Delhi District Court
Raj Singh vs Jasmer Singh And Ors on 14 November, 2024
Suit No.17212/16
IN THE COURT OF SH. DIVYANG THAKUR
DISTRICT JUDGE:03:
SOUTH WEST DISTRICT: DWARKA COURTS:NEW DELHI
Civil Suit No. 17212/16
CNR No. DLSW01-004083-2016
In the matter of :
Sh. Raj Singh
S/o Sh. Banwari
R/o Village Bamnoli, Delhi ........Plaintiff
Versus
1. Sh. Jasmer Singh
S/o Sh. Hukam Singh
R/o Village Bamnoli, Delhi
2. Sh. Amrit Lal
S/o Sh. Sonu Ram
R/o RZ-48, Indra Park,
Uttam Nagar, New Delhi - 110059
3. Sh. Sudhir
S/o Sh. Bijender
R/o Village Majri, P.O. Karala,
New Delhi ......Defendants
Date of institution of the suit : 22.12.2014
Final Arguments Heard on : 30.08.2024
Date of Judgment : 14.11.2024
Decision : DISMISSED
Raj Singh vs Jasmer Singh and Ors. Page No. 1 of 64
Suit No.17212/16
SUIT FOR POSSESSION, CANCELLATION /
DECLARATION AND PERMANENT INJUNCTION
JUDGMENT :
1. This is a suit for declaration filed by the plaintiff against the defendant thereby declaring the plaintiff as lawful and legal owner of the plot measuring 300 sq. yds. out of Khasra no.150 situated in the extended Laldora Abadi of Village Bamnoli, Delhi shown in red colour in the site plan (hereinafter referred to as 'suit property') and also declare that the documents dated 02.02.2002 purported to be executed by the plaintiff in favour of defendant no.2 and documents dated 12.04.2006 executed by defendant no.2 in favour of defendant no.3 and also the documents dated 22.08.2007 executed by defendant no.3 in favour of defendant as null and void and not binding upon the plaintiff. The plaintiff has also prayed for a decree of possession against the defendants by which the defendants be directed to hand over the vacant and peaceful possession of the suit property to the plaintiff. The plaintiff has also prayed for a decree of permanent injunction against the defendants restraining the defendants from raising any construction in the suit property and also from creating any third party interest in the suit property. Raj Singh vs Jasmer Singh and Ors. Page No. 2 of 64 Suit No.17212/16 The Plaint
2. The brief facts as mentioned in the plaint are reproduced herein as under:
(i) The plaintiff is the owner of the plot comprising in Khasra no.150, measuring 2 bighas 4 biswas situated within the extended Laldora Abadi of Village Bamnoli, Delhi. The said plot was allotted to the plantiff during the consolidation of holding in the village and the plaintiff has sold 1 bigha 6 biswas to Sh. Subhash Chand, Sh. Anil Kumar and Sh. Rameshwar and mutation has been sanctioned in their favour and now the plaintiff is the co-
owner of 14 biswas land and alongwith Sh. Subhash Chand, Sh. Anil Kumar and Sh. Rameshwar.
(ii) In the year 2011, defendant no.1 filed a suit for permanent and mandatory injunction bearing Suit No.678/2011 titled as 'Jasmer Singh vs Raj Singh' by claiming that the defendant no.1 has purchased the plot measuring 300 sq. yds. out of Kh. No.150 from defendant no.3 through registered irrecoverable GPA with consideration for Rs.17,31,000/-, inspite of the fact that the plaintiff had never sold the same to any person at any point of time.
(iii) In the year 2002, some negotiation was going on with Raj Singh vs Jasmer Singh and Ors. Page No. 3 of 64 Suit No.17212/16 defendant no.2 for selling a portion measuring 300 sq. yds out of said plot measuring 2 Bighas 4 Biswas shown in red colour in the site plan and defendant no.2 had obtained the signatures of plaintiff on some documents and stamp papers and got executed a registered General Power of Attorney dated 02.02.2002 bearing registration no.15620 in Addl. Book No.4, Volume no.8351 on page 95-96 dated 27.04.2002 at the office of Sub-Registrar-II, Janakpuri, New Delhi without paying a single penny to the plaintiff only in good faith. On repeated request of the plaintiff, the defendant neither paid the sale consideration nor got executed any sale deed and had avoided the plaintiff on one pretext or another and thus the defendant no.2 had failed to perform any part of the agreeement and thus, the plaintiff cancelled the GPA vide cancellation deed dated 28.04.2003 bearing Registration No.18950 in Addl. Book No.4, Vol.No.9003 at Page no.6 and 7.
(iv) In the suit bearing no.678/2011, defendant no.1 has claimed that defendant no.1 had purchased plot measuring 300 sq. Yds out of Khasra no.150 from defendant no.3 through registered GPA for a consideration of Rs.17,31,000/- bearing Registration No.4532 in Addl. Book No.4, Volume no.1211 page no.32 to 40 dated 22.08.2007, Agreement to Sell, Affidavit, Raj Singh vs Jasmer Singh and Ors. Page No. 4 of 64 Suit No.17212/16 Possession Letter, Receipt and Will all dated 22.08.2007. Defendant no.1 further alleged that defendant no.3 purchased the said piece of land from defendant no.2 vide GPA for a consideration of Rs.3,10,000/- bearing Registration No.3827 in Book no.4 Volume No.974 on Page no.117 to 120 dated 12.04.2006 along with Agreement to Sell, Possession Letter, Receipt and Will. Defendant no.1 also alleged that defendant no.2 had purchased the said plot in question from plaintiff through Registered Power of Attorney, Will, Agreement to Sell, Affidavit, Receipt, Possession Letter, all dated 02.02.2002 purported to be executed by the plaintiff.
(v) The ld. Trial Court had framed the following issues as per objection over the title of defendant no.1 :
(a) Whether the plaintiff has become the owner of the suit property by virtue of GPA dated 22.08.2007, registered GPA, Will, Agreement to Sell, Possession Letter, Affidavit and Receipt, all dated 22.08.2007? OPP.
(b) Whether the plaintiff is entitled to a relief of permanent injunction as prayed for? OPP.
(c) Relief.
After framing the above issues, the defendant no.1 had Raj Singh vs Jasmer Singh and Ors. Page No. 5 of 64 Suit No.17212/16 withdrawn the said suit bearing no.678/11 vide order dated 18.01.2014.
(vi) Defendant no.1 has retained the possession of the plot in question with the help of gunda elements and land mafia as defendant no.1 is a property dealer and has no right, title or interest over the plot in question. Defendant no.1 got obtained the electricity meter in the plot in question on the basis of null and void documents because the defendant has not acquired any kind of right, title or interest qua the suit property on the basis of alleged transfer documents dated 02.02.2002 executed by defendant no.2 in favour of defendant no.3. Plaintiff had never executed the alleged documents dated 02.02.2002 in favour of defendant no.2 except GPA duly registered on 27.04.2002. It is pertinent to mention that the plaintiff has constructed a room and boundary wall upon the said plot in the year 2005-06 after starting the development work in the Dwarka Sub City. The defendant no.1 gave threats to kill the plaintiff and his son and plaintiff has filed many complaints against him.
(vii) The plaintiff owned the said property in question and the defendants have no concern with the same and when the plaintiff has tried to raise construction in the plot in question in the month Raj Singh vs Jasmer Singh and Ors. Page No. 6 of 64 Suit No.17212/16 of August 2011, the defendant no.1 and his associates came on the spot and claimed that the suit property belonged to defendant no.1 and even defendant no.1 made false complaint against the plaintiff and thereafter till the receiving of notice from the civil suit filed by the defendant, the plaintiff had no knowledge about the selling of the plot in question to the defendants and till August 2011, the plaintiff was in possession of the plot in question and defendant no.1 had forcibly taken the possession of the plot in question on the basis of forged and fabricated documents and got installed an electricity meter in the room of the plaintiff. Before August 2011, there was no electricity meter and defendant no.1 has also painted the said room after retaining the possession illegally.
(viii) After withdrawal of the civil suit, defendant no.1 has contacted the defendant in the month of February 2014 to settle the dispute and offered Rs.10,00,000/- to the plaintiff and requested to execute the proper documents in favour of defendant no.1 but the plaintiff refused the said offer of the defendant no.1 and on this, defendant no.1 has given threats to plaintiff to face dire consequences if the plaintiff would make any complaint against defendant no.1 and threatened to kill the plaintiff and Raj Singh vs Jasmer Singh and Ors. Page No. 7 of 64 Suit No.17212/16 implicate him in false cases. Hence, the plaintiff was left with no other option but to file the present suit.
Proceedings of the Case
3. The present suit was instituted on 22.12.2014 in Hon'ble High Court of Delhi. On 09.01.2015, an application under Order XXXIX R 1 and 2 CPC was filed and the present suit was adjourned for arguments on the point of maintainability. On 20.02.2015, summons were issued along with notice of the application. On 04.04.2015, summons were served upon all the defendants and fresh vakalatnama was filed on behalf of all the defendants and directions were given to file Written Statement. On 12.10.2015, since Written Statement was not filed after several opportunities, right to file Written Statement was closed and the matter was fixed for admission-denial of documents. On 17.09.2015, reply to the application u/o XXXIX R 1 and 2 CPC along with application under Order VIII R 1 CPC was filed. On 11.02.2016, the matter was transferred to District Courts vide orders of Hon'ble High Court of Delhi. On 12.07.2016, since the parties did not appear for admission - denial, their right of admission-denial of documents was closed and the matter was fixed for PE. On 26.08.2016, arguments on the application under Raj Singh vs Jasmer Singh and Ors. Page No. 8 of 64 Suit No.17212/16 Order VIII R 1 CPC were heard and the same was allowed. Written Statement was taken on record and the matter was fixed for filing replication and admission - denial of documents.
4. In the Written Statement filed by defendant no.1, it was averred that the suit is not maintainable on account of concealment of material facts by the plaintiff as the suit property is not owned by the plaintiff. It is further averred that the real owner of the suit property is defendant on account of GPA executed in favour of defendant no.3, hence the plaintiff is not entitled for any relief from this Court. It is also averred that the plaint is without any cause of action and filed with ulterior motive to grab the property of the defendant and hence, is liable to be rejected under Order VII R 11 CPC. It is further averred by defendant no.1 that the plaintiff was the erstwhile owner of Khasra no.123 and initially sold the land measuring 300 sq. yds. out of Khasra no.150 (earlier Khasra no.123) situated within the extended Lal Dora abadi of Village Bamnoli, Tehsil Vasant Vihar, New Delhi through registered power of attorney on consideration in favour of defendant no.2 with free hold rights vide registered documents executed on 02.02.2022 in the office of Sub-Registrar, West District, Delhi. It is further averred that defendant no.2 Raj Singh vs Jasmer Singh and Ors. Page No. 9 of 64 Suit No.17212/16 further sold the said land to defendant no.3 vide registered GPA for a consideration of Rs.3,10,000/- vide registered instrument no.3827 in Book No.4, Volume no.974 Page no.117-120 on 12.04.2006 by executing the documents at the office of Sub- Registrar-IX, New Delhi. It is further averred that defendant no.3 had also sold the said property to defendant no.1 through GPA registered vide Instrument no.4532 in Addl. Book No.4, Vol. No.1211 on Page 32 to 40 dated 22.08.2007 for a consideration of Rs.17,31,000/- at the office of Sub-Registrar-IX, Janakpuri, new Delhi. It is further averred that defendant no.1 had thereafter constructed a room and erected boundary wall upon the said plot and also got installed electricity connection. It is further averred that the defendant used to store its material in the said plot and also time to time cultivate the said land, however, on 26.08.2011, the plaintiff along with some of his associates / muscle men started raising a Wall upon the nearby land to the plot of the plaintiff. It is further averred that later on, defendant came to know that the plaintiff is trying to close the southern road adjoining to the plot of the defendant to which the defendant objected, upon which the plaintiff initially assured the defendant that he would not touch any of the land adjoining to the plot of Raj Singh vs Jasmer Singh and Ors. Page No. 10 of 64 Suit No.17212/16 the defendant which was meant for the road, however, later on, the plaintiff started extension of threats of life to the defendant and told him that he would not only dig the road but even raise boundary wall and would close the road forever. It is further averred that defendant no.1 asked the plaintiff to desist from illegal interference in enjoyment of his rights but plaintiff in connivance with some musclemen was hell bent upon interfering into the easementary rights of the plaintiff. It is further averred that on 31.08.2011, when plaintiff in collusion with musclemen started raising the construction of wall in the space meant for road despite objections of defendant no.1, he filed a suit bearing no.678/11 titled as 'Jasmer Singh vs Raj Singh' for permanent injunction for restraining the plaintiff from interfering into the peaceful and legal enjoyment of the road situated at southern side of the plot of the defendant no.1. It is further averred that later on, the plaintiff had removed the encroachment and defendant no.1 had withdrawn the said suit. It is also averred that the plaintiff had not objected to the withdrawal of the suit as he was well aware that the property is owned by defendant no.1 but now, he has come up with the present false and frivolous plaint along with forged and fabricated documents.
Raj Singh vs Jasmer Singh and Ors. Page No. 11 of 64 Suit No.17212/16
5. On 05.10.2016, since replication was not filed, right to file the same was closed. Admission - denial of documents could not be done as parties were not present.
6. On 05.10.2016, on the basis of pleadings of the parties, the following issues were framed :
(a) Whether the suit is barred by limitation? OPD.
(b) Whether the plaintiff is entitled to a decree of declaration declaring him as a lawful and legal owner of the suit property?
OPP.
(c) Whether the plaintiff is entitled to the declaration of the documents dated 02.02.2002 (27.04.2002) purported to be executed by plaintiff in favour of defendant no.2 as null and void? OPP.
(d) Whether the plaintiff is entitled to the declaration of the documents dated 12.04.2006 executed by defendant no.2 in favour of defendant no.3 as null and void? OPP.
(e) Whether the plaintiff is entitled to decree of possession, as prayed? OPP.
(f) Whether the plaintiff is entitled to decree of permanent injunction? OPP.
(g) Relief.
Raj Singh vs Jasmer Singh and Ors. Page No. 12 of 64 Suit No.17212/16 Thereafter, the matter was fixed for plaintiff's evidence. Evidence of the Parties
7. On 23.11.2016, PW Sh. Raj Singh tendered his evidence by way of affidavit as Ex.PW-1/A and relied upon the following documents :
(i) Original copy of Khatoni Pamaish of year 2002-2003 is Ex.PW-1/1
(ii) Copy of the site plan is Ex.PW-1/2
(iii) Certified copy of the plaint in the suit no.678/2011 for permanent injunction filed by defendant no.1 herein are Ex.PW-1/3 (colly)
(iv) Cancellation deed dated 28.04.2003 is Mark A
(v) True copy of order dated 21.12.2012 in CS No.678/2011 is Ex.PW-1/5
(vi) Certified copy of the order dated 18.01.2014 in CS No.678/2011 is Ex.Pw-1/6 (colly)
(vii) Certified copy of registered GPA dated 02.02.2002 is Ex.PW-1/7
(viii) Certified copy of GPA dated 22.08.2007, agreement to sell, affidavit, possession letter, receipt and Will is Ex.PW-1/8 (colly)
(ix) Certified copy of the registered GPA dated 12.04.2006, Raj Singh vs Jasmer Singh and Ors. Page No. 13 of 64 Suit No.17212/16 agreement to sell, affidavit, possession letter, receipt and Will is Ex.PW-1/9 (colly)
(x) Certified copy of the registered GPA dated 02.02.2002, agreement to sell, affidavit, possession letter, receipt and Will is Ex.PW-1/10 (colly).
On 12.09.2017, he was cross examined by ld. counsel for defendants. In his cross examination, he deposed that he can not say whether defendant no.3 transferred the suit property in favour of defendant no.1 by GPA dated 22.08.2007. He further deposed that he came to know about the execution of documents in the year 2011 when defendant no.1 filed a case against him which was later on withdrawn by defendant no.1 who made a statement that now there is no more threat to the possession of the plaintiff. He has admitted that he has filed a similar suit against one Surender Singh and Kawal Singh for seeking cancellation of GPA on 08.02.2006 which was later on dismissed.
8. On 02.11.2019, PW Sh. Vijay Kumar, Civil Defence Volunteer, Sub-Registrar-II, Basai Darapur was examined as PW-2. He produced the record of GPA executed by the plaintiff in favour of Sh. Amrit Lal Ex.PW-2/A (OSR). In his cross examination, he deposed that the record of registered instruments Raj Singh vs Jasmer Singh and Ors. Page No. 14 of 64 Suit No.17212/16 mentioned at serial no. iii and iv of application of summoning witnesses is not available in the office of Sub-Registrar II, Basai Darapur.
9. On 25.01.2020, PW Sh. Sandeep, Sr. Asstt., Sub-Registrar Office, Kapashera was examined as PW-3. He produced attested copy of GPA executed by Sh. Amrit Lal in favour of Sh. Sudhir which is Ex.PW-3/A (OSR). In his cross examination, he deposed that he has no personal knowledge of the present case.
10. On 07.07.2022, certified copy of the proceedings of the suit no.678/11 before the Court of Ld. SCJ, Dwarka Courts was filed which is Ex.P-1. Vide separate statement of plaintiff, PE was closed and the matter was fixed for DE.
11. On 24.08.2022, defendant no.1 was examined as DW-1. He tendered his evidence by way of affidavit Ex.DW-1/A and relied upon the following documents :
(i) Sale transaction documents already Ex.PW-1/8 (colly)
(ii) Sale transaction documents already Ex.PW-1/9 (colly)
(iii) Sale transaction documents already Ex.PW-1/10 (colly) In his cross examination, he denied that in the civil suit filed before the ld. SCJ, an issue had been framed by the Court regarding ownership and he was not able to prove the same Raj Singh vs Jasmer Singh and Ors. Page No. 15 of 64 Suit No.17212/16 because of lack of evidence and hence, he withdrew that suit. He further deposed that he is not aware as to where defendant no.2 is. He has further denied that he has informed defendant no.2 about the present case and is not allowing him to appear. He further deposed that he took possession of all the documents at the time of sale transaction of the suit property. However, he further deposed that he can not produce the same as the same are not traceable. He further denied that since Sh. Amrit Lal failed to give the sale consideration amount to the plaintiff, the plaintiff cancelled the sale documents. He further denied that defendants no.2 and 3 are not appearing in the Court as he is collusion with them.
12. On 14.11.2022, Sh. R.S.Meena, DGO, BSES Power House, Najafgarh was examined as DW-2. He produced certified copy of electricity bill bearing CA no.102570652 installed in the name of defendant no.1 which is Ex.DW-2/A bearing Khasra no.150, Village Bamnoli. In his cross examination, he admitted that ownership documents were shown at the time of installation of electricity meter. He further deposed that he had no knowledge of the fact that whether the suit premises was having other electricity connection prior to installation of the present one. Raj Singh vs Jasmer Singh and Ors. Page No. 16 of 64 Suit No.17212/16
13. On 14.11.2022, an application under Order XVIII R 17 CPC was filed by ld. Counsel for defendant no.1 for recalling PW-1 for cross examination.
14. On 07.01.2023, Sh. Harish Kumar, Data Entry Operator, Sub-Registrar's Office-IX was examined as DW-3. He produced GPA dated 22.08.2007 Ex.DW-3/1 (OSR). In his cross examination, he denied that Ex.DW-3/1 had no value in the eyes of law.
15. On 14.03.2023, reply to the application under Order XVIII R 17 CPC was filed by the plaintiff.
16. On 23.05.2023, Sh. Surender Singh (brother of defendant no.1) tendered his evidence by way of affidavit Ex.DW-4/A. In his cross examination, he has denied that only receipt was issued and no amount was actually paid, therefore, the cancellation of documents was prepared and executed for which the defendant no.2 Amrit Lal was having knowledge. He further admitted that the Will and GPA Ex.PW-1/10 (colly) do not bear the signatures of witness Sh. Harbans Lal. He further denied that the cancellation executed by the plaintiff is much prior to the sale transaction documents of defendant no.1.
17. On 22.07.2023, Smt. Sunil, Sub-Registrar-II, Basai Raj Singh vs Jasmer Singh and Ors. Page No. 17 of 64 Suit No.17212/16 Darapur was examined as DW-5. She produced registered Will executed by the plaintiff in favour of Sh. Amrit Lal which is Ex.DW-5/A. In his cross examination, he denied that the said Will has been wrongly registered.
18. On 03.10.2023, vide separate statement of defendant no.1, DE was closed on behalf of all the defendants and the matter was fixed for arguments on the application under Order XVIII R 17 CPC. On 02.12.2023, arguments on the said application were heard and the same was dismissed. Thereafter, the matter was fixed for final arguments.
Contentions of the Parties
19. Ld. Counsel for Plaintiff has argued that the Plaintiff is the admitted owner of the property and that there are no valid documents that can transfer the title to Defendant no. 2 and therefore, Defendant no. 3 and Defendant no. 1 who claim through the registered GPA in favour of Defendant no.2 on the basis of agreement to sell and registered GPAs, cannot get any title from the same. He has relied upon the judgment of the Hon'ble Supreme Court in Ghanshyam Vs. Yogendra Rathi in CA No. 7527/2012 to state that the registered Power of Attorney cannot transfer the title and can create no interest in the Raj Singh vs Jasmer Singh and Ors. Page No. 18 of 64 Suit No.17212/16 immovable property and that the judgment of Suraj Lamp would stand in the way of the claim of Defendant no. 1 that he is having valid title vide registered GPA executed in his favour by Defendant no. 3. He submits that the Plaintiff had executed the cancellation deed and registered the same before Sub-Registrar and therefore, the registered GPA dated 02.02.2002 in favour of Defendant no. 2 stood cancelled and therefore, there is no question of any transfer of title in favour of the Defendants. He has further argued that he only came to know about the documents of transfer in favour of Defendant no. 1 in the year 2011 when suit for injunction was filed against him and therefore, the period of limitation would also begin from such date and as such, the suit is maintainable.
20. Per contra, Ld. Counsel for Defendants has argued that the suit is barred by limitation and that the Plaintiff has failed to prove his case neither has he proved any fraud or misrepresentation in the execution of the registered GPA of the year 2002 in favour of Defendant no. 2 nor can he revoke the GPA under section 202 of the Indian Contract Act and moreover, even if the documents in favour of Defendant no. 1 do not perfect the title but the Defendant no. 1 is entitled to protect his Raj Singh vs Jasmer Singh and Ors. Page No. 19 of 64 Suit No.17212/16 possession.
Findings
21. I shall decide all the issues together being interconnected.
22. The main crux of the claim of the Plaintiff is on the ground that he had executed only one registered GPA in favour of Defendant no. 2 in the year 2002 but as consideration was not paid, the Plaintiff had cancelled the GPA dated 02.02.2002 vide a cancellation deed and that he was shocked when in the year 2011, the Defendant no. 1 filed a suit for injunction claiming to be the owner of the suit property through Defendant no. 3 vide a registered GPA with consideration of Rs. 17,31,000/-. The Plaintiff claims that the GPA dated 02.02.2002 was without any consideration and only in good faith and that the Defendant no. 2 had obtained the signatures of the Plaintiff on some documents and stamp papers. It has been further submitted in the plaint that the Plaintiff had constructed a room and a boundary wall on the suit property in the year 2005-06. In para 17 of the plaint, it is claimed that when the Plaintiff tried to raise construction in the plot in the month of August 2011, the Defendant no. 1 and his associates came on the spot and claimed to be the owner and the Plaintiff was in possession till August 2011 and thereafter, Raj Singh vs Jasmer Singh and Ors. Page No. 20 of 64 Suit No.17212/16 Defendant no. 1 has forcibly taken the possession of the plot and got installed an electricity meter. In sum and substance, this is the claim of the Plaintiff.
23. Only Defendant no. 1 has contested the present suit. In sum and substance, the defence of the Defendant no. 1 is that he is the bonafide purchaser for consideration from Defendant no. 3 who in turn had purchased the property from Defendant no. 2. The chain of the suit property consists of the registered GPA and other usual sale documents executed by Defendant no. 2 in favour of Defendant no. 3 and subsequently, by Defendant no. 3 in favour of Defendant no. 1. It is claimed that Defendant no. 1 was in peaceful possession of the property till the year 2007 when the registered irrevocable GPA was executed in favour of Defendant no. 1 by Defendant no. 3 dated 22.08.2007 and that the Defendant no. 1 had constructed a room and boundary wall upon the said plot.
24. The following observations of fact and law can be inferred from the pleadings, documents and the evidence adduced by the parties:
(a) The first thing to be examined is the nature of transaction that was indulged into between the Plaintiff and the Defendant Raj Singh vs Jasmer Singh and Ors. Page No. 21 of 64 Suit No.17212/16 no. 2. It is pertinent to note that in the pleadings of the plaint, the Plaintiff has claimed that he consciously only executed a registered GPA in favour of Defendant no. 2, though it is also claimed that at the instance of Defendant no. 2, the Plaintiff also signed on some stamp papers. Curiously enough, a perusal of the judicial file would reveal that the Plaintiff has also filed the agreement to sell, Will, Possession letter, Affidavit, Receipt, all dated 02.02.2002. A perusal of the aforesaid documents would show that the agreement to sell, possession letter, affidavit and receipt have been executed on the same day as the registered GPA dated 02.02.2002 which has been exhibited as Ex. PW1/7 and which is admitted by the Plaintiff to have been executed by him and registered also. The agreement to sell, possession letter, affidavit and receipt are executed in favour of Defendant no. 2 Amrit Lal by the Plaintiff. The Plaintiff has made no serious efforts to show that the said documents do not bear his signatures though, it is claimed by him during the cross-examination that he had signed the Power of Attorney only and no other document.
This claim is in contradiction to the story put forward by him in the plaint where he states that he signed on some blank stamp papers at the instance of Defendant no. 2. Even more interesting Raj Singh vs Jasmer Singh and Ors. Page No. 22 of 64 Suit No.17212/16 is the fact that the Defendant has summoned the witness from the Sub-Registrar office, DW-5, who proved the registered Will dated 02.02.2002 executed by the Plaintiff in favour of Defendant no. 2. The Plaintiff has comeforth with no explanation as to why if he claims that he signed on no other document other than the registered GPA, then how come the Will of even date was also registered. In fact, the date of registration of the said Will is also 02.02.2002 and the same is exhibited as Ex. DW5/A. There is a presumption qua the validity of execution of registered documents. It appears that the Plaintiff has concealed material facts from the Court qua the documents that were executed and registered by him in favour of Defendant no. 2 in an attempt to conceal the actual nature of transaction and also deposed falsely qua the fact that the GPA was executed without any consideration. The actual nature of transaction was not merely a GPA without consideration but rather, it appears that the Plaintiff executed contemporaneously an agreement to sell, receipt, possession letter, affidavit, Will in favour of Defendant no. 2. The fact that the Plaintiff has not been able to explain the existence of these documents and concealed the fact that he also executed a registered Will, goes against him. It is relevant to note that the Raj Singh vs Jasmer Singh and Ors. Page No. 23 of 64 Suit No.17212/16 Defendant no. 1 also examined an attesting witness namely Surender Singh who was examined as DW-4. In his affidavit, the witness deposed that he was the permanent resident of Village Bamnoli and knows the parties to the suit very well. He further deposes that he was an attesting witness to the documents dated 02.02.2002 and has also identified the signatures of the Plaintiff on the said documents. A perusal of the registered GPA dated 02.02.2002 Ex. PW1/7 would show that one of the attesting witnesses is Surender Singh i.e. DW-4 who has also identified his signatures on the same. No suggestion was given to the said witness that the signatures of Surender Singh on Ex. PW1/7 which is the admitted document by the Plaintiff himself do not belong to DW-4. Interestingly enough, the Plaintiff gave a suggestion to DW-4 that only the receipt was executed and no amount was actually paid, thereby, it appears that even it is the case of the Plaintiff that he executed the receipt of consideration. No other fact or contradiction has come up in the testimony of DW-4 to show that he is an unreliable witness or that he is deposing falsely. The mere fact that he is the brother of Defendant no. 1 would not mean that his testimony loses significance especially considering the fact that there is no Raj Singh vs Jasmer Singh and Ors. Page No. 24 of 64 Suit No.17212/16 controversy about the execution of the registered GPA Ex. PW1/7 and the registered Will Ex. DW5/A wherein, admittedly, DW-4 is the attesting witness. The inference can be drawn that he has deposed truthfully about the fact that in addition to the registered GPA and Will, an agreement to sell, receipt, possession letter and affidavit were also executed by the Plaintiff in favour of Defendant no. 2 and which fact has sought to be concealed by the Plaintiff. Therefore, I find that the true nature of the transaction between the Plaintiff and Defendant no. 2 was for an agreement to sell and purchase the suit property and that consideration had also passed hands and the GPA dated 02.02.2002 in favour of Defendant no. 2 was an irrevocable GPA for consideration.
(b) Therefore, the cancellation deed registered unilaterally (Ex. PW1/4) dated 28.04.2003 cannot have the effect of cancelling the registered GPA due to the provisions of Section 202 of the Indian Contract Act, 1872.
In Harbas Singh vs. Shanti Devi (15.09.1977 - DELHC) :
MANU/DE/0112/1977, Hon'ble High Court of Delhi has observed as under:
"6) Shri G. S. Vohra, learned counsel for the appellant, argued that in the context of the Raj Singh vs Jasmer Singh and Ors. Page No. 25 of 64 Suit No.17212/16 circumstances, Shri Gulati fully understood the meaning of the notice that it was intended to cancel both the powers of attorney held by him. He referred to the reply dated 1-3-1965 given by Shri Gulati to the appellant stating that the appellant had executed the power of attorney, general and special, and that the same were irrevocable. Learned counsel also referred to the letter written by the appellant's lawyer to the respondent in which it was stated that all documents in favor of the respondent and her husband were cancelled by the appellant. In our view, the meaning of the notice Exhibit D-2 has to be understood only by reading that. document. The said document cannot be read in the light of the letter sent to the respondent or the reply given by Shri Gulati.
As the notice is ambiguous and defective, it was not effective in cancelling the two different powers of attorney held by Shri Gulati from the appellant. Even if it is assumed that the ambiguous or defective language of the notice could be understood in the context of the other circumstances and the other Raj Singh vs Jasmer Singh and Ors. Page No. 26 of 64 Suit No.17212/16 documents to mean that both the powers of attorney were cancelled, the consideration of the second point would show that in view of section 202 of the Contract Act, the appellant had no power to cancel the same. Section 202 of the Contract Act is as follows:-
" WHERE the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot. in the absence of an express contract, be terminated to the prejudice of such interest."
If the agent himself had an interest in the property which formed the subject-matter of the agency, then in the absence of an express contract to the contrary these powers of attorney could not be terminated by the appellant to the prejudice of such interest. Firstly, let us consider the meaning of the expression "interest" in section 202. The word has not been defined in the Contract Act. It has, Therefore, to be construed in the light of the situations which arise under the various provisions of the Contract Act. The Raj Singh vs Jasmer Singh and Ors. Page No. 27 of 64 Suit No.17212/16 Act deals with all kinds of property, movable and immovable, corporeal and incorporeal. It also deals with all kinds of rights, proprietary, non-proprietary personal and corporate. The word "interest" is to be applied to a wide variety of cases under the Contract Act and must, Therefore, be given a wide meaning to serve these wide purposes of the Act. It is not a term of art or a technical word. In jurisprudence, the word "interest" simply means an advantage or a benefit.
"Interests are things which are to a man's advantage :
he has an interest in his freedom or his reputation. His rights to these, if he has such rights,. protect the interests, which accordingly form the subject of his rights but are different from them. To say he has an interest in his reputation means that it is to his advantage to enjoy a good name. "However, every interest of a person may not become a right. It is only those interests which are legally recognised and/or are legally protected or enforced which amount to legal rights. (Salmond on Jurisprudence, 12th Edition, pages 217-218). The German jurist jhoring Raj Singh vs Jasmer Singh and Ors. Page No. 28 of 64 Suit No.17212/16 viewed law as a reconciler of conflicting interests. Roscoe found regards human disorders and claims as interests which exist independently of the law and which are constantly "pressing for recognition and security." (Philosophy of Law, Revised ' Edition, 1954). In the American Restatement of the Law erf torts (Second Edition, 1965) the word "interest" is used to denote the object of any human desire. (7) For the purposes of the Law of Contract, Therefore, it would not be useful to restrict the meaning of the word "interest" by the narrow compass in which this world is used at times in relation to immovable property. For instance, the last sentence of section 54 of the Transfer of Property Act states that a contract for sale of itself does not create any interest in or charge on immovable property.
Similarly, section 17(1)(b) of the Registration Act makes only those documents compulsorily registerable which create, declare, assign, limit or extinguish any right, title or interest, whether vested or contingent, of the value of one hundred rupees and Raj Singh vs Jasmer Singh and Ors. Page No. 29 of 64 Suit No.17212/16 upwards to or in Immovable property. Since an agreement for sale does not create such a right, title or interest, it may not be compulsorily registerable. But in the context of the Contract Act, it cannot be said that a person who is the beneficiary of an agreement of sale has no right or interest in the subject-matter of the sale. He has a legally enforceable right and interest in enforcing the contract of sale by the execution of a sale deed and in getting possession of the property agreed to be sold under the provisions of the Specific Relief Act. In the English Common Law, the specific performance of contracts was a part of the law of contract. This is why Chapter Iv of the Contract Act deals with the performance of contracts which includes the performance of contracts relating to immovable property also. In fact, section 4 of the Transfer of Property Act says that the chapters and sections of that Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872. Therefore, the respondent in whose favor the appellant had executed Raj Singh vs Jasmer Singh and Ors. Page No. 30 of 64 Suit No.17212/16 an agreement for the sale of an immovable property had an interest in the subject-matter of the contract, namely, the shop, turn the purposes of section 202 of the Contract Act if not for the purposes of the Transfer of Property and the Registration Acts. (8) In Loonkaran Sethiya v. State Bank of Jaipur, MANU/SC/0222/1968 : [1969]1SCR122 , the respondent bank was given an irrevocable power of attorney by the appellant. For, the appellant had borrowed money from the bank. He had empowered the bank to recover money due to him from his debtor by executing a decree in which he was the decree- holder. The word "interest" under section 202 of the Contract Act was construed as follows at page 126 of the report :- .
"THERE is hardly any doubt that the power given by the appellant in favor of the Bank is a power coupled with interest. That is clear both from the tenor of the document as well as from its terns.. ...... .It is settled law that where the agency is created for valuable consideration and authority is given to effectuate a Raj Singh vs Jasmer Singh and Ors. Page No. 31 of 64 Suit No.17212/16 security or to secure interest of the agent, the authority cannot be revoked."
This statement of law reproduces the English Common Law as would be evident from a reference to Article 135 in Bowstead on Agency, Fourteenth Edition, the relevant part of which is as follows :-
" WHERE the authority of an agent is given by deed, or for valuable consideration, for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest. But it is not irrevocable merely because the agent has? an interest in the exercise of it, or has a special property in, or lien for advances upon, the subject-matter of it, the authority not being given expressly for the purpose of securing such interest or advances.
(2)Where a power of attorney, whenever created is expressed to be irrevocable and is given to secure a proprietary interest of the donee of the power, or the performance of an obligation owed to the donee, then, so long as the donee has that interest, or the Raj Singh vs Jasmer Singh and Ors. Page No. 32 of 64 Suit No.17212/16 obligation remains undischarged, the power is irrevocable."
All the conditions of irrevocability are satisfied in the present case. The authority to the agent was given for valuable consideration which proceeded from the .respondent. It was given for the purpose of effectuating security or protecting or securing the interest of the agent. For, the only purpose of the agency was to ensure and secure the performance of the contract by the appellant in favor of the respondent for whom Shri Gulati was acting as the husband and the nominee and, Therefore, a representative or an agent. Where the performance of the agency is not to secure the interest or the benefit of the agent then the agency is not irrevocable merely because the agent has an interest in the exercise of it or has a special property in or lien for advances upon the subject-matter of it.
(9) In Palani Vannan v. Krishnaswami Konar, MANU/TN/0179/1945 : Air 1946 Mad 9, the primary object of the power of attorney was to recover the Raj Singh vs Jasmer Singh and Ors. Page No. 33 of 64 Suit No.17212/16 money on behalf of the principal by the execution of a decree. The, incidental provision for the employment of an agent and enabling the agent to recover his out-of-pocket expenses from the decretal amount did not make the object of the power of attorney to be the benefit of the agent. Section 202 of the Contract Act, Therefore, did not apply. For the same reason, section 202 was not attracted to the facts in Dalchand v. Seth Hazarimal MANU/NA/0048/1931 : Air 1932 Nag 34 because the agent was merely entitled to retain a part of the price of the cloth sold by him as his remuneration but he had no interest in the cloth itself -within the meaning of section 202. The same distinction is maintained in Mutharasu Thevar v. Mayandi Thevar, MANU/TN/0160/1968 : AIR1968Mad333 . But the facts of the case before us are different. They are analogous to the facts of the Supreme Court decision referred to above and, Therefore, the agent in our case had an interest in the property which was the subject-matter of the agency within the meaning of Raj Singh vs Jasmer Singh and Ors. Page No. 34 of 64 Suit No.17212/16 section 202.
(10) The matter may be looked at from another point of view. Legally protected interest or a benefit of one party casts a corresponding obligation on the other party to the contract. If the contract of agency confers an interest or a benefit on the agent, it casts an obligation on the principal. In the present case, the appellant, as a principal, was under an obligation to perform the contract of sale by the execution of a conveyance. In the words of Bowstead, "authority is normally only irrevocable when it is the security or other proprietary interest, or part of the security, or where its conferring constitutes the performance of the obligation". Such a power is referred to as a "power coupled with an interest" and should be regarded as a property disposition rather than as the conferring of authority. The Restatement (the American Restatement of the Law on Agency, section 138) uses the phrase "power given as security" defined as "a power to affect the legal relations of another, created in the form of an agency Raj Singh vs Jasmer Singh and Ors. Page No. 35 of 64 Suit No.17212/16 authority, but held for the benefit of the power holder or a third person, and given to secure the performance of a duty or to protect a title, either legal or equitable, such power being given when the duty or title is created or given for consideration." (OP cit, page 424). Since the power of agency has been conferred not for the benefit of the principal but for the benefit of the agent representing a third party and not as representing the principal, the power becomes irrevocable. , (11) The next question is whether this interest was only that of the respondent or that of Shri Gulati also. Paragraph 3 of the agreement of sale executed by the appellant itself describes Shri Gulati as "a nominee and husband" of the respondent. It also says that the appointment of Shri Gulati as the appellant's attorney was made "in order to facilitate the transaction" of sale by the appellant to the respondent. Why had the appellant to appoint as his agent Shri Gulati who was really the nominee and the husband of the respondent ? The reason obviously was that Shri Gulati was Raj Singh vs Jasmer Singh and Ors. Page No. 36 of 64 Suit No.17212/16 regarded really as a person who is really interested in his wife, namely, the respondent rather than in the appellant whose interests were opposed to those of the respondent. By his relationship with the respondent and also by his nomination by the respondent Shri Gulati was in the position of a representative or an agent of the respondent in fact. It is only in law that he became an agent of the appellant. But this agency was only with a view to serve the purpose of the respondent. This is why the last sentence in paragraph 3 of the said agreement states that the appellant shall not be liable for any negligence of Shri Gulati "who is the nominee" of his own wife. Since Indian ladies are traditionally not transacting business activities, it is well known that their husbands figure as their representatives or agents in these activities. This is why Shri Gulati has acted for the respondent in these transactions. His interest in this transaction was the same as that of his wife. It was, Therefore, the interest of Shri Gulati that the property which was the subject-matter of the Raj Singh vs Jasmer Singh and Ors. Page No. 37 of 64 Suit No.17212/16 agency .should be conveyed by the appellant to the respondent. The interest in such conveyance was not only of the respondent but also of Shri Gulati. The powers of attorney in favor of Shri Gulati were executed by the appellant on the same date on which he executed the agreement of sale in favor of the respondent. Since Shri Gulati acted for his wife, all these documents, Therefore, constitute one transaction. The powers of attorney are granted to Shri Golati only because an agreement of sale is entered in favor of his wife. Shri Gulati no less than his wife is, Therefore, interested in the subject- matter of the agency, namely, the shop. If the agency were to be terminated, prejudice would have been caused to the interest not only of the respondent but also of Shri Gulati. Section 202 of the Contract Act, Therefore, prohibited the appellant from terminating the agency of Shri Gulati before the shop was duly conveyed by the appellant to the respondent. (12) There is no difference between the general and the special powers of attorney in this respect. Both of Raj Singh vs Jasmer Singh and Ors. Page No. 38 of 64 Suit No.17212/16 them are for the benefit of the respondent and her nominee Shri Gulati. Neither of them is for the benefit of the principal, the appellant. Shri Vohra argued that the respondent and her husband Shri Gulati are two different persons in the eye of law. This may be so. But their interests are identical. It cannot be said that Shri Gulati had no interest in the property which is the subject-matter of the agency. We have already stated that interest does not mean ownership or title in the immovable property. It means an advantage or a benefit or a legally enforceable right. Shri Gulati had the right to legally enforce the obligation cast on the appellant to convey the property to the respondent. This interest and right was of Shri Gulati himself though it may be for the benefit of the respondent namely, his wife. It is immaterial, Therefore, that only the general power of attorney was expressly made irrevocable while the special power of attorney was not so made. It is section 202 of the Contract Act which makes them both irrevocable."
Raj Singh vs Jasmer Singh and Ors. Page No. 39 of 64 Suit No.17212/16 Accordingly, I find that the registered GPA was irrevocable in favour of Defendant no. 2 and that it was for the Plaintiff to file a suit for cancellation within the prescribed period under Article 59 of the Schedule to the Limitation Act as the same could not have been cancelled vide a unilaterally executed cancellation deed whether registered or not.
(c) The aforesaid conclusion also means that the possession of the property had also been transferred by the Plaintiff to Defendant no. 2 in accordance with the possession letter dated 02.02.2002. The Plaintiff has tried to make out a case that he remained in possession of the suit property till August 2011, however, the fact remains that the Plaintiff has not proved any single incident of physical ownership of the suit property between 2002 and 2011. Pertinently, DW-1 i.e. Defendant no. 1 deposed on affidavit that after taking possession from Defendant no. 3, he had raised boundary wall and constructed room and also taken electricity connection. Defendant no. 1 has proved the electricity bill Ex. DW2/A by examining the concerned official of BSES. The meter energization date as per the said bill is 13.07.2008. It is reasonable to assume that the Defendant no. 1 has deposed truthfully about the fact that he had obtained Raj Singh vs Jasmer Singh and Ors. Page No. 40 of 64 Suit No.17212/16 electricity connection in the year 2008 and that he had taken possession in the year 2007 from Defendant no. 3. I find it hard to believe that an electricity connection could be installed at the suit property and the Plaintiff would remain blissfully unaware about the same for more than four years. During cross- examination, PW-1 admitted that he has made no police complaint against any of the Defendants from 28.04.2003 till date. It is unlikely that if the Defendant no. 1 had ousted forcibly the possession of the Plaintiff, then the Plaintiff would have remained silent and not given even a single complaint to the police. In fact, in the pleadings, the Plaintiff does not even bother to name the specific date on which he has lost possession of the property. He claims to have erected a boundary wall in the year 2006 but not a single photograph or any other proof has been placed on record to prove the same. Therefore, I find that on a balance of probabilities, the Plaintiff had in fact, handed over possession to Defendant no. 2 who in turn, had handed over possession to Defendant no. 3 and in turn, to Defendant no. 1 being the subsequent transferees.
(d) The stand of the Defendant no. 1 is based on the doctrine of part performance under Section 53A of the Transfer of Raj Singh vs Jasmer Singh and Ors. Page No. 41 of 64 Suit No.17212/16 Property Act, 1882. The question arises whether the same can be applied to the facts of the present case and the benefit taken by Defendant no. 1 who is the subsequent transferee from Defendant no. 3 who was in turn the subsequent transferee of Defendant no. 2 who was the original transferee from the Plaintiff. A situation similar to the present case was observed in the below cited judgment of the Division Bench of the Hon'ble High Court of Delhi.
In Raj Kumari Garg vs. S.M. Ezaz and Ors. (13.08.2012 - DELHC) : MANU/DE/3860/2012 Neutral Citation:
2012:DHC:4922-DB, Hon'ble High Court of Delhi has observed as under:
"Ground (i)
24. We have recorded aforesaid that there is no dispute about the execution of agreement to sell and purchase and collateral documents on 7.7.1998 coupled with notional possession being parted as the licensee was in possession who subsequently surrendered possession to respondents 3 & 4 and who in turn gave it to respondents 1 & 2. Thus, respondents 1 & 2 are claiming under respondents 3 Raj Singh vs Jasmer Singh and Ors. Page No. 42 of 64 Suit No.17212/16 & 4. The plea raised by respondents 1 & 2 is predicated on the provisions of Section 53A of the TP Act, which reads as under:
53A. Part performance Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, 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 is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the Raj Singh vs Jasmer Singh and Ors. Page No. 43 of 64 Suit No.17212/16 transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: PROVIDED that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
25. There can be no doubt that the parties have contracted to transfer the immovable property when they executed the agreement to sell & purchase and collateral documents. It is also coupled with possession being parted with by the appellant in favour of respondents 3 & 4 in part performance of the contract and full consideration stands paid by respondents 3 & 4 and appropriated by the appellant. Thus, the prohibition envisaged against the transferor in the absence of any instrument to transfer would come into play under the provisions Raj Singh vs Jasmer Singh and Ors. Page No. 44 of 64 Suit No.17212/16 of Section 53A of the TP Act. In fact, the right to make further transfers has been specifically conferred under Clause 18 of the agreement to sell & purchase dated 7.7.1998 as observed by the learned single Judge. It is in exercise of such a right that respondents 3 & 4 executed the agreement to sell dated 1.5.2004 in favour of respondents 1 & 2.
26. In State of U.P. Vs. District Judge & Others MANU/SC/0020/1997 : 1997 (1) SCC 496, [which has been relied upon by the Supreme Court in Rambhau Namdeo Gajre Vs. Naryan Bapuji Dhotra (Dead) Through LRs. MANU/SC/0680/2004 : (2004) 8 SCC 614], the Hon'ble Supreme Court was dealing with a case relating to the applicability of the U.P. Imposition of Ceiling on Land Holdings Act, 1980 (the U.P. Act) to the land which the owner/vendor had agreed to sell to a vendee. The issue that arose for consideration was whether such land could be included in the holding of a person for computing the ceiling limit of his holding under Section 5(1) of the U.P. Act. The contention of the Raj Singh vs Jasmer Singh and Ors. Page No. 45 of 64 Suit No.17212/16 owner/vendor was that since he had agreed to sell a part of his holding to the vendee, and put the vendee in possession thereof, the said land could not be included for computing the ceiling of his holding. The Hon'ble Supreme Court negated this submission on the premise that unless a transfer of land takes place by a registered instrument, the vendor continues to remain the full owner thereof.
Consequently, it was held that the said land would form part of the owner's/vendor's holding for purposes of the aforesaid Act. The Hon'ble Supreme Court further observed that the right to protect possession against the proposed vendor (which is available to the proposed vendee under Section 53A of the Transfer of Property Act (TPA), in cases where the requirements of the said Section are fulfilled) cannot be pressed in service against a third party, like the State, which seeks to enforce the provisions of the U.P. Act against the tenancy holder/owner/vendor.
27. We may observe that the aforesaid decision did Raj Singh vs Jasmer Singh and Ors. Page No. 46 of 64 Suit No.17212/16 not deal with a situation like the present, where the vendee under an agreement to sell had further agreed to transfer his rights, under the said agreement to sell. to yet another person. The relevance of the said decision for our purpose is only that the Hon'ble Supreme Court re-stated the well-established legal position that the owner/vendor remains the full owner of the land, till the land is legally conveyed by a sale deed to the vendee, and that Section 53A of the T.P.A. does not impinge on the said legal position, as Section 53A merely protects the possession of the vendee in cases where the requirements of that Section are fulfilled. The judgment further observes that the vendee cannot invoke the protection granted by Section 53A of the T.P.A. against a third party, who seeks to enforce its statutory right in respect of the land agreed to be transferred to the vendee.
28. Learned counsel for the appellant laid emphasis only on the views expressed by the Supreme Court in Rambhau Namdeo Gajre case (supra), which Raj Singh vs Jasmer Singh and Ors. Page No. 47 of 64 Suit No.17212/16 places reliance on State of U.P. Vs. District Judge & Others case (supra). The similarity between the present case and the facts of that case rest only with there being an agreement to sell without there being a sale deed. There were no collateral documents executed. The party purchasing under the agreement to sell sold it further to a third party who in turn claimed the defence of Section 53A of the TP Act. One important fact in that case noticed is that the original agreement to sell was not proved and neither was it brought on record. It is in these circumstances that the subsequent purchaser was held not entitled to the defence of Section 53A of the TP Act. In the facts of the present case, all the rights are transferred by the appellant to respondents 3 & 4 under the agreement to sell & purchase which is duly registered and is accompanied by other collateral documents like the GPA, SPA, Will, etc. and parting of notional possession as there was a licensee. Ultimately the physical possession also came to respondents 3 & Raj Singh vs Jasmer Singh and Ors. Page No. 48 of 64 Suit No.17212/16
4. A specific clause 18 of the agreement to sell & purchase confers unfettered and uninterrupted rights and powers on Respondents 3 & 4 to further sell or otherwise transfer, in any manner, in whole or in part to anybody and that the appellant would have no claim or objection to the same. Therefore, the appellant gave the unfettered right of assignment of their rights under the agreement to sell dated 7.7.1998 to respondents 3 & 4. There was no such authority in Rambhau Namdeo Gajre case (supra). In the present case both the first purchaser and the subsequent purchase have been made parties and respondents 1 & 2 are claiming under respondents 3 & 4. Respondents 3 & 4 have already sued for getting the property converted into freehold and for getting the conveyance deed executed in their favour as the intent of the appellant has become dishonest when the conversion was applied for conversion of leasehold rights into freehold.
29. Section 53A of the T.P.A. debars the transferor Raj Singh vs Jasmer Singh and Ors. Page No. 49 of 64 Suit No.17212/16 or any person claiming under him" from enforcing against "the transferee and persons claims under him" any right in respect of the property of which the transferee has taken or continued in possession, other than the right expressly provided by the terms of the contract. The said provision, therefore, consciously protects the rights of not only the transferee, but also of persons claiming under the transferee, even though the rights of the transferee are not perfected as there is only an agreement to sell and not a registered sale deed/conveyance deed. Therefore, it cannot be argued that a person claiming under the transferee would not be entitled to protect his possession, merely because the title of the transferee was not perfected. The intention of the law clearly is to protect the rights of not only the transferee, but also of persons claiming under the transferee. even though the transferee does not have perfect title. If the transferee had a perfected title on the basis of a registered conveyance deed, the question of involving Section 53A of the TPA Raj Singh vs Jasmer Singh and Ors. Page No. 50 of 64 Suit No.17212/16 would not arise.
30. Pertinently, the Hon'ble Supreme Court in paragraph 12 observed that the doctrine of part performance as contemplated by Section 53A can be availed of by the transferee, or any person claiming under him. However, it did not deal with the issue whether the defendant appellant was a person claiming under the transferee. It only observed that the appellant not being the transferee within the meaning of Section 53 of the T.P.A., could not invoke the doctrine of part performance to protect his possession as against the plaintiff respondent.
31. In our view, the respondents No. 1 & 2 are persons claiming under the transferee, i.e. respondents No. 3 & 4 having taken over the rights of respondents No. 3 & 4 in respect of the agreement to sell and purchase dated 07.07.1998 from respondents No. 3 & 4.
32. A Division Bench of the Kerala High Court in A.M.A Sultan (deceased by LRs) and Ors. Vs. Raj Singh vs Jasmer Singh and Ors. Page No. 51 of 64 Suit No.17212/16 Seydu Zohra Beevi, AIR 1990 Kerala 186, was dealing with an appeal filed by defendants in suit for rendition of accounts and injunction, which had been decreed by the trial court. The plaintiff in the suit had executed a power of attorney in favour of defendant No. 1 for the purpose of managing the plaintiff's property. It was the case of the plaintiff that defendant No. 1 did not render the accounts and had misappropriated the amounts due to her (the plaintiff). Defendant No. 1, in his written statement, admitted to the power of attorney being executed in his favour. However, at the same time, it was contended that the plaintiff had subsequently executed an agreement for sale in his favour and that he (defendant No. 1) had paid the entire consideration under the same and as such was entitled to protection under Section 53A, T.P. Act. It was also contended that the property was now in the possession of defendant No. 2. Defendant No. 2 reiterated the contentions of defendant No. 1. The question considered by the Court was whether, on Raj Singh vs Jasmer Singh and Ors. Page No. 52 of 64 Suit No.17212/16 the pleadings, defence under Section 53A was available to the defendants. As regards defendant No. 1, the Court rejected the plea based on the agreement for sale. We need not go into the reasons therefor. Rejecting the plea of defendant No. 2, as regards the protection under Section 53A on the ground that it was not the case of the defendants that the agreement in favour of the first defendant were ever assigned in favour of the second defendant, the Division Bench observed as under:-
13. Section 53A enacts that the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract. A person claiming under a transferee can make a valid defence under Section 53A only if he is armed with an agreement in his favour. As there is no pleading of the assignment or any agreement in favour of the Raj Singh vs Jasmer Singh and Ors. Page No. 53 of 64 Suit No.17212/16 second defendant he cannot definitely claim benefit under Section 53A A person claiming under a transferee as per assignment can defend his possession in his favour. Second defendant has no case that he obtained assignment of the agreements relied on by the first defendant.
(emphasis supplied)
33. Another aspect taken note of in the impugned order and which was canvassed before us arises from the judgement of the Supreme Court in Suraj Lamp & Industries Private Limited (2) Through Director Vs. State of Haryana & Anr.
MANU/SC/1222/2011 : (2012) 1 SCC 656. The execution of agreement to sell & purchase coupled with collateral documents like GPA, SPA, Will, etc. has been a common practice in Delhi. The validity of such a practice has been examined in the said judgement and it has been held that the bunch of such documents cannot be recognized as deeds of title, "except to the limited extent of Section 53A of the TP Act". In fact, it has been observed in paras Raj Singh vs Jasmer Singh and Ors. Page No. 54 of 64 Suit No.17212/16 26 & 27 that the observations of the Supreme Court are not intended in any way to affect the validity and powers of attorney executed in genuine transactions and the bunch of documents can continue to be treated as existing agreements of sale which would not prevent the affected parties from getting the registered deeds of conveyance to complete their title. The said bunch of documents can also be used to obtain specific performance or to defend possession under Section 53A of the TP Act. We reproduce para 26 of the said judgment as under:
26. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not 'transfers' or 'sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale.
Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said 'SA/GPA/WILL transactions' may Raj Singh vs Jasmer Singh and Ors. Page No. 55 of 64 Suit No.17212/16 also be used to obtain specific performance or to defend possession under Section 53A of Transfer of Property Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to 'SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision. It is, thus, clear that the present case fits in with the legal principles laid down and the defence of Section 53A of the TP Act in such a case would be available to respondents 3 & 4 and since respondents 1 & 2 are claiming under them, similarly to them too.
34. We are, thus, of the view that the possession of respondents 3 & 4 (and in turn of respondents 1 &
2) is protected under Section 53A of the TP Act." The aforesaid judgment is a complete answer to the present Raj Singh vs Jasmer Singh and Ors. Page No. 56 of 64 Suit No.17212/16 case. In the present case also, it has been observed that the Plaintiff had executed an irrevocable GPA coupled with receipt of full consideration and the agreement to sell which records that the Defendant no. 2 has become the undisputed owner of the property and that vacant possession has been delivered to him. There was indisputedly a contract for transfer of the immovable property along with transfer of actual physical possession. The receipt which is admitted to be executed by the Plaintiff records that complete sale consideration has been paid by Defendant no.
2. The Defendant no. 1 who claims under Defendant no. 3 who in turn claims under Defendant no. 2 would stand covered by the provision of Section 53A as claiming under the original transferee i.e. Defendant no. 2. I have already found that the actual physical possession has been proved to have come to Defendant no. 1 in the year 2007. Therefore, the Defendant no. 1 though, he might not be having perfected his title but can certainly protect his possession under section 53A being the subsequent transferee claiming under Defendant no. 2. The transfers in favour of Defendants no. 2, 3 and 1 have all been made vide registered documents and therefore, the post 2001 amendment which requires the registered document to sustain a Raj Singh vs Jasmer Singh and Ors. Page No. 57 of 64 Suit No.17212/16 claim of Section 53A also stands satisfied. The ratio of Raj Kumari Garg (supra) would be fully applicable. The Hon'ble High Court had also explained that in Suraj Lamp's case, the Hon'ble Supreme Court had recognized that though, GPA sales are not needs of title but they can be used to protect possession to the limited extent allowed by Section 53A of the Transfer of Property Act. Therefore, the judgments in this regard cited by Ld. Counsel for Plaintiff do not affect the conclusions drawn above. I find that therefore, the Defendant no. 1 can protect his possession even though, his title is imperfect, as against the Plaintiff as all requirements of Section 53A stand satisfied.
(e) I also find that the present suit is time barred. In Raj Kumari Garg (supra), Hon'ble High Court of Delhi has observed as under:
"Grounds (ii), (iv) & (v)
18. The learned single Judge has referred to the provisions of the Limitation Act, 1963 (hereinafter referred to as the "Limitation Act"). It can really not be disputed that Article 58 of the Schedule to the Limitation Act prescribing period of limitation for suits relating to declaratory decrees would apply if Raj Singh vs Jasmer Singh and Ors. Page No. 58 of 64 Suit No.17212/16 the documents have to be cancelled. The period prescribed is three (3) years from the date the right to sue accrues. In fact, under Section 3 of the Limitation Act, suits, appeals and applications made after the prescribed period of limitation, subject to the provisions of Sections 4 to 24 of the Limitation Act, are liable to be dismissed even though limitation may not have been set up as a defence. If the appellant was to claim cancellation of the documents executed in favour of respondents 3 & 4 on 7.7.1998, execution of which is not denied nor receipt of full consideration with possession being parted, the period of limitation had expired long time back in July, 2001. The suit for possession was filed in the year 2009, i.e., after eleven (11) years from the date when the cause of action accrued.
19. The reason why the three issues have been dealt with together is because of the ingenious frame of the suit and the plea sought to be advanced on behalf of the appellant that she does not seek cancellation of documents but only seeks possession and, thus, Raj Singh vs Jasmer Singh and Ors. Page No. 59 of 64 Suit No.17212/16 the limitation should be treated as twelve (12) years.
20. The aforesaid plea is only stated to be rejected as the issue is no more res integra in view of the judgement of the Division Bench of this Court in Jyotika Kumar Vs. Anil Soni & Ors. 156 (2009) DLT 685 (DB). The factual matrix is quite similar where possession was sought without seeking cancellation of the documents and also from parties with whom there was no privity of contract. Thus, the judgement applies on all fours. It has been observed that there can be no valid cause of action on the date of filing of the suit when the prayer for declaration would be time barred under Article 58 of the Limitation Act. A mere suit for possession could not have been maintained.
21. It is quite obvious that the appellant has filed the mere suit for possession with an injunction without seeking declaration of cancellation of documents being conscious of the claim for cancellation being beyond time and, thus, would have faced a defence of the suit being barred by time. An illusion of cause Raj Singh vs Jasmer Singh and Ors. Page No. 60 of 64 Suit No.17212/16 of action is sought to be created to get over the period of limitation. There has to be a meaningful reading of the plaint and not a mere formal reading as observed by the Supreme Court in T. Arivandandam Vs. T.V. Satyapal & Anr.
MANU/SC/0034/1977 : (1977) 4 SCC 467.
22. The observations of the Supreme Court in Ramaiah Vs. N. Narayana Reddy (Dead) By LRs. MANU/SC/0600/2004 : AIR 2004 SC 4261 are enlightening. It has been observed in para 10 while referring to the commentary on the Limitation Act by Sanjiva Row (Ninth Edition-II Volume page 549) that the question as to which of the two articles would apply to a particular case should be decided by reference to pleadings though the plaintiff cannot be allowed by skilful pleading to avoid the inconvenient article. We may also note that respondents 1 & 2 have denied any title continuing to vest with the appellant and it has been held by the Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) LRs. & Ors. MANU/SC/7376/2008 :
Raj Singh vs Jasmer Singh and Ors. Page No. 61 of 64 Suit No.17212/16 (2008) 4 SCC 594 that where there is such denial of title and a cloud over the claim of the plaintiff, relief of declaration is necessary.
23. We are in complete agreement with the views expressed by the learned single Judge that the plaint as framed merely for possession cannot be maintained in law without the relief of declaration for cancellation of the documents executed by the appellant in favour of respondents 3 & 4 and the real issue cannot be obfuscated by seeking to raise a plea that only possession is being sought (and that too from respondents 1 & 2) as those respondents do not have any right to continue in possession even though there is no privity of contract between the appellant and respondents 1 & 2."
The Plaintiff has attempted to frame the cause of action as arising due to the suit of injunction filed by the Defendant no. 1 against him in the year 2011. However, the foundational document which has led to the subsequent transfers is the GPA dated 02.02.2002 being Ex. PW1/7. I have already found above that the same could not be cancelled by an unilateral cancellation Raj Singh vs Jasmer Singh and Ors. Page No. 62 of 64 Suit No.17212/16 deed. The Plaintiff pleads that he had to cancel the same as the consideration had not been paid. At the very least, such facts can be imputed to his knowledge by the date of the cancellation deed dated 28.04.2003. Therefore, even if the said date is taken, the suit for declaration of the said registered GPA would still be hopelessly time barred in accordance with Article 59 of the Schedule to the Limitation Act, 1963 as the prescribed period would have expired latest by 28.04.2006. The Ld. Counsel for Plaintiff has argued that the relief of possession whereby the time period being 12 years for filing the suit, would still remain and would not be time barred. However, what has to be seen is the substance and pleadings of the suit. The present suit for possession cannot be sustained without the declaration of the registered GPA being null and void. The latter relief being time barred, the suit for possession also has to be held to be time barred.
Therefore, the issues are decided against the Plaintiff and in favour of the Defendants.
Relief :
25. In view of the facts and circumstance, suit of the plaintiff is dismissed. Parties to bear their own costs.
Raj Singh vs Jasmer Singh and Ors. Page No. 63 of 64 Suit No.17212/16
26. Decree Sheet be drawn up accordingly.
27. File be consigned to Record Room after due compliance.
Digitally signed by DIVYANG DIVYANG THAKUR THAKUR Date:
2024.11.14 15:51:02 +0530 Announced in the open court (Divyang Thakur) On 14.11.2024 DJ-03/South West Dwarka / New Delhi Raj Singh vs Jasmer Singh and Ors. Page No. 64 of 64