Delhi District Court
P. L. Jain vs Virender Kumar on 14 October, 2013
In the Court of Dr. Rakesh Kumar : Additional Senior Civil Judge of
Central District at Tis Hazari Courts, Delhi
RCA No. 18/2008
Unique I.D. No. 02401C0714632008
In the matter of:
P. L. Jain
Son of R. L. Jain
Sole Proprietor
M/s Sangam Engineering Works,
R/o U9, Green Park, Extension,
New Delhi110016. .......Appellant
Versus
Virender Kumar
Proprietor
M/s Acma Auto Industries
Plot No. 8, Cement Road,
Anand Parbat, Industrial Area,
New Delhi ........Respondent
Date of Institution : 12.05.2008
Reserved for Judgment : 14.10.2013
Date of Decision : 14.10.2013
Appeal against Judgment and Decree dated 31.03.2008
passed by
Sh. Tarun Yogesh, Civil Judge
, Central District, Delhi
J U D G M E N T
1. This appeal under Section 96 of the Code of Civil Procedure 1908 (in short 'the CPC') is directed against the judgment and decree dated 31.03.2008 passed by the court of Sh. Tarun Yogesh, RCA No. 18/2008 Page 1/11 Civil Judge, Delhi in Suit no. 279 of 2004 whereby the suit for mandatory injunction and perpetual injunction instituted by the plaintiff against the defendant was dismissed.
2. Brief facts for the decision in the appeal are that appellant P. L. Jain (hereinafter referred to as 'the plaintiff') has instituted a suit against respondent Virender Kumar (hereinafter referred to as 'the defendant') seeking mandatory and perpetual injunction against the respondent (the defendant before the Trial Court) for directing the defendant to restore the possession of the portion shown in red colour in the site plan as AnnexureA of plot no. 8, Cement Road, Anand Parbat, Industrial Area, New Delhi (hereinafter referred to as 'the suit property') and for restraining the defendant from selling, alienating, transferring or creating any third party interest in the suit property. It is averred in the plaint that Shri Ramjas foundation (hereinafter referred to as the society), a society registered under the Societies Act is the owner in respect of estate known as A. P. Estate, Karol Bagh, New Delhi; that out of the said Estate, the society inducted M/s Sangam Engineering Works, a partnership concern having at that time three partners, S. K. Jain, Sudha Jain and the plaintiff as licensee; that the said partnership firm stood dissolved and the plaintiff became entitled to the suit property; that the plaintiff was in need of money and out of the said Estate allowed the defendant the use of part of said plot measuring 45 sq. yards; that the defendant in order to safeguard his interest got signed various documents showing the same as a sale purchase transaction; that RCA No. 18/2008 Page 2/11 the plaintiff is a licensee and the defendant was permitted as a licensee of the plaintiff; that the plaintiff has allowed the use of land for purposes of the defendant and the defendant wants to further induct some third party in the land; that the alleged Agreement to Sell etc. got executed are illegal and void and hence this suit.
3. In the written statement filed on behalf of the defendant, it is contended that the plaintiff has already transferred the suit property in favour of the defendant against the consideration amount of Rs. 25,000/ on 05.12.1990 and the plaintiff has already executed G. P. A, Receipt, Agreement to Sell, Affidavit and Will dated 05.12.1990 and also transferred the physical, peaceful and vacant possession of the suit property to the defendant. It is denied by the defendant that the plaintiff himself is a licensee and the defendant is permitted by the plaintiff as a licensee as alleged. Other allegations have been denied by the respondents and prayed for dismissal of suit.
4. From the pleadings of the parties, following issues were framed by the learned Trial Court on 01.11.2004 for trial, namely: 1 Whether the plaintiff is entitled for the decree of mandatory injunction as prayed for? OPP 2 Whether the plaintiff is entitled for the decree of perpetual injunction as prayed for? OPP 3 Relief
5. Thereafter, an application under Order VII rule 11 the CPC made on behalf the defendant was allowed and the suit of the RCA No. 18/2008 Page 3/11 plaintiff was dismissed vide order dated 31.03.2008. Against the said order, the plaintiff preferred the present appeal.
6. I have heard Mr. Vijay Tandon, Advocate for the appellant and have gone through the trial court record. None appeared on behalf of the respondent for addressing arguments on the appeal.
7. Having drawn my attention on the impugned order, memorandum of appeal and the pleadings filed on behalf of parties, it is submitted by the learned counsel for the appellant that the suit could not have been dismissed under Order VII rule 11 the CPC. It is further submitted that the documents executed by the plaintiff do not create any right, title or interest in favour of the defendant.
8. I have given my thoughtful consideration on the submissions made on behalf of the appellant.
9. The learned Trial Court after hearing arguments on the application under Order VII Rule 11 CPC dismissed the suit on 31.03.2008. The relevant portion of the order of the learned Trial Court reads as under : "In the present case, by the licence deed dated 05.11.1982, a licence was created in favour of M/s Sangam Engineering Works of which plaintiff Sh. P. L. Jain was a partner. As per para 2 sub para (iii), the licencee was directed not to allow the use of the land given or any part thereof any any one and was restrained from entering into any new partnership with anyone. However, the plaintiff has violated the terms and conditions of the licence deed and as such in view of para no. 6 of the licence deed the Ramjas Foundation is entitled to terminate his licence without giving him any notice. Being a mere licence plaintiff had no claim or interest in the suit property and he could not have transferred any interest in the suit property in favour of the defendant.
RCA No. 18/2008 Page 4/11Though the present suit the plaintiff is seeking equitable relief by directing the defendant to hand over the possession of the suit property to him and by restraining the defendant from selling, alienating, transferring or creating any third party interest in the suit property, however, plaintiff has brought defendant in the suit property without having any authority to allow any third party to use and occupy the suit property. The relief claimed through this suit being in the nature of equitable relief and plaintiff himself having contravened the terms of the licence deed is not claim any equitable relief from the court. It has been held in number of cases that a person seeking an equitable relief should approach the court with clean hands. It is trite law that one who seeks equity should himself do equity. Plaintiff being a licencee had been granted permission to use the suit property and was restrained from allowing its use by any third party and from entering into any partnership with any third party, however, he has willfully entered in to a sublicence with the defendant and handed over possession of 45 sq. yards of plot no. 8, Cement Road, Anand Parvat Industrial Area, New Delhi without having any authority. Having infringed to the equitable reliefs which he is claiming through this suit.
Moreover, in para 11 of the plaint, plaintiff himself has admitted of having executed the transfer documents but he simply claims that the documents are illegal and void without seeking a declaration to that effect. Having himself executed the documents plaintiff cannot be allowed to seek reliefs of mandatory and permanent injunction without getting the documents declared null and void. As such even otherwise his suit is barred by Section 41 (h) of the Specific Relief Act.
Section 41. Injunction when refusedAn injunction cannot be granted '(h) When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust.' Accordingly, in view of the facts and circumstances of the case and the legal provisions discussed above, plaintiff's suit is liable to be dismissed on the basis of the admission made by him in his plaint. Being a mere licence having no interest in the suit property, plaintiff cannot seek the reliefs prayed through the documents executed by him were illegal and void, the suit is not maintainable in view of Section 41 (h) of the Specific Relief Act, 1963. Accordingly, on the basis of the admissions made in plaint plaintiff being a mere licence has no locus standi to file the present suit and his suit is liable to be dismissed. Thus, defendant's application under Order 7 Rule 11 is allowed and the plaintiff's suit is dismissed"
10. The only point for consideration is whether the learned Trial Court erred in dismissing the suit and therefore, the judgment and decree passed by the learned Trial Court are liable to be reversed.
11. At the outset, I may hold that the learned Trial Court in exercise of powers under Order VII Rule 11 CPC dismissed the suit which could not have been done. Law is well settled that rejection RCA No. 18/2008 Page 5/11 of plaint and dismissal of suit are two distinct things. In exercise of power under Order VII Rule 11 CPC, the plaint can be rejected if the application satisfies any of the clauses (a) to ( f ) of Rule 11 of clause of Order VII CPC, but the suit cannot be dismissed under these provisions.
12. In the impugned order, it has been held by the learned Trial Court that being a mere licensee the plaintiff had no claim or interest in the suit property and he could not have transferred any interest in the suit property in favour of the defendant. The learned Trial Court also opined that the plaintiff, being a licensee, had been granted permission to use the suit property and was restrained from allowing its use by the third party and from entering into any partnership with the third party, however he has willfully entered in to a sublicence with the defendant and handed over possession of 45 sq. yards without any valid authority, so he is not entitled to the equitable relief of injunction. The abovesaid findings given by the learned Trial Court are not sustainable in law for the reasons that the learned Trial Court dismissed the suit as if it is a suit between the licensee and the lessor. But, in fact, position in the present case is different. It is not in dispute that the plaintiff is a licensee in respect of the suit property which was granted by M/s Ramjas Foundation to him. The claim of the plaintiff is that he had allowed the defendant to use the suit property. Admittedly, the plaintiff has executed some documents like General Power of Attorney, Receipt, Agreement to Sell, Affidavit and Will dated 05.12.1990.RCA No. 18/2008 Page 6/11
13. It is settled position of law that one cannot pass a better title than he himself have as enunciated by the doctrine of Nemo dat quid non habet (no one gives what he has not got); and Nemo plus juris tribuit quam ipse habet (no one can bestow or grant a greater right, or a better title than he has himself ). The plaintiff was himself a licensee, so he could not have transferred any better title in respect of the suit upon the defendants.
14. It is also well settled law that by execution of Agreement to Sell and General Power of Attorney etc. no right, title or interest can be conferred. It has been held by the Hon'ble High Court of Delhi in G.Ram v. Delhi Development Authority, AIR 2003 Delhi 120 as follows: "An agreement of sale is not a document of transfer nor by reason of execution of a power of attorney, the right, title or interest of an immovable property can be transferred. Such a transfer can only be effected by executing a registered document as provided for under section 54 of the Transfer of Property Act read with section 17 of the Indian Registration Act."
15. Similar view has also been taken by the Hon'ble Delhi High Court in M.L. Aggarwal v. Oriental Bank of Commerce and others, 128(2006) DLT 407(DB). Relevant portion of the judgment reads thus:
7. The petitioner had only produced an Agreement to Sell, Will and a Power of Attorney and a receipt for payment of money but these, in our opinion, do not constitute a sale. Under section 17(1)(b) of the registration Act, sale of an immovable property can only be by a registered deed.
11. In our opinion, the petitioner has no right, title or interest in the property as he has not purchased it by any registered Sale Deed. An immovable property cannot be purchased by a mere Power of Attorney or Agreement to sell.
RCA No. 18/2008 Page 7/1116. The law laid down in G.Ram's case (supra) and M.L. Aggarwal's case (supra) has been reemphasized by the Hon'ble Supreme Court in Suraj Lamp and Industries Private Limited v. State of Haryana and Another, (2012) 1 SCC 656 declaring clearly the scope of agreement for sale as follows:
"Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam and Anr. (1977) 3 SCC 247, observed:
A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein." In India, the word 'transfer' is defined with reference to the word 'convey'. The word 'conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership... ...that only on execution of conveyance ownership passes from one party to another...."
17. The Hon'ble Supreme Court in Suraj Lamp's case (supra) further explained the scope of power of attorney which is as follows:
"A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan vs. Basant Nehata - 2005 (12) SCC 77, this Court held :
A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the PowersofAttorney Act is valid. A power of attorney, we have RCA No. 18/2008 Page 8/11 noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the guarantor."
18. In the light of law clearly declared by the Hon'ble Supreme Court in Suraj Lamp's case(supra) a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property and a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property.
19. The findings of the learned Trial Court that the plaintiff being a licensee is not entitled to any relief are not sustainable at law. The relationship between the plaintiff and the defendant per se is not disputed. Although the plaintiff is a mere licensee but certainly, he can seek the relief against the defendant who was put into possession by the plaintiff himself. The findings of the learned Trial Court are also not sustainable on the ground that the plaintiff was a mere licensee of M/s Ramjas Foundation and he cannot seek relief as he has violated the terms of licensee. As observed earlier, this is not a suit between the licensee and lessor. If these findings are upheld, the defendant who has no right to stay in the suit property will be allowed to stay in the suit property without any fault of the M/s Ramjas Foundation. Had it been a suit by M/s Ramjas RCA No. 18/2008 Page 9/11 Foundation against the plaintiff or by the plaintiff against M/s Ramjas Foundation, the findings would have been applicable, but these findings are not applicable to the case between the plaintiff as a licensee and the defendant who was put into possession by the plaintiff.
20. The learned Trial Court has also opined that without getting the documents executed by the plaintiff declared null and void the plaintiff cannot seek the relief of injunction. As I have already observed the execution of G. P. A. , Agreement to Sell etc. has not conferred any right, title or interest in the suit property upon the defendant, so execution of these documents is of no consequences, more particularly, in the light of admitted facts that the plaintiff was mere a licensee and he could not have transferred the suit property to anyone. Therefore, I am of the clear view that there is no need to seek declaration of these documents as null and void.
21. For the abovestated discussions, I am of the considered opinion that the judgment and decree dated 31.03.2008 passed by the learned Trial Court is not sustainable in law. The appeal is allowed. The judgment is set aside and the case is remanded to the learned Trial Court/ Successor Court to decide the matter as per law.
RCA No. 18/2008 Page 10/1122. Appeal file be consigned to Record Room. The trial court record be send back along with copy of the judgment. The parties are directed to appear before the learned Civil Judge on 22.10.2013 at 10.00 am.
Announced in the Open Court on 14.10.2013 (Dr. Rakesh Kumar) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi RCA No. 18/2008 Page 11/11