Delhi District Court
Subhash Sharma vs Mohd. Yasin on 25 February, 2020
IN THE COURT OF BRIJESH KUMAR GARG,
ADDITIONAL DISTRICT JUDGE-1,
NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI
CS No. 476298/15
CNR No.DLNE01 0002022014
Subhash Sharma
S/o Sh. Shiv Gyan @Ram Gyan,
R/o Vill. Shahpur Brahaman,
District Agra, (U.P.).
presently at :
H.No. 468, F-Block, Gali No.16,
Chand Bagh, Delhi-110 094.
..... plaintiff
Versus
Mohd. Yasin
S/o Mohd. Yamin,
R/o F-379, Gali No.13,
Chand Bagh, Delhi-110 094.
.....defendant
Date of Institution of the present Suit : 17.02.2014
Date when the order was reserved : 10.02.2020
Date of the Judgment : 25.02.2020
Suit for Possession, Permanent Injunction & Recovery of
Damages/Mesne Profits
JUDGMENT
1. The present suit has been filed by the plaintiff, for possession, damages/mesne profits and for permanent injunction, wherein, it is stated that the plaintiff is the absolute owner of the property bearing No. F-379, Gali No.13, Chand Bagh, Delhi-94, measuring 25 sq. yards, having purchased the same from its erstwhile owner Sh. Sultan Ahmed s/o Sh. Habib Ahmed, on 08.05.2012, on the basis of the general power of attorney, agreement to sell, affidavit, Will, receipt etc., all dated 08.05.2012.
CS No.476298/15 Page 1 of 12 ADJ-01(NE), KKD, DELHI
2. It is further stated in the plaint that after purchase of the suit property, on 08.05.2012, the vacant physical possession of the property was handed over to the plaintiff by its previous owner, on 08.05.2012 and thereafter, the plaintiff appointed Sh. Shahnawaz @Sonu and Sh. Ram Bahadur Mishra, as caretaker of the suit property, as the plaintiff was a native of Agra and he was residing at house No.468, F-Block, Gali No.16, Chand Bagh, Delhi, on rent, and was working for gain, at Delhi.
3. It is further stated in the plaint that on 10.06.2012, the caretakers informed the plaintiff that they have given the first and second floor of the suit property to the defendant for his temporary residence, for a period of only 8-10 days. Caretaker Shahnawaz @Sonu informed the plaintiff that the defendant was his relative and therefore, he allowed the defendant to enter into the suit property for 8-10 days only. But, instead of vacating the suit property, the defendant filed a suit for permanent injunction against Shahnawaz @Sonu and Ram Bahadur Mishra, wherein, the plaintiff was also impleaded as defendant No.3. It is further stated that the said suit, filed by the defendant, was still pending in the court of Sh.Raghubir Singh, Sr. Civil Judge, Delhi, and was fixed for plaintiff's evidence on 23.01.2014.
4. It is further stated in the plaint that the caretaker Shahnawaz @Sonu and Ram Bahadur Mishra had never executed any rent agreement with the defendant and the defendant had filed the civil suit, on the basis of false and fabricated grounds, without any documentary evidence.
5. It is further stated in the plaint that on 16.12.2013, the plaintiff was shocked to see that the defendant and his wife have forcibly entered the CS No.476298/15 Page 2 of 12 ADJ-01(NE), KKD, DELHI ground floor portion of the property, after breaking the locks of the ground floor and have removed the household articles of the plaintiff lying there and they have not allowed the plaintiff to enter the property, despite repeated requests. It is further stated that the defendant had not opened the door of the property and had threatened the plaintiff that, in case, the plaintiff again visited the property, then he will be killed and will be implicated in a false criminal case, with the help of his wife.
6. It is further stated in the plaint that the plaintiff lodged a complaint with the SHO, PS Gokulpuri, on 20.12.2013, but, no action has been taken by the police officials against the defendant and his wife. It is further stated that the plaintiff is the absolute owner of the suit property and the defendant, along with his wife, is an illegal and unauthorized occupant of the suit property since 08.06.2012 and the caretakers have never let-out the suit property to the defendant and therefore, the defendant is also liable to pay damages to the plaintiff, @Rs.10,000/- per month, w.e.f., 08.06.2012 and accordingly, the defendant is liable to pay a sum of Rs.1,80,000/- , to the plaintiff, upto December, 2013.
7. It is further stated in the plaint that a legal notice, dated 23.12.2013, was also served on the defendant. But, despite service of the legal notice, the defendant has not handed over the vacant possession of the suit property and hence, the present suit.
Case of the defendant
8. In the written statement, the defendant has stated that the plaintiff has prepared the false and fabricated documents, in connivance with his associates Ram Bahadur Mishra and Shahnawaz @Sonu and has filed the present suit with the sole motive to oust the defendant from the suit CS No.476298/15 Page 3 of 12 ADJ-01(NE), KKD, DELHI property. It is further stated that the plaintiff is neither the owner nor the landlord of the suit property and all the title documents are false and have been fabricated by the plaintiff.
9. It is further stated in the written statement that the defendant was inducted as a tenant in the whole of the suit property by Shahnawaz @Sonu, on rent of Rs.1500/- per month, on 08.06.2012 and a sum of Rs.30,000/- was paid by him as security amount to Shahnawaz @Sonu. But, no receipt was ever executed by Shahnawaz @Son. Later on, the said Shahnawaz @Sonu and Ram Bahadur Mishra, had threatened the defendant to vacate the suit property and therefore, a suit for permanent injunction was filed by him, titled as, 'Mohd. Yaseen vs. Shahnawaz & Ors', bearing CS No.222/2012, and the same was still pending before the court of Sh.Sidharth Mathur, Ld. Sr. Civil Judge, Karkardooma Courts, Delhi.
10. It is further stated in the written statement that the defendant is in lawful possession of the suit property and the plaintiff has never remained in physical possession of the suit property and therefore, the defendant is not liable to pay any damages to the plaintiff. It has been prayed that the suit of the plaintiff may be dismissed with exemplary costs.
11. Replication to the written statement has been filed, on behalf of the plaintiff, wherein, the contents of the written statement have been denied and the contents of the plaint have been reiterated and reaffirmed.
Issues
12. From the pleadings of the parties, the following issues were framed CS No.476298/15 Page 4 of 12 ADJ-01(NE), KKD, DELHI by the Ld. Predecessor of this court, vide order dated 15.05.2014, as under :-
(1) Whether the plaintiff is entitled for decree of possession as prayed in the suit? (OPP) (2) Whether the plaintiff is entitled for decree of damages @Rs.10,000/- per month as prayed in the suit ? (OPP) (3) Whether the plaintiff is entitled for decree of permanent injunction, as prayed for ? (OPP) (4) Relief.
Evidence of the parties
13. During the trial, the plaintiff has examined himself as PW-1; his caretaker Ram Bahadur Mishra as PW-2 and caretaker Shanawaz @Sonu as PW-3. But, no witness has been examined by the defendant, during the trial, despite opportunity.
14. It is relevant to mention here that during the trial, the defendant was duly represented through his counsel and the Ld. Counsel for the defendant lastly appeared before the court on 16.08.2016 and thereafter, none has appeared on behalf of the defendant.
Final Arguments
15. After completion of trial, final arguments were addressed by Sh. Mohd. Zahid, Advocate, for the plaintiff. But, none has appeared on behalf of the defendant, even to address the final arguments. During the final arguments, the Ld. Counsel for the plaintiff has argued that the plaintiff is the owner of the suit property and the defendant is in illegal possession of the suit property and the witnesses of the plaintiff have proved the case of the plaintiff. He has further argued that the plaintiff CS No.476298/15 Page 5 of 12 ADJ-01(NE), KKD, DELHI has also proved the title documents in his favour, during the trial and therefore, the suit of the plaintiff may be decreed against the defendant.
Findings
16. I have carefully perused the case file and I have also given my considered thoughts to the arguments addressed by the Ld. counsels for the parties. My findings on the various issues are as under :
Issue No. 1Whether the plaintiff is entitled for decree of possession as prayed in the suit? (OPP)
17. Onus of proof of this issues lies on the plaintiff. In support of his contentions, the plaintiff has examined himself as PW-1 and has filed his affidavit Ex.PW1/A, wherein, he has reproduced the contents of the plaint. The site plan of the suit property has been proved on record as Ex.PW1/1, The title documents, i.e., GPA, agreement to sell, receipt, will deed, possession letter and the affidavit, all dated 08.05.2012, executed by Sultan Ahmed s/o Habib Ahmed, the previous owner of the suit property, in favour of the plaintiff, have been proved on record as Ex.PW1/2 (Colly.). The title documents, dated 22.07.1997, i.e., GPA, agreement to sell, affidavit, receipt and will, executed by Sh. Naseem Ahmad s/o Sh. Riazul Hasan, in favour of previous owner Sh. Sultan Ahmad s/o Habin Ahmad, have been proved on record as Ex.PW1/2A. The GPA, agreement to sell, receipt and deed of Will, all dated 17.06.1996, executed by Sh. Mehmood Ali s/o Haji Mohd. Haneef, in favour of Sh. Naseem Ahmad, have been proved on record as Ex.PW1/2B. The complaint, dated 19.12.2013, lodged by the plaintiff against the defendant with SHO, PS Gokulpuri, has been proved on CS No.476298/15 Page 6 of 12 ADJ-01(NE), KKD, DELHI record as Ex.PW1/4. The legal notice, dated 23.12.2013 and registry receipt, have been proved on record as Ex.PW1/5 and Ex.PW1/6, respectively. Reply sent by the defendant to the plaintiff, dated 21.01.2014, has been proved on record as Ex.PW1/7.
18. The testimony of the plaintiff also finds corroboration from the testimony of PW-2 Ram Bahadur Mishra and PW3 Shahnawaz @ Sonu. PW-2 Ram Bahadur Mishra has filed his affidavit Ex.PW2/A, wherein, it is stated that the plaintiff purchased the suit property from its erstwhile owner Sultan Ahmad and the possession of the suit property was handed over by Sultan Ahmad to the plaintiff, in his presence. It is further stated that the first and second floor of the property were handed over by the plaintiff to the defendant in his presence on 10.06.2012, for temporary residence, for 8-10 days.
19. PW-3 Shahnawaz @Sonu, the other caretaker of the property has also deposed that the suit property was purchased by the plaintiff from its erstwhile owner Sultan Ahmed s/o Sh. Habib Ahmed, vide documents, Ex.PW1/2 to Ex.PW1/2C. He has also deposed that the first and second floor of the property were given to the defendant by the plaintiff, in his presence on 10.06.2012, for temporary residence of the defendant, for 8- 10 days, as he has requested the plaintiff to provide accommodation to the defendant, as the defendant was his relative. None of these witnesses was subjected to any cross-examination, during the trial, despite opportunity and therefore, their testimonies have remained unrebutted, uncontroverted and unchallenged.
20. It has been held by the Hon'ble Supreme Court of India, in case titled as, 'Suraj Lamp And Industries Private Limited vs. State of Haryana & Anr.', reported as, '(2012) 1 Supreme Court Cases 656', as CS No.476298/15 Page 7 of 12 ADJ-01(NE), KKD, DELHI under :
"23. Therefore, an SA/GPA/Will transaction does not convey any title nor creates any interest in an immovable property. The observations by the Delhi High Court in Asha M. Jain v. Canara Bank, that the "concept of power-of-attorney sales has been recognised as a mode of transaction" when dealing with the transactions by way of SA/GPA/Will are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/Will transactions are some kind of a recognised or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognise or accept SA/GPAWill transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
24. We therefore reiterate that immovable property can be legally and lawfully transferred / conveyed only by a registered deed of conveyance. Transactions of the nature of "GPA sales" or "SA/GPA/Will transfers" do not convey title and do not amount to transfer, nor can they be recognised or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognised as deeds of title, except to the limited extent of Section 53-A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/Will transactions known as GPA sales."
(emphasis supplied)
21. It was also held by the Hon'ble High Court of Delhi, in case titled as, 'Ramesh Chand vs. Suresh Chand & Ors.', reported as, 'MANU/DE/1690/2012, as under : -
"2. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding CS No.476298/15 Page 8 of 12 ADJ-01(NE), KKD, DELHI a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will (para 14). Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will.
xxxxx xxxxx xxxxx
9. Learned counsel for the appellant finally laid great stress on paras 18 and 19 of the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) and which read as under:-
18. 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 also be used to obtain specific performance or to defend possession under Section 53A of TP 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.
19. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister, or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers.
In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations CS No.476298/15 Page 9 of 12 ADJ-01(NE), KKD, DELHI regarding "SA/GPA/WILL transactions" are not intended to apply to such bona fide/genuine transactions.
These paragraphs were relied upon in support of the proposition that by these paras the Supreme Court in fact explained its earlier observations made in paras 12, 13, 14 and 16 of its judgment and that the Supreme Court did not intend to give any rights in immovable property. In other words, the argument was that in spite of paras 12 to 16 of the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) the documents being an agreement to sell under Section 53A or a power of attorney coupled with interest or a Will cannot create rights in an immovable property. In my opinion, this argument urged on behalf of the appellant really does not convey any meaning to me inasmuch as the argument, if accepted, would mean that I am ignoring the binding observation/ratio of the Supreme Court given in paras 12 to 16 of the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. (supra).
xxxxx xxxxx xxxxx
11. In view of the aforesaid facts and the validity of the documents, being the power of attorney and the Will dated 16.5.1996, the respondent No. 1/plaintiff would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the appellant/defendant No. 1. In fact, I would go to the extent saying that by virtue of para 14 of the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) taken with the fact that Sh. Kundan Lal has already died, the respondent No. 1/plaintiff becomes an owner of the property by virtue of the registered Will dated 16.5.1996. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof. The facts of the present case show that the respondent No. 1/plaintiff has undoubtedly better entitlement/title/rights in the suit property so as to claim possession from the appellant/defendant No. 1/brother. I have already held above that the appellant/defendant No. 1 miserably failed to prove that there was any partition as alleged of the year 1973 whereby the suit property allegedly fell to the share of the appellant/defendant No. 1. In fact, the second reason for holding the appellant to be unsuccessful in establishing his plea of partition is that the appellant failed to lead any evidence as to the other two properties being the property No. 290, Ambedkar Basti, Delhi and the second property being the property adjoining the property No. 290, CS No.476298/15 Page 10 of 12 ADJ-01(NE), KKD, DELHI Ambedkar Basti, Delhi as having belonged to the father Sh. Kundan Lal. In view of the above, I do not find any merit in the appeal, which is accordingly dismissed subject to the observations made above that the respondent No. 1/plaintiff will only be entitled to possession of 50% of the suit property which is in possession of the appellant/defendant No. 1, and the rights of respondent No. 2 would remain secure with respect to the 50% share of the suit property which was purchased by the respondent No. 2/defendant No. 2 from the appellant/defendant No. 1. Parties are left to bear their own costs. Trial Court record be sent back.
(emphasis supplied by me)
22. In view of the material evidence on record, as discussed above and in view of the above pronouncements, this issue is decided in favour of the plaintiff and against the defendant.
Issue No.2 Whether the plaintiff is entitled for decree of damages @Rs.10,000/- per month as prayed in the suit ? (OPP)
23. Onus of proof of this issue also lies on the plaintiff and in support of his contentions, the plaintiff has filed his affidavit Ex.PW1/A, wherein, it is stated that the suit property may fetch a sum of Rs.10,000/- per month, if let out on rent. This testimony of the plaintiff has also remained unrebutted, uncontroverted and unchallenged. Therefore, this issue is also decided in favour of the plaintiff and against the defendant.
Issue No.3 Whether the plaintiff is entitled for decree of permanent injunction, as prayed for ? (OPP)
24. Onus of proof of this issue also lies on the plaintiff. In view of my findings on the issue No.1, as discussed above, this issue is also decided in favour of the plaintiff and against the defendant.
CS No.476298/15 Page 11 of 12 ADJ-01(NE), KKD, DELHI Relief
25. In view of my findings on the various issues, as discussed above, the suit of the plaintiffs is hereby decreed and a decree for possession, in respect of the suit property, i.e., ground floor, first floor and second floor of the property bearing No. F-379, Gali No.13, Chand Bagh, Delhi-94, measuring 25 sq. yards, as shown in red color in the site plan, Ex.PW1/A, is passed in favour of the plaintiff and against the defendant. A decree for permanent injunction is also passed in favour of the plaintiff and against the defendant, whereby, the defendant, his agents, servants, legal heirs, representatives etc. are restrained from creating any third party interest in the suit property. A decree for damages/mesne profits is also passed in favour of the plaintiff and against the defendant, @Rs.10,000/- per month, w.e.f. 08.06.2012, till the vacant physical possession of the suit property is handed over by the defendant to the plaintiff.
Costs of the suit are also awarded in favour of the plaintiff and against the defendant.
A decree be drawn accordingly.
File be consigned to record room, after due compliance.
Digitally signed by Brijesh Brijesh Kumar Garg
Location:
Kumar KARKARDOOMA
COURTS, DELHI
Garg Date: 2020.02.25
16:54:35 -0300
Announced in the open court BRIJESH KUMAR GARG
on this 25th Day of February, 2020 Addl. District Judge(NE)-01
Karkardooma Courts, Delhi.
CS No.476298/15 Page 12 of 12 ADJ-01(NE), KKD, DELHI