SCC 481.
Conversely, learned counsel for defendant no. 1 refuted the plaintiff's claims, arguing that Section 52 and Section 53A of the Transfer of Property Act do not apply in this case. She contended that the plaintiff lacks locus standi to file the present case. The defence relied on case laws including Surhid Singh @ Sardool Singh Vs. Randhir Singh & Ors; 2010 (12) SCC 112, Shakeel Ahmed Vs. Sayed Akhlaq Hussain (Civil Appeal No. 1598/2023) and Sharad Bhansali and Anr. Vs. Mukesh Aggarwal and Anr. (ARB.A. 2/2023).
In response, the plaintiff's counsel argued that the case laws cited by the defendant's counsel are not applicable given the specific facts and circumstances of the present case.
Analysis and findings:-
9. The plaintiff has provided the foundation for the reliefs sought in this case in paragraphs 17 and 19 of the plaint. These crucial paragraphs are reproduced verbatim as follows:
"17. That since the suit for specific performance with regard to First Floor and Mezzanine Floor is pending disposal before the Hon'ble High Court of Delhi, Late Sh.J.P.Gupta could not have executed the sale Deed, because of the provision of Section 52 of the Transfer of Property Act which would be immediately attracted, i.e. the principle of Lis Pendens, more so when restrained order has already been passed, restraining Sh.J.P.Gupta from Selling, alienating or transferring the suit property during the pendency of the suit, not only that the Sub-registrar-VIII (defendant No.6 herein) who allegedly registered the Sale Deed, inspite of VIKAS Digitally signed by VIKAS GARG Date: 2024.08.31 CS no. 1210/2016 GARG Anil Kumar Jain Vs. Lata 16:41:05 +0530 Page no. 9 of 33 making the statement before the court that the Sale Deed would not be registered, on the basis of which the suit filed by plaintiff herein against the Sub-registrar (defendant No.6) was disposed off. That the plaintiff came to know of the alleged sale deed dated 04.12.2009 and thereafter initiated contempt proceedings against the sub-registrar (defendant No.6 herein) which is still pending disposal.
18. That the alleged Sale Deed registered by the defendant No.6, Sub-registrar on 04.12.2009 is inoperative, null and void.
19. That since the plaintiff herein had already purchased the suit property and first floor of property bearing No. 52, AGCR Enclave, Delhi- 110092 by virtue of documents mentioned above, thus even as per the latest law laid down by the Hon'ble High Court of Delhi and the Supreme Court of India says that the property purchased through Agreement to Sell, General Power of Attorney, WILL, coupled with possession and consideration amounts to sale and create an interest and title in the property, since most of the properties in Delhi are being sold through Agreement to Sell, G.P.A., WILL, receipts, possession letter etc. But as a abundant precaution as stated above, Suit for Specific Performance is still pending before the Hon'ble High Court of Delhi, but since the defendant No.6 inspite of the statement given to the court have registered a sale deed qua the suit property which is inoperative, null and void. Thus, the alleged Sale Deed deserved to be cancelled forthwith. Hence, the present suit"
Upon examining the aforementioned paragraphs of the plaint, it is evident that the plaintiff has based his suit on the doctrine of lis pendens under Section 52 of the Transfer of VIKAS Digitally signed by VIKAS GARG Date: 2024.08.31 GARG 16:41:16 +0530 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 10 of 33 Property Act. He seeks to enforce restraining orders dated 20.11.1998 and 22.11.2005 in Suit No. 2527 of 1998, as well as the order dated 25.07.2009 in Suit No. 382/09. Additionally, to safeguard his possession of the suit property, the plaintiff has invoked the doctrine of part performance under Section 53A of the Transfer of Property Act.
The plaintiff has also sought relief in the present suit by asserting ownership of the suit property through documents such as the Agreement to Sell, General Power of Attorney, and WILL. Additionally, the plaintiff contends that receiving possession of the property and maintaining continuous possession form crucial grounds for the relief he seeks in this case.
It is an undisputed fact that Suit No. 2527 of 1998, filed by the plaintiff, Sh. Anil Kumar Jain, against Sh. J.P. Gupta for specific performance, is still pending, as confirmed by the plaintiff's counsel. In that case, the following order was passed on 20.11.1998:
"Present: Mr. Anil Kumar for the plaintiff.Suit No.2527/98
Plaint be registered as suit. Issue summons in the suit to the defendant both by ordinary process as well as by to registered post, returnable on 27th January, 1999.I.A.No.10419/98
The contention of the plaintiff is that under an agreement to sell dated 11th December, 1994 the defendant had agreed an to sell the first floor of the property bearing No. 52. A.G.C.R.Enclave. Delhi for a total sale consideration of Rs.9.75 lacs. A sum of Rs.2 lacs is stated to have been paid on 7th December, 1994 and the entire balance consideration is also stated to have been paid on 30th January, 1995 about which an endorsement VIKAS Digitally signed by VIKAS GARG GARG Date: 2024.08.31 16:41:24 +0530 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 11 of 33 has been made by the defendant on the agreement sell itself. The property is stated to have been converted into a free-hold property and in spite of repeated demands of the plaintiff, the defendant has not executed the sale deed in respect of the first floor with super structure on it and mezzanine floor of the aforesaid property. Possession of the first floor is stated to be with the plaintiff. The defendant is threatening to create third party rights in the suit property by disposing it of to some other person.
Notice of this application be issued to the defendant for the date fixed. In the meantime, the defendant is restrained from selling, alienating, transferring or creating third party rights in the first and mezzanine floor of the property bearing No.52, A.G.C.R. Enclave, Delhi-110 092.
Compliance of Order 39 Rule 3 be made within three days.
DASTI.
November 20, 1998 "Ravindra"
(S.K.Mahajan) Judge"
The order was made absolute through the order dated 22.11.2005, which stated the following:
" % 22.11.2005 Present: Mr. Anil Gupta, Advocate for the Plaintiff Mr. F. Hasan, Advocate for the Defendant.+IA No. 7456/2004
* This is an application seeking consolidation of Suit being CS (OS) No. 139/2005 titled Shri I.P. Gupta Vs. Anil Kumar Jain & Others pending in the Court of Shri O.P. Gupta, ADJ, with the present suit. Learned counsel for the plaintiff does not oppose the application.
The application is allowed and the said suit VIKAS Digitally signed by VIKAS GARG GARG Date: 2024.08.31 16:41:32 +0530 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 12 of 33 be transferred, to be tried along with the present case.+ CS (OS) No. 2527/1998
* List for framing of issues on 17th March, 2006 when the other suit called for from the District Court would be listed.
It may be noticed that on 30.07.2002, it was stated that the original documents have been filed in the said suit.+ IA No. 10419/1998
* It is agreed that the interim order dated 20.11.1998 be made absolute during the pendency of the suit. Ordered accordingly.
Application stands disposed of.
November 22,2005 Sanjay Kishan Kaul J. mb"
On 25.07.2009 in the suit no. 382/09, the following order was passed:
"Suit No 382/0925.07.200 Present : Counsel for plaintiff.
Sh. Om Prakash on behalf of defendant.
Counsel for defendant has filed his reply. He has stated that the request of the plaintiff has been taken on record in respect of Suit property bearing no. 52, AGCR Enclave, Delhi-92.
The prayer of the plaintiff has been accepted by the defendant. Nothing remains in the suit.
In view of circumstances the suit is disposed of accordingly.
File be consigned to record room.
Digitally signed VIKAS by VIKAS GARG
Date:
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CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 13 of 33
Announced in the Open Court
On 25 July, 2009
(Gulshan Kumar)
ADJ(East)/KKD
Delhi/25.07.09"
Claim of ownership on basis of GPA and Agreement to Sell etc:
I find no merit in the plaintiff's contention that he is entitled to the reliefs in the present case based on his ownership through documents such as the General Power of Attorney (GPA), and Agreement to Sell, Possession Letter, Receipt of payment etc. It is a settled legal principle that these documents do not confer any title. Moreover, the argument of the learned counsel for the plaintiff that the present case was filed before the pronouncement of judgment or falls under the exceptions in the Suraj Lamp Case [Suraj Lamps and Industries Pvt. Ltd. v. State of Haryana and Anr, Special Leave Petition (C) No. 13917 of 2009] holds no ground. On the contrary, the reliance of the learned counsel for the defendant on the judgment of the Apex Court in the case titled Shakeel Ahmad vs. Syed Akhlaq Hussain, Civil Appeal No. 1598 of 2023, dated 1st November 2023, is relevant. In Shakeel Ahmad vs. Syed Akhlaq Hussain (supra), the Hon'ble Apex Court observed:
"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 Agreement to Sell or on the basis of an unregistered General Power of Attorney. The VIKAS Digitally signed by VIKAS GARG GARG Date: 2024.08.31 16:41:58 +0530 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 14 of 33 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."
Moreover, the plaintiff himself has filed a suit for specific performance regarding the suit property, which is still pending. If the plaintiff truly were the owner of the suit property, it raises the question of why he would need to file a suit for specific performance of the contract concerning the same property.
Claim of ownership on basis of WILL:
Regarding the WILL, it is important to note that no original WILL has been filed in this case, nor has it been proven in accordance with the law, as no attesting witness has been examined. Furthermore, the suit property had already been sold by J.P. Gupta before his death.
In light of the above, no relief can be granted to the plaintiff based on the aforementioned documents.
Claim on basis of Lis pendens U/s 52 Transfer of Property Act:-
As far as application of doctrine of lis pendens U/s 52 Transfer of Property Act is concerned, it is settled law that the VIKAS Digitally signed by VIKAS GARG GARG Date: 2024.08.31 16:42:08 +0530 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 15 of 33 doctrine of lis pendens does not annul the conveyance by a party to the suit, but only renders it subservient to the rights of the other parties to the litigation. It is relevant to refer observations of the Hon'ble Apex Court in case titled as Vinod Seth Vs. Devinder Bajaj (2010) 8 SCC 1 and same are as follows:
" Having found that the direction of the High Court is unsustainable, let us next examine whether we can give any relief to defendants within the four corners of law. The reason for the High Court directing the plaintiff to furnish an undertaking to pay damages in the event of failure in the suit, is that Section 52 of the Transfer of Property Act would apply to the suit property and the pendency of the suit interfered with the defendant's right to enjoy or deal with the property. Section 52 of TP Act provides that during the pendency in any court of any suit in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the court and on such terms as it may impose. The said section incorporates the well- known principle of lis pendens which was enunciated in Bellamy v. Sabine [1857 (1) De G & J 566] :
"It is, as I think, a doctrine common to the Courts both of Law and Equity, and rests, as I apprehend, upon this foundation - that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, VIKAS Digitally signed by VIKAS GARG GARG Date: 2024.08.31 16:42:17 +0530 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 16 of 33 subject again to be defeated by the same course of proceeding."
It is well-settled that the doctrine of lis pendens does not annul the conveyance by a party to the suit, but only renders it subservient to the rights of the other parties to the litigation. Section 52 will not therefore render a transaction relating to the suit property during the pendency of the suit void but render the transfer inoperative insofar as the other parties to the suit. Transfer of any right, title or interest in the suit property or the consequential acquisition of any right, title or interest, during the pendency of the suit will be subject to the decision in the suit."
Hon'ble Apex Court in the case title A Nawab John Vs. V. N. Subramaniyam (2012) 7 SCC 738 observed:
16. This Court in Jayaram Mudaliar v. Ayyaswami and Others, (1972) 2 SCC 200 (paras 42 to 44) quoted with approval a passage from the Commentaries on the Laws of Scotland, by Bell, which explains the doctrine of lis pendens:
"43. .............. Bell, in his commentaries on the Laws of Scotland, said that it was grounded on the maxim :
"Pendent elite nibil innovandum". He observed:
"It is a general rule which seems to have been recognised in all regular systems of jurisprudence, that during the pendence of an action, of which the object is to vest the property or obtain the possession of real estate, a purchaser shall be held to take that estate as it stands in the person of the seller, and to be bound by the claims which shall ultimately be pronounced." Section 52* of the Transfer of Property Act, (for short 'the T.P.Act') incorporates doctrine of lis pendens and it stipulates that during the VIKAS Digitally signed by VIKAS GARG GARG Date: 2024.08.31 16:42:28 +0530 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 17 of 33 pendency of any suit or proceeding in which any right to immovable property is, directly or specifically, in question, the property, which is the subject matter of such suit or proceeding cannot be "transferred or otherwise dealt with", so as to affect the rights of any other party to such a suit or proceeding. The Section is based on the principle:"
"...........that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject to be defeated by the some course of proceeding." Belkamy v.
Subina (1857) De. GEJ 566 at 588."
Quoted with approval by this Court in Vinod Seth v. Devinder Bajaj (2010)8 SCC 1.
"17. It is settled legal position that the effect of Section 52 is not to render transfers affected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the Court.
"The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The section only postulates a condition that the alienation will in no VIKAS Digitally signed by VIKAS GARG Date: 2024.08.31 GARG 16:42:39 +0530 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 18 of 33 manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court." [Sanjay Verma v. Manik Roy, AIR 2007 SC 1332, para 12]"
The plaintiff's suit for specific performance is still pending, and seeking relief based on the doctrine of lis pendens at this stage is premature. Any rights of the plaintiff or even the defendant in this case will be determined by the outcome of the decision in Suit No. 2527 of 1998. Therefore, at this stage, no relief can be granted in the present suit under the doctrine of lis pendens as per Section 52 of the Transfer of Property Act.
Claim on basis of Order dated 20.11.1998 and 22.11.2005:-
Regarding the restraining orders dated 20.11.1998 and 22.11.2005, it is established law that a sale deed for immovable property executed in violation or contempt of an interim order of injunction is not considered non-existent or void. The Hon'ble Delhi High Court, in the case titled A. K. Chatterjee vs. Ashok Kumar Chatterjee, IA No. 12212/2007, dated 11.12.2008, observed:
"7. Thus it follows that a sale deed of immovable property executed in violation/contempt of interim order of injunction is not nonest or void, as contended by the plaintiffs in the present case. It also cannot be said that no right in immovable property subject matter of suit has passed to the applicants, under such a sale deed. In a given case, where sale deed is executed in violation of interim order, the court may direct status quo ante by ordering reconveyance to be executed by the erring parties VIKAS Digitally signed by VIKAS GARG GARG 16:42:51 +0530 Date: 2024.08.31 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 19 of 33 or asking the erring parties to join in execution of conveyance in favour of party ultimately found entitled to the same. The Apex Court in Gurunath Manohar Pavaskar v Nagesh Siddappa Navalgund AIR 2008 SC 901 has held that the courts can pass an interlocutory order in the nature of mandatory injunction in exercise of its jurisdiction under Section 151 CPC on the premise that a party against whom an order of injunction was passed acted in breach thereof and so as to relegate the parties to the same position as if the order of injunction has not been violated. This again implies that the conveyance in violation of interlocutory order is not void, inasmuch as if it was so, there would be no need for reconveyance."
In light of the above, no relief can be granted to the plaintiff for the alleged breach of the court orders dated 20.11.1998 and 22.11.2005 in the present case. Any rights the plaintiff may have are subject to the outcome of the decision in Suit No. 2527 of 1998. Furthermore, the plaintiff may pursue appropriate steps before the Trial Court where Suit No. 2527 of 1998 is pending, as noted in the observations of the Hon'ble Delhi High Court in the A. K. Chatterjee case mentioned above. Therefore, no relief can be provided to the plaintiff in the present case based on the aforementioned orders.
Claim on basis of Order dated 25.07.2009:-
Regarding the court order dated 25.07.2009 in Case No. 382/09, it is noted that the defendant, Sub Registrar (in that case), stated that the plaintiff's request concerning Suit No. 52, AGCR Enclave, Delhi-92, had been taken on record. The order further mentions that the defendant accepted the plaintiff's prayer.
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Consequently, the court observed that nothing remained in the suit, and it was disposed of accordingly.
No executable order was passed by the court in Case No. 382/09. Therefore, the order in that case cannot serve as a basis for granting any relief in the present case.
Claim on basis of Section 53A of the Transfer of Property Act:-
Section 53A of the Transfer of Property Act addresses the Doctrine of Part Performance. The plaintiff has sought a permanent injunction to restrain Defendant No. 1 from disturbing the plaintiff's possession of the suit property. In the case titled Raghbir Singh Chhabra vs. Holy Star Natural Resources Ltd. & Ors., 303 (2023) DLT 748, dated 29.03.2023, the Hon'ble Delhi High Court observed:
"48. Counsel for the defendants submits that in view of the fact that the agreements to sell dated 11th July, 2011 and 20th February, 2013 are not registered, the possession of the plaintiff cannot be protected under Section 53-A of the Transfer of Property Act.
49. The defence under Section 53-A of the Transfer of Property Act is only available to a party, when in part performance of an agreement to sell, that party has taken possession of the property that is subject matter of the agreement to sell. In terms of Section 53A of the Transfer of Property Act, when a transferee has been put in possession in part performance of the contract and the transferee is willing to perform his part of the contract, even if a sale deed has not been executed, the transferee cannot be dispossessed.
50. In the present case, Section 53-A of the Transfer of Property Act can be used to protect the VIKAS Digitally signed by VIKAS GARG GARG Date: 2024.08.31 16:43:11 +0530 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 21 of 33 possession of the plaintiff if it is ultimately held that the plaintiff is not entitled to relief of specific performance. It has no application when the suit for specific performance is pending. A suit for specific performance can be initiated on the basis of an oral agreement to sell as well and therefore, there cannot be any bar on a suit for specific performance being initiated on the basis of an unregistered agreement to sell. In terms of the proviso to Section 49 of the Registration Act, 1908 in a suit for specific performance, an unregistered document affecting an immovable property, which is required by the Transfer of Property Act to be registered, may be received as evidence of a contract. In Mac Associates (supra) relied upon by the defendants, the plaintiff therein had filed a suit for possession on the basis of an unregistered agreement to sell and it was not a case where a suit for specific performance was filed.
51. Further, protection under Section 53-A can be considered in a claim against a party seeking possession of the subject property. In the present case, the defendants have not filed any claim or suit for possession against the plaintiff. In Uma Hada (supra), relied upon by the defendants, it was the defendant who was seeking the benefit of Section 53-A of the Transfer of Property Act in a suit for possession filed by the plaintiff, which was rejected by this Court. Therefore, the aforesaid judgment does not advance the case of the defendants.
52. In Arvindra Kumar Singh (supra), relied upon by the plaintiff, the plaintiff therein on the basis of an unregistered agreement to sell, had filed a suit for permanent injunction restraining the defendants from dispossessing the plaintiff from the suit properties. A Co-ordinate Bench of this Court held that even if an agreement to sell is unregistered, the defendants have to take recourse to the procedure established by law to regain possession.
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53. A perusal of the interim order passed on 26th June, 2014, of which defendants seek vacation, would show that the limited protection granted to the plaintiff is that the plaintiff shall not be forcibly dispossessed from the suit properties without adopting the process of law. Therefore, there is no bar on the defendants to initiate appropriate legal proceedings for claiming possession of the suit properties. By way of the present applications the defendants are trying to obtain possession of the suit properties, which is impermissible in law."
It is clear from the ratio of the case that Section 53A of the Transfer of Property Act is inapplicable when a suit for specific performance is pending.
The argument of the learned counsel for the defendant that Section 53A of the Transfer of Property Act can be used as a shield and not as a sword has merit. The Hon'ble Punjab and Haryana High Court, in the case of Rohtash Singh vs. Sanwal Ram etc. (RSA-2473 of 1994, decided on 22.03.2018), observed:
"22. Hon'ble Apex Court while considering scope of Section 53-A of T.P. Act, in case of Delhi Motor Company Vs. U.A. Basrurkar (dead) by his LRs and others AIR 1968 Supreme Court 794, has observed as follows:-
"In our opinion, this argument proceeds on an incorrect interpretation of Sec. 53-A, because that section is only meant to bring about a bar against enforcement of rights by a lessor in respect of property of which the lessee had already taken possession; but not give any right to the lessee to claim possession or to claim any other rights on the basis of an unregistered lease. Section 53-A of the Transfer of Property Act is only available as a defence to a lessee and not as VIKAS Digitally signed by VIKAS GARG GARG Date: 2024.08.31 16:43:28 +0530 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 23 of 33 conferring a right on the basis of which the lessee can claim rights against the lessor."
23. Perusal of Section 53-A T.P. Act shows that a person claiming protection of Section 53-A, has to prove that he has a contract in his favour for transfer of immovable property in writing signed by the transferor or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. The possession has been delivered to the transferee in part performance of the contract or where he was already in possession he continues in possession in part performance of the contract and has done some act in furtherance of the contract and the transferee has performed or willing to perform his part of the contract.
24. The above terms as laid down in Section 53-A of T.P. Act specifically provide that in addition to the terms of written contract, delivery of possession to the transferee, it is required to be proved by the transferee that he has done some act in furtherance of the contract and has performed or is willing to perform his part of the contract To find answer to the above vital question, I have gone through the plaint of the suit, wherein this pleading is totally missing that the plaintiff has done some act in furtherance of the contract and has performed or is willing to perform his part of the contract. Writing dated 09.06.1972 (Ex.P1/A) has been taken by the plaintiff as a sale deed and not an agreement to sell. Plaintiff has nowhere alleged that under this writing, he has ever asked the defendants to execute the sale deed in his favour or that he has always been ready and willing to perform his part of the contract i.e. to get the sale deed executed in his favour. There is nothing in the pleading or in the statement of Chhajju Ram PW2, who has appeared as attorney of plaintiff that after the execution of the agreement, any steps were taken to get the sale deed executed.
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25. In the above facts and circumstances of the case, a question arise as to whether this writing Ex.P1/A be treated as sale deed to transfer the title of the suit property in favour of plaintiff. Answer to this question will be in negative. The object of Section 53-A of T.P. Act is to give right to the defendant to protect his possession as against the transferor. He can resist the suit for recovery of possession from him either by transferor or by any person claiming under him except only from a bona fide purchaser. It is well settled proposition of law that Section 53-A T.P. Act provides the transferee right to defend his possession under the doctrine of part performance. It creates no real right and much less deprives the transferor of ownership of the land/immovable property.
26. In this case, perusal of the agreement Ex.P1/A shows that it was not an agreement, rather it appears to be executed as a sale deed of the disputed property. The plaintiff has also referred to this document as a document of purchase of disputed property and the courts below have also termed (though wrongly) the transaction through this document as sale of the disputed plot instead of agreement to sell.
27. The legal position which emerges from the above discussion is that the plaintiff has proved the execution of the document by defendants No.1 and 2, which is in fact an invalid document of sale of plot.
28. Here, learned counsel for respondent No.1 has argued that entire sale consideration was paid by the plaintiff, possession of the suit property was delivered to him, as such, he was not required to perform any other act under writing dated 09.06.1972, hence plaintiff is entitled to protection of Section 53-A of T.P. Act.
29. Before answering the above argument, it will be appropriate to ascertain as to whether under Section 53-A of T.P. Act, plaintiff can claim that he has become owner of the property agreed to be sold to him. Section 53-A T.P. Act only protects VIKAS Digitally signed by VIKAS GARG GARG Date: 2024.08.31 16:43:50 +0530 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 25 of 33 possession and does not confer any ownership right on the transferee. The ownership right is transferred only as per the relevant provisions of T.P. Act by way of sale, gift, conveyance etc. etc. and the agreement to sell does not fall in any of such category. The consequence of above observation is that defendants No.1 and 2 namely Leela Ram and Smt. Ratni continued to be owner of the suit property even after execution of writing dated 09.06.1972 in favour of plaintiff. As the plaintiff had not claimed any relief of specific performance of the agreement Ex.P1/A, sale deed executed by defendants No.1 and 2 is a legal and valid document. It is neither hit by the principle of lis pendens nor by any principle laid down under Section 53-A of T.P. Act. As already discussed, defendants No.1 and 2 or plaintiff have utterly failed to prove that the sale deed in favour of the appellant is a result of fraud, misrepresentation or concealment of facts etc. The findings of the Courts below on this aspect is beyond pleading, evidence on record and perverse, as such is set aside.
30. Having failed in proving that the sale in favour of appellant is hit by provisions of Section 52 of T.P. Act or the sale deed is illegal, null and void and result of fraud, misrepresentation and concealment of facts etc., the question to be seen is as to whether relief claimed by the plaintiff under Section 53-A of T.P. Act can be allowed.
31. It is well established that Section 53-A of T.P. Act provides for passive equity and not an active equity, conferring no right on the plaintiff to seek relief of injunction in a Court of Law based on Section 53-A of T.P. Act, though, he can use Section 53-A of T.P. Act to debar the transferor who has agreed to sell the property or any person claiming under him from claiming any right in respect of that property. The right conferred under Section 53-A of T.P. Act is a right available to the defendant only to protect his possession and on VIKAS Digitally signed by VIKAS GARG Date: 2024.08.31 GARG 16:43:58 +0530 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 26 of 33 the basis of provisions of this Section, the defendant cannot claim any title.
32. In case of Kulwant Singh and others Vs. Parsada Ram 2015 (36) RCR (Civil) 689, this Court has observed as follows:-
"25. While discussing the import of Section 53-A of Transfer of Property Act, a Division Bench of this Court (Circuit Bench at Delhi) in case of Sardari Lal and others Vs. Shrimati Shakuntla Devi 1961 PLR 362 had observed as follows:-
"17. The above section has imported the English doctrine of part performance with certain distinctive features. In England the phrase "part performance" is commonly used as a short and convenient statement of the general ground upon which verbal agreements regarding real estate are re- enforced. The doctrine rests upon the principle of fraud, and proceeds upon the idea that the party has so changed his situation on the faith of the oral agreement that it would be a fraud upon him to permit the other party to defeat the agreement by setting up the statute. The English equitable doctrine of part performance is a partial importation into India, and it is applied not generally, but within the confinement of the statute. The important limitation is, that the right conferred by section 53A is only available to a defendant to protect his possession and does not furnish a basis for cause of action. This right is restrictive in character in so far as it operates as a bar to the plaintiff asserting his title. This section contemplates that the transfer having taken place, the transferor is debarred VIKAS Digitally signed by VIKAS GARG GARG Date: 2024.08.31 16:44:08 +0530 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 27 of 33 from enforcing a right other than what is expressly provided by the contract. By applying the provisions of section 53A a person can protect his possession against a challenge contrary to the terms of the contract.
18. In Parbodh Kumar Dass v.
Dantmara Tea Co. Ltd., AIR 1940 PC 1, at page 2, Lord Macmillan said :- "In their Lordships' opinion, the amendment of the law effected by the enactment of Section 53-A conferred no right of action on a transferee in possession under an unregistered contract of sale. Their Lordships agree with the view expressed by Mitter, J. in the High Court that 'the right conferred by Section 53-A, is a right available only to the defendant to protect his possession.' They note that this was also the view of their late distinguished colleague Sir Dinshah Mulla, as stated in Edn.2 of his tratise on the Transfer of Property Act at page
262. The section is so framed as to impose a Statutory bar on the transferor; it confers no active title on the transferee. Indeed, any other reading of it would make a serious inroad on the whole scheme of the Transfer of Property Act."
It will thus be seen that section 53A confers no title on the transferee but permits this provision to be used in defence and not for attack.
Reference may also be made to New Delhi Municipal Committee v. H.S. Rikhy, AIR 1956 Punjab 181 (185), wherein the view that Section 53A merely protects the defendant and does not confer any legal right. The right which is conferred by Section 53A is in the nature of a passive equity available only to the defendant for protection of his possession without conferring upon him any active VIKAS Digitally signed by VIKAS GARG CS no. 1210/2016 GARG Date:
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26. Section 53-A was inserted in Transfer of Property Act by way of Act No.20 of 1929 on the recommendation of the Special Committee constituted by then Government of India to make recommendation whether the British equitable doctrine of 'part performance' be extended in India also. The Special Committee was of the view that an illiterate or ignorant buyer who had partly performed his part of contract required statutory protection. The Committee was of the further view that where a transferee in good faith that lawful instrument i.e. a written contract would be executed by the transferor takes possession over the property, the equity demanded that the transferee should not be treated as trespasser by the transferor and subsequently evict him through process of law in the absence of lawful transfer instrument. The Special Committee also considered the question whether protection under the proposed Section 53-A to a transferee would also be available even if the period of limitation for bringing an action for specific performance of an agreement to sell has expired. On the said question, the Committee was of the view that even after expiry of period of limitation, the relationship between the transferor and transferee remains the same as it was within the period of limitation and, therefore, the possession over the property taken in part performance of an agreement is required to be protected even if the period of limitation for bringing an action for specific performance has expired.
27. The object of introduction of the above provision in the Transfer of Property Act was to overcome the difficulty faced by the transferee in possession if his claim of seeking specific performance of agreement has become barred by limitation.Digitally signed
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28. In case of State Bank of Bikaner and Jaipur Vs. Vijay Kumar 1999(2) Civil Court Cases 671 (P&H), a Co-ordinate Bench of this Court has observed as follows:-
"If all the conditions are satisfied, then lessee (or the transferee) is entitled to continue in possession, irrespective that the lease has not been registered. Section 53-A is principally for the protection of ignorant transferees who take possession or spend money in improvements relying on documents which are ineffective as transfers or on contracts which cannot be proved for want of registration. The effect of the section is to relax the strict provisions of the Transfer of Property Act and the Registration Act in favour of the transferees in order to allow the defence of part performance to be established. It can be used not for an attack but only in defence and that too in defence only against the transferor or any person claiming under him. The right conferred is one available to the defendant to protect his possession."
29. Hon'ble Supreme Court in case of Raheja Universal Limited Vs. N.R.C. Limited and others 2012(2) R.C.R. (Civil) 506, has observed as follows:-
"47. The provisions of Section 53A of 1882 Act recognise a right of a transferee, where a transferor has given and the transferee has taken possession of the property or any part thereof. Even this provision does not create title of the transferee in the property in question but gives him a very limited right, that too, subject to the satisfaction of the conditions as stated in Section 53A of the Act of 1882 itself. In the case of State of U.P. v. District Judge (supra), this Court, while deliberating upon the rights emerging Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.08.31 16:44:40 +0530 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 30 of 33 from Section 53A of the Act of 1882, held as under:
"... That protection is available as a shield only against the transferor, the proposed vendor, and would disentitle him from disturbing the possession of the proposed transferees who are put in possession pursuant to such an agreement. But that has nothing to do with the ownership of the proposed transferor who remains full owner of the said land till they are legally conveyed by Sale Deed to the proposed transferees."
30. In case of Delhi Motor Company and Ors Vs. U.A. Basrurkar (Dead) by his legal Representative and Ors 1968 AIR (SC) 794, a Three Judges Bench of Hon'ble Supreme Court has observed that protection of Section 53-A is available as defence and does not confer a right on the basis of which a claim can be raised. Similar observations were made by Hon'ble Supreme Court in case of Biswabani Pvt. Ltd. Vs. Santosh Kumar Dutta 1980 (1) SCC 185.
31. Perusal of Section 53-A of Transfer of Property Act shows that in order to defend or protect his possession, the transferee has to fulfil following conditions:-
terms necessary to construe the transfer can be ascertained;
4) the transferee must in part performance of the contract take possession of the property, or of any part thereof;
5) the transferee must have done some act in furtherance of the contract; and
6) the transferee must have performed or be willing to perform his part of the contract.
32. In the light of the above proposition of law, it is to be seen as to whether the respondent-plaintiff was competent to file suit for injunction and seek the protection of Section 53-A of Transfer of Property Act. One of the ingredients required for seeking protection of Section 53-A of Transfer of Property Act is that he has performed or is ready VIKAS Digitally signed by VIKAS GARG GARG 16:44:52 +0530 Date: 2024.08.31 CS no. 1210/2016 Anil Kumar Jain Vs. Lata Page no. 31 of 33 and willing to perform his part of contract. There is no evidence led by the plaintiff to this effect. As such, he is not entitled to seek protection under Section 53-A of Transfer of Property Act firstly due to the non- fulfilment of the condition incorporated therein; secondly, protection under Section 53-A of Transfer of Property Act can be used not for an attack but only in defence. The right conferred is one available to the defendant to protect his possession."
It is clear that Section 53A of the Transfer of Property Act can be used as a defense by the defendant, but it does not confer any cause of action for the plaintiff to bring a suit.
Claim on basis of Suit by late Sh. J.P Gupta against Defendant no.1:-
The additional ground raised by the plaintiff, concerning a suit filed by Sh. J.P. Gupta against defendant no. 1 for declaration of the sale deed as null and void, is ineffective for two key reasons. First, there are no proper pleadings in the present case regarding this claim, which is a fundamental requirement for its consideration. Second, the plaintiff has admitted that the said suit has already been dismissed in default, significantly undermining its relevance to the current proceedings. Collectively, these factors render this additional ground ineffective in supporting the plaintiff's case, as it lacks proper legal foundation, and relevance for comprehensive adjudication.
10. In view of the entire discussion, the plaintiff's suit is not maintainable and is therefore dismissed, with no order as to costs.
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11. Decree sheet be prepared accordingly.
12. File be consigned to record room after due compliance.Digitally signed
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