Delhi District Court
Shri R. Ramamurthy vs Rattan Lal on 25 February, 2008
Suit No.940 of 2006 1
IN THE COURT OF SHRI TARUN YOGESH : CIVIL JUDGE : DELHI
SUIT No. 940 OF 2006
IN THE MATTER OF:
SHRI R. RAMAMURTHY
S/o late Shri K R Aiyer
R/o A52, Batlas Apartment
43 IP Extension, Patparganj
Delhi 110092 ....Plaintiff
Versus
1. Rattan Lal
S/o Shri Chander Singh
R/o Village Kotla Mubarakpur
New Delhi
2. B.K. Nagar
S/o Shri Nand Lal Nagar
R/o Laxman Nagar, Choti Kuti
Sita Mandi, Bihar
3. Rambir Singh Malik
S/o Shri Mangat Ram
R/o D--1 Nasudpur
New Delhi
4. Ravi Sharma
S/o Shri Deep Ram
R/o Village Jaunpur
Mehrauli, New Delhi ..Defendants
DATE OF INSTITUTION OF SUIT: 22122004
DATE ON WHICH JUDGEMENT RESERVED: 25012008
DATE ON WHICH JUDGEMENT PRONOUNCED: 25022008
Suit No.940 of 2006 2
JUDGEMENT
1 Present suit for Injunction has been filed by the plaintiff against defendants no.1 to 4, wherein he has prayed for a decree of Permanent Injunction, restraining the defendants, their agents, servants, associates, etc from dispossessing him and/or interfering in any manner in his peaceful use and enjoyment of the suit property. Besides, plaintiff has also prayed for a decree of Permanent Injunction restraining defendant no.1 from executing any further document of title in respect of the suit property in favour of other defendants or in favour of any other person. Facts of the case discussed in brief are as under :
2 Plaintiff while scouting to purchase some land, came to know about defendant no.1 being the owner and in possession of land measuring 1 bigha, forming part of khasra no. 236, situated in revenue estate of village Chhatarpur, New Delhi110074(hereinafter referred to as the suit property). After ensuring that the land was free from all encumbrances, plaintiff agreed to purchase it from defendant no.1. Terms were settled between the parties which were reduced into writing in the shape of an agreement to sell and purchase. Plaintiff purchased the land on 09/10/2003 and claims to have been possession of the said land since then. Transfer documents i.e. General Power of Attorney, Agreement to Sell and Purchase, Will, Affidavit, Possession Letter and Receipt were duly executed by defendant no.1 and the General Power of Attorney and Will were got duly registered. Plaintiff claims to have become the owner in possession of the suit property after the execution of these documents and claims that after the sale, defendant no.1 was left with no right, title, interest or concern in the suit property. Plaintiff submits that the sale deed could not be executed since it was not possible, Suit No.940 of 2006 3 but, claims that the possession of the suit property along with the duly executed documents was handed over by defendant no.1 to the plaintiff and plaintiff continued in possession of the suit property since then in his capacity as the owner. Plaintiff claims that according to the provisions of the Delhi Land Reforms Act, handing over the possession of land against consideration amounts to sale and even otherwise under the provisions of the Transfer of Property Act, on the basis of Doctrine of Part Performance he has become the owner of suit property.
3 Plaintiff alleges that on account of his greed, defendant no.1 in collusion with other defendants, with the sole objective to harass him, started threatening him and tried to blackmail him. On 21/11/2004, defendants are alleged to have come at plaintiff's land and threatened to dispossess him from the suit land in case he did not pay Rs. 1,75,000/ more to defendant no.1 and when the plaintiff tried to pacify them and pointed out that the suit land had been purchased, defendants boasted of knowing ways for squeezing money and threatened to carry out their nefarious acts. Due to the timely intervention of the neighbours the situation was somehow brought under control,but, defendants left the site threatening to dispossess the plaintiff from the suit property and defendant no.1 left, saying that he would execute fresh documents of title in favour of other defendants or any other person. The matter was reported to the police but the police officials refused to lodge any report/complaint.
4 On 22/11/2004, plaintiff came to know that defendants in collusion with the Revenue Authorities (Halka Patwari) were trying to get the land recorded in their names, despite knowing fully well that after the sale of suit property and receipt of the entire consideration they could not do any such Suit No.940 of 2006 4 thing. Under these compelling circumstances, left with no other effective, alternative and efficacious remedy, except seeking court's indulgence, plaintiff has filed the present suit.
5 Plaintiff claims to have remained in possession of the suit property since its purchase against consideration and further claims that all rights attached to the land were transferred in his favour. Alleging that the threatened action of defendants was illegal and had no sanction in the eyes of law, plaintiff has prayed for the reliefs claimed through this suit.
6 Summons of the suit were sent at defendants addresses and counsels for defendants no. 1 and 4 appeared before the court and filed their POA. But, thereafter, neither their counsel nor did the defendants appear before the court. Defendants no. 2 and 3 could not be served with summons through ordinary process, so they were served through publication in the newspaper 'Statesman'. Since, despite service defendants failed to appear, so by the order dated 31/08/2005, defendants were proceeded ex parte and matter was fixed for ex parte evidence.
7 Plaintiff examined himself as PW1 and tendered his evidence by way of affidavit which is Ex PW1/A. In his evidence before the court, plaintiff deposed on same lines as averred in the plaint and besides reiterating the facts and contentions of the plaint, he exhibited and proved the following documents.
Sl. EXH.
PARTICULARS
1 EX PW1/1 Photocopy of Notorized Agreement to sell dated
09/10/2003 (OSR).
2 EX PW1/2 Photocopy of Registered Will dated 09/10/2003
Suit No.940 of 2006 5
(OSR).
3 EX PW1/3 Photocopy of Possession Letter dated 09/10/2003
(OSR).
4 EX PW1/4 Photocopy of Affidavit dated 09/10/2003 (OSR).
5 EX PW1/5 Photocopy of Receipt dated 09/10/2003 (OSR).
8 After plaintiff's evidence had been led and ex parte final arguments
were heard, an application under Section 151 read with Order 18 Rule 17, CPC was filed by the plaintiff seeking court's permission to lead additional evidence and file the registered general power of attorney which he claimed to have inadvertently missed to file along with the rest of the documents. The application was allowed on 01/09/2007 and additional evidence was led on 14/11/2007 by which the registered General Power of Attorney has been exhibited as Ex PW1/6.
9 Since, defendants did not appear to contest plaintiff's suit and did not cross examine the plaintiff, so the evidence led by plaintiff remained un rebutted and unchallenged and accordingly, is deemed to have been admitted.
10 In Shikha Properties (P) Limited v. S. Bhagwant Singh and Ors., 74 (1998) DLT 173= 1998 (46) DRJ 286, the Hon'ble Delhi High Court has held:
"cases where agreement to sell is executed with irrevocable power of attorney and full consideration having been paid would be covered by Section 202 of the Contract Act since the purchasers deal with such Suit No.940 of 2006 6 properties practically as owners for fairly long and have "interest" in it. Thus in such a case agent has a interest in property which can not be terminated to the prejudice of such interest in terms of Section 202 of the Contract Act, 1872."
11 Similarly in Kuldip Singh v. Surinder Singh, 76 (1998) DLT 236=1999 RLR 20, the Hon'ble Delhi High Court had observed :
"power of attorney sales in Delhi is the common mode of sale of immovable property to get over the legislative restrictions of transfer of properties. The power of attorney is for consideration and the bargain is followed by delivery of possession to complete the transaction. Further to prevent arbitrary cancellation, will and affidavit about renouncing rights are taken."
12 Discussing these cases along with the pronouncements of the Hon'ble Supreme Court given in S. Chattanatha Karayalar v. Central Bank of India Ltd. and Others, AIR 1965 Supreme Court 1856 and Smt. Indira Kaur and Others v. Sh Sheo Lal Kapoor, AIR 1988 Supreme Court 1074, wherein the Hon'ble Apex Court held that in order to arrive at the real nature of transaction, it is open to the court to look into the attendant and surrounding circumstances and contemporary documents (emphasis supplied), the Division Bench of the Hon'ble Delhi High Court in its decision pronounced in Asha M. Jain v. Canara Bank & Ors., 94 (2001) DLT 841 (DB) held that concept of Power of Attorney sales was recognized as a mode of transaction as these transactions are different from mere agreement to sell Suit No.940 of 2006 7 since such transactions are accompanied with other documents which included General Power of Attorney, Special Power of Attorney and Will and affidavits along with payment of full consideration.
13 In that case the Power of Attorney and Will were registered and the Hon'ble High Court observed that the existence of two contemporaneous registered documents lent authenticity to the date of execution of documents. The Hon'ble High Court accordingly, held that the Power of Attorney having been executed for consideration within the meaning of Section 202 of the Contract Act, 1872 and after the handing over of possession, an interest had been created in the property in favour of the appellant and further the application of the Provisions of Section 53 A of the Transfer of Property Act would apply to protect his possession.
14 In the present case, transfer documents dated 09/10/2003 i.e. General Power of Attorney, Agreement to Sell and Purchase, Will, Affidavit, Possession Letter and Receipt were duly executed by defendant no.1 and the General Power of Attorney and Will were got duly registered. Thus, the present case is squarely covered within the sweep of the ratio decidendi of the pronouncement of the Hon'ble Delhi High Court in Asha M. Jain v. Canara Bank & Ors., 94 (2001) DLT 841(DB), and after the execution of the documents in plaintiff's favour, an interest has been created in the suit property in his favour. After having transferred the suit property in favour of plaintiff, defendant no.1 is left with no right, title or interest in the property and hence, he can not dispossess the plaintiff from the suit property and further can not transfer it to other defendants or to any third person.
15 As plaintiff has successfully proved his case so this suit is decreed in Suit No.940 of 2006 8 plaintiff's favour and against the defendants and defendants, their agents, servants, associates, etc are permanently restrained from dispossessing plaintiff from the suit property and/or interfering in any manner in his peaceful use and enjoyment of the suit property. Defendant no.1 is also permanently restrained from executing any document of title in respect of the suit property in favour of other defendants or in favour of any other person.
16 Decree sheet be prepared accordingly and this file be consigned to the record room after due compliance.
ANNOUNCED IN OPEN COURT TARUN YOGESH ON 25022008 CIVIL JUDGE / DELHI