Delhi High Court
Chanchal Devi vs Delhi Development Authority on 28 August, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 28th August, 2018.
+ RSA 121/2018
CHANCHAL DEVI ..... Appellant
Through: Mr. Ajit Nair, Mr. Avdhesh Nuniwala
and Mr. Sachin, Advs.
Versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: None.
AND
+ RSA 122/2018
PHOOL SINGH YADAV ..... Appellant
Through: Mr. Ajit Nair, Mr. Avdhesh Nuniwala
and Mr. Sachin, Advs.
Versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CMs No.34762/2018 & 34763/2018 in RSA No.121/2018 & CMs
No.34766/2018 & 34767/2018 in RSA No.122/2018 (all for exemption)
1. Allowed, subject to just exceptions.
2. The applications are disposed of.
RSAs 121/2018 & 122/2018 Page 1 of 18
RSA 121/2018 & CM No.34761/2018 (for stay) & RSA 122/2018 & CM
No.34765/2018 (for stay)
3. These two Regular Second Appeals under Section 100 of the Code of
Civil Procedure, 1908 (CPC) impugn the judgments and decree [both dated
31st May, 2018 in RCA No.01/2017 and RCA No.56/2016, both of the Court
of Senior Civil Judge (North-West)] allowing the First Appeals under
Section 96 of the CPC preferred by the respondent Delhi Development
Authority (DDA) against the judgments and decree [both dated 17th October,
2016, in CS No.559/2014 (Case No.9578/2016) and CS No.529/2014 (Case
No.9577/2016), both of the Court of Civil Judge (West)] allowing the suits
filed by each of the appellant/plaintiff for permanent injunction restraining
the respondent/defendant DDA and Station House Officer (SHO), Police
Station Sultanpuri, Delhi from demolishing the construction of the house of
each of the appellant/plaintiff and from dispossessing each of the
appellant/plaintiff therefrom.
4. Though both the appeals arise from separate judgments in separate
suits/appeals but the nature of controversy and the arguments in both are the
same and these Regular Second Appeals have also been filed by the same
counsel and on the same grounds and proposing the same substantial
questions of law and have been argued as one. Thus, both the appeals are
decided by this common judgment.
5. The counsel for the appellants/plaintiffs has been heard and the copies
of the relevant Suit Court records annexed to the memorandums of appeal
perused.
RSAs 121/2018 & 122/2018 Page 2 of 18
6. The appellant/plaintiff in RSA No.121/2018 claimed to be the owner
of built up pakka house bearing No.18/4, measuring 50 sq. yds. forming part
of Khasra No.48/4, situated in the colony of Mange Ram Park, Budh Vihar,
Phase-II, in the area of Village Pooth Kalan, Delhi.
7. The appellant/plaintiff in RSA No.122/2018 claimed to be the owner
of built up house bearing No.40/1D, measuring 50 sq. yds. forming part of
Khasra No.47/3, situated in Gali No.3, Harsh Dev Park, Budh Vihar, Part-II,
in the area of Village Pooth Kalan, Delhi.
8. The suits were filed by each of the appellant/plaintiff to restrain the
respondent/defendant DDA and the SHO, Police Station-Sultanpuri from
causing any "further demolition/damage" to the properties aforesaid of each
of the appellant/plaintiff.
9. Each of the appellant/plaintiff claimed to be the owner of their
respective properties, not by virtue of any Sale Deed/Conveyance
Deed/Transfer Deed or allotment made by any governmental authority, but
by virtue of Agreement to Sell, Power of Attorney and Will etc. which in
Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana AIR 2012 SC 206
have been held by the Supreme Court to not constitute documents of title.
10. It was the case of each of the appellant/plaintiff that they were in
possession of their respective properties since the year 2000.
11. The respondent/defendant DDA contested the suits inter alia pleading
(i) that while the house of the appellant/plaintiff in RSA No.121/2018 was
situated in Khasra No.47/2 (and not in Khasra No.48/4), the house of the
appellant/plaintiff in RSA No.122/2018 was situated in Khasra No.47/2 (and
not in Khasra No.47/3); (ii) that the land underneath the house of each of the
RSAs 121/2018 & 122/2018 Page 3 of 18
appellant/plaintiff was acquired under the provisions of the Land Acquisition
Act, 1894 and had been placed at the disposal of the respondent/defendant
DDA and was transferred to the Rohini Residential Scheme on 2nd May,
1986; (iii) that a demolition programme to remove the encroachment made
by each of the appellant/plaintiff and others on the acquired land was
scheduled for 18th September, 2006 and encroachments removed on the said
date; (iv) that each of the appellant/plaintiff had re-encroached over the said
land; (v) that the respondent/defendant DDA was justified in removing the
encroachment; (vi) that even Khasra No.48/4 in which the appellant/plaintiff
in RSA No.121/2018 claimed his house to be and Khasra No.47/3 in which
the appellant/plaintiff in RSA No.122/2018 claimed his house to be, were
acquired vide the same Notification; and, (vii) that the appellants/plaintiffs
being encroachers, had no right to injunct the respondent/defendant DDA.
12. Both the suits were tried by the Court of the same learned Civil Judge
who framed the following issues in RSA No.121/2018 on 30th May, 2007:
"(1) Whether the plaintiff is the sole and absolute owner of the
suit property? OPP
(2) Whether the plaintiff is entitled to decree of injunction as
prayed for? OPP
(3) Whether the plaintiff has no locus standi to file the
present suit as the suit property is situated on the acquired land
vide award no.20/85-86 placed at the disposal of DDA? OPD
(4) Whether the plaintiff is seeking a decree of declaration in
the garb of permanent injunction? OPD
(5) Whether the suit is bad qua defendant no.2 for want of
statutory notice u/s. 140 DP Act and notice u/s. 80 CPC? OPD
(6) Relief."
RSAs 121/2018 & 122/2018 Page 4 of 18
and the following issues in the suit from which RSA No.122/2018
arises:
"(1) Whether the plaintiff is the sole and absolute owner of the
suit property? OPP
(2) Whether the plaintiff is entitled to decree of injunction as
prayed for? OPP
(3) Whether the plaintiff has no locus standi to file the
present suit as the suit property is situated on the acquired land
vide award no.20/85-86 placed at the disposal of DDA? OPD
(4) Whether the plaintiff is seeking a decree of declaration in
the garb of permanent injunction? OPD
(5) Whether the suit is bad qua defendant no.2 for want of
statutory notice u/s. 140 DP Act and notice u/s. 80 CPC? OPD
(6) Relief."
13. The Suit Court decided both the suits in favour of the
appellants/plaintiffs, reasoning (a) that the respondent/defendant DDA had
not placed on record the original or certified copy of the award vide which
the land was acquired, to prove that Khasra NO.48/4 and Khasra No.47/3 in
which the respective appellant/plaintiff claimed their properties to be, had
also been acquired; (b) that the possession of the appellants/plaintiffs had
been admitted by the respondent/defendant DDA; (c) that the
respondent/defendant DDA had not filed any demarcation report to prove
that the appellants/plaintiffs were occupying the land of Khasra Number
47/2, in which the respondent/defendant DDA was claiming the properties of
the appellants/plaintiffs to be; (d) that the record of demolition action carried
out on 18th September, 2006 had also been proved by a witness who was not
RSAs 121/2018 & 122/2018 Page 5 of 18
a signatory thereto and was not a participant in the demolition programme;
(e) that the description of the property where the demolition action was
carried out was given as "Near Braham Shakti Hospital, Sector-23, Rohini",
without specifically stating individual areas or the pakka structures
demolished; (f) that the counsel for the respondent/defendant DDA, in cross-
examination of the appellants/plaintiffs, had suggested that after demolition
action, the land was vacant; however in the written statements, the case was
of the appellants/plaintiffs having re-encroached, after the demolition action
on 18th September, 2006; (g) that the respondent/defendant DDA had not
pleaded or proved any FIR or complaint made against the
appellants/plaintiffs of encroachment; (h) that the appellant / plaintiff in RSA
No.121/2018, in her cross-examination, had admitted that the Khasra
Number in which the said appellant/plaintiff claimed her property to be and
the Khasra number in which the respondent/defendant DDA claimed the
properties of the appellants/plaintiffs to be, were adjacent to each other; that
the appellant / plaintiff in RSA No.122/2018, in his cross-examination had
admitted that his property was situated near the "Braham Shakti Hospital,
Sector-23, Rohini", which is the same land on which demolition was carried
out by respondent / defendant DDA on 18th September, 2006; (i) that the
action of the respondent/defendant DDA of demolition on 18th September,
2006 was unjust and arbitrary; (j) that the respondent/defendant DDA had
not led any evidence to prove that the appellants/plaintiffs were not in
peaceful possession of the properties; (k) that the respondent/defendant DDA
could not forcibly dispossess the appellants/plaintiffs from land which had
not been acquired.
RSAs 121/2018 & 122/2018 Page 6 of 18
Accordingly, the Suit Court restrained the respondent/defendant DDA
from adopting forceful means to recover possession from the
appellants/plaintiffs, without following the due process of law.
14. On First Appeals being preferred by the respondent/defendant DDA,
the First Appellate Court allowed the appeals and set aside the judgment of
the Suit Court and dismissed the suits of each of the appellant/plaintiff,
reasoning (i) that the Suit Court had erred in not following the basic law
regarding appreciation of evidence and onus of proof; (ii) that the onus was
initially on the appellants/plaintiffs to prove that their respective properties
fell and/or were situated in Khasra Numbers in which each of them claimed
their properties to be; (iii) that the onus was not on the respondent/defendant
DDA; (iv) that the Agreement to Sell, Power of Attorney, Will etc. did not
satisfy the requirement of Section 35 of the Indian Stamp Act, 1899 and
proper stamp duty as required to be paid on documents of transfer of
immoveable property, had not been paid; (v) that neither of the
appellant/plaintiff had title to the property and the Agreement to Sell, Power
of Attorney, Will etc. were inadmissible in evidence, being deficit in stamp
duty required to be paid thereon; (vi) that the appellants/plaintiffs had thus
failed to prove purchase or ownership of the properties with respect to which
each of them had filed the suit; (vii) that the counsel for the
appellants/plaintiffs, in cross-examination of the witness of the
respondent/defendant DDA, had not challenged the acquisition Notifications
proved by the said witness; (viii) that on the basis of material on record, the
respondent/defendant DDA was the owner of the land on which the
properties of the appellants/plaintiffs were situated; (ix) that possession
follows title and there cannot be any injunction against the true owner; (x)
RSAs 121/2018 & 122/2018 Page 7 of 18
that the relief of permanent injunction is an equitable relief; (xi) that the
Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (2008) 4 SCC
594 has held (a) that where a plaintiff is in lawful or peaceful possession of a
property and such possession is interfered or threatened by the defendant, a
suit for an injunction simpliciter will lie; (b) that a person in wrongful
possession is not entitled to an injunction against the rightful owner; (c) that
where the title of the plaintiff to the property is in dispute or the defendant
asserts title to the property with respect to which injunction against
dispossession is claimed, the plaintiff has to sue for declaration of title and
consequential relief of injunction; (d) that the respondent/defendant DDA in
its written statements had challenged the title claimed by the
appellants/plaintiffs and set up title in itself; (e) that the appellants/plaintiffs
were required to file a suit for declaration and injunction; (f) that declaration
is necessary, if the defendant denies the title or challenges the plaintiff's title
or raises a cloud on the title of the appellants/plaintiffs with respect to
properties qua which the suit is filed; and, (g) that only where the
respondent/defendant DDA merely denies the title of the appellant/plaintiff
and the appellant/plaintiff has in support of title placed documents on record
is the appellant/plaintiff not required to sue for declaration and a suit for
injunction is sufficient; and, (xii) that on the respondent/defendant DDA in
their written statement pleading to be the owner of the land by acquisition
and vesting in DDA, the appellants/plaintiffs were required to sue for
declaration of their title and which they had not done.
15. The counsel for the appellants/plaintiffs before me, has urged the same
arguments which prevailed with the Suit Court, i.e., of the onus being on the
respondent/defendant DDA to prove that the land underneath the properties
RSAs 121/2018 & 122/2018 Page 8 of 18
of the appellants/plaintiffs was situated in the Khasra Numbers claimed by
the respondent/defendant DDA and not in the Khasra Numbers in which
each of the appellant/plaintiff claimed their land to be situated. Rather, the
counsel for the appellants/plaintiffs has suggested that this Court should
remand the matters to the Suit Court to have the land demarcated.
16. The counsel for the appellants/plaintiffs forgets that he has approached
this Court in Regular Second Appeals, the scope whereof was
restricted/curtailed by the Amendment to the CPC of the year 1976. Now,
the High Court cannot entertain a Regular Second Appeal without recording
satisfaction that the case involves a substantial question of law. Supreme
Court recently in Surat Singh Vs. Siri Bhagwan (2018) 4 SCC 562 has held
that, once the High Court is satisfied after hearing the appellant that the
appeal involves a substantial question of law, it has to formulate the same
under Section 100(4) CPC and once substantial question of law is framed,
direction for issuance of notice to respondent along with substantial question
of law is to be issued.
17. The counsel for the appellants/plaintiffs, at this stage states that he has
proposed substantial questions of law in the memorandum of appeals.
18. However, the substantial questions of law proposed are in the form of
issues to be framed in a suit and do not qualify as substantial questions of
law. Rather, the counsel for the appellants/plaintiffs frankly admits that he
has always entertained a doubt, as to what constitutes a substantial question
of law.
19. Attention of the counsel for the appellants/plaintiffs is drawn to the
recent judgment pronounced by the undersigned in Dalip Singh Vs. Tulsi
RSAs 121/2018 & 122/2018 Page 9 of 18
Ram 2018 SCC OnLine Del 10833 where the substantial question of law has
been explained by relying on the judgments of the Supreme Court cited
therein as under:
"20. Supreme Court, in Veerayee Ammal Vs. Seeni Ammal
(2002) 1 SCC 134 held that merely because on appreciation of
evidence another view is also possible would not clothe the
High Court to assume jurisdiction on issue of fact framed by the
Trial Court by terming the question as substantial question of
law. As far back as in Sir Chunilal V. Mehta Vs. Century
Spinning and Manufacturing Co. Ltd. AIR 1962 SC 1314
reiterated in Kashmir Singh Vs. Harnam Singh (2008) 12 SCC
796, it was held that the proper test for determining whether a
question of law raised in a case is substantial, is whether it is of
general public importance or whether it directly and
substantially affects the rights of the parties and if so whether it
is an open question in the sense it is not finally settled or is not
far from difficulty or calls for discussion of alternative views; if
the question is settled by the highest Court or the general
principles to be applied in determining the question are well
settled and there is a mere question of applying those principles,
it would not be a substantial question of law. It was further held
that it is not within the domain of the High Court to investigate
the grounds on which the findings were arrived at by the last
Court of fact being the first Appellate Court. Mere appreciation
of facts, documentary evidence was held to be not raising a
question of law. Even in Santosh Hazari Vs. Purushottam
Tiwari (2001) 3 SCC 179 it was held:
"To be "substantial" a question of law must be debatable, not previously
settled by law of the land or a binding precedent, and must have a
material bearing on the decision of the case, if answered either way,
insofar as the rights of the parties before it are concerned."
RSAs 121/2018 & 122/2018 Page 10 of 18
21. Mention may also be made of Hero Vinoth Vs.
Sheshammal (2006) 5 SCC 545 holding as under:
"24. The principles relating to Section 100 CPC,
relevant for this case, may be summarised thus:-
(i) An inference of fact from the recitals or contents of a
document is a question of fact. But the legal effect of the
terms of a document is a question of law. Construction of a
document involving the application of any principle of law,
is also a question of law. Therefore, when there is
misconstruction of a document or wrong application of a
principle of law in construing a document, it gives rise to a
question of law.
(ii) The High Court should be satisfied that the case involves
a substantial question of law, and not a mere question of
law. A question of law having a material bearing on the
decision of the case (that is, a question, answer to which
affects the rights of parties to the suit) will be a substantial
question of law, if it is not covered by any specific provisions
of law or settled legal principle emerging from binding
precedents, and, involves a debatable legal issue. A
substantial question of law will also arise in a contrary
situation, where the legal position is clear, either on account
of express provisions of law or binding precedents, but the
court below has decided the matter, either ignoring or
acting contrary to such legal principle. In the second type of
cases, the substantial question of law arises not because the
law is still debatable, but because the decision rendered on a
material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere
with the concurrent findings of the courts below. But it is not
an absolute rule. Some of the well-recognized exceptions are
where (i) the courts below have ignored material evidence
RSAs 121/2018 & 122/2018 Page 11 of 18
or acted on no evidence;(ii) the courts have drawn wrong
inferences from proved facts by applying the law
erroneously; or (iii) the courts have wrongly cast the burden
of proof. When we refer to "decision based on no evidence",
it not only refers to cases where there is a total dearth of
evidence, but also refers to any case, where the evidence,
taken as a whole, is not reasonably capable of supporting
the finding.
22. Supreme Court, in Damodar Lal Vs. Sohan Devi (2016)
3 SCC 78, referring to Kulwant Kaur Vs. Gurdial Singh Mann
(2001) 4 SCC 262, Gurvachan Kaur Vs. Salikram (2010) 15
SCC 530 and S.R. Tewari Vs. Union of India (2013) 6 SCC 602
held, (a) that the First Appellate Court under Section 96 CPC is
the last Court of facts; (b) the High Court in Second Appeal
under Section 100 CPC cannot interfere with findings of fact
recorded by the First Appellate Court under Section 96 CPC; (c)
the findings of fact of First Appellate Court can be challenged in
Second Appeal on the ground that the said findings are based on
no evidence or are perverse; (d) even if the finding of fact is
wrong, that by itself will not constitute a question of law; the
wrong finding should stem out of a complete misreading of
evidence or it should be based only on conjunctures and
surmises; (e) if to a reasonable man, the conclusion on the facts
in evidence made by the Courts below is possible, there is no
perversity; (f) inadequacy of evidence or a different reading of
evidence is not perversity; (g) Code of Civil Procedure
(Amendment) Act, 1976 introduced a definite restriction on the
exercise of jurisdiction in a Second Appeal; (h) where it is found
that findings stand vitiated on wrong test and on the basis of
assumptions and conjunctures and resultantly there is an element
of perversity involved therein, will the High Court be within its
jurisdiction to deal with the issue; this is however only in the
event such a fact is brought to light explicitly; (i) the findings of
RSAs 121/2018 & 122/2018 Page 12 of 18
fact recorded by Court can be held to be perverse if the findings
have been arrived at by ignoring or excluding relevant material
or by taking into consideration irrelevant / inadmissible material
or if the findings is against the weight of evidence or if the
finding so outrageously defies logic as to suffer from vice of
irrationality; (j) however if there is some evidence on record
which is acceptable and which could be relied upon, the
conclusion would not be treated as perverse and the findings will
not be interfered with."
20. To say the least, none of the substantial questions of law proposed by
the counsel for the appellants/plaintiffs meet the test as laid down by the
Supreme Court in the aforesaid judgments.
21. As far as the first contention of the counsel for the
appellants/plaintiffs, of remanding the matters for demarcation, is concerned,
the said question would arise only if a substantial question of law is shown to
be entailed in these matters and which has not been done. The First
Appellate Court, in a very well reasoned and erudite judgment, has set aside
the judgment of the Suit Court in favour of the appellants/plaintiffs and the
counsel for the appellants/plaintiffs is unable to poke any hole therein. The
First Appellate Court, as aforesaid, has exhaustively relied on Anathula
Sudhakar supra and inspite of my repeated asking, as to which part of
Anathula Sudhakar supra relied upon by the First Appellate Court is
contrary to the said judgment, the counsel for the appellants/plaintiffs has not
been able to cite any.
22. The First Appellate Court has rightly held that the onus of the issues
framed qua Khasra Number in which the properties were situated, was on the
appellants/plaintiffs and which the appellants/plaintiffs had failed to
RSAs 121/2018 & 122/2018 Page 13 of 18
discharge. The appellants/plaintiffs, if felt a need for demarcation under the
provisions of the Delhi Land Revenue Act, 1954 to be carried out, were
required to apply therefor and have the demarcation carried out during the
pendency of the suit and/or lead evidence with respect thereto and which the
appellant/plaintiff have failed to do. The appellants/plaintiffs cannot now,
after keeping the proceedings pending for the last 12 years, seek to do what
they may have been required to do at the stage of trial in the suit. Though
the appellants/plaintiffs are in possession, but it cannot be forgotten that
Rohini Residential Scheme, for which the land was acquired, has itself been
held up and delayed for decades on account of such encroachments and the
allottees of the flats to be constructed under Rohini Residential Scheme have
been before this court in other jurisdictions, seeking a direction to the
respondent/defendant DDA to deliver the flats. The respondent/defendant
DDA, inspite of such directions, has been unable to comply therewith for
reasons of stay granted in other proceedings at the instance of encroachers
over land acquired for such development. The same has resulted in a
position, that while the encroachers as the appellants/plaintiffs are continuing
to enjoy the encroached property, the lawful allottees of flats to be
constructed thereon are left without the property for which they have
lawfully applied and waited. The purpose of the law and the Courts can
certainly not be to, in the name of sympathy or technicalities, allow a person
without lawful title to come in the way of a citizen who chooses to comply
with the law. If the Court assists such encroachers/grabbers of land, there
will be no incentive for any citizen to abide by the law and the same will
lead to anarchy.
RSAs 121/2018 & 122/2018 Page 14 of 18
23. Supreme Court also in Mandal Revenue Officer Vs. Goundla
Venkaiah (2010) 2 SCC 461 has reiterated that today the Courts are
approached by land grabbers and encroachers and time has come for the
Courts to stop rendering their shoulder and the assistance to such land
grabbers and encroachers, in the name of rule of law.
24. The only other argument urged by the counsel for the
appellants/plaintiffs is, that no notice under Section 30 of the Delhi
Development Act, 1957 was issued by the respondent/defendant DDA to the
appellants/plaintiffs.
25. The said argument has also been made as cursorily as the argument
regarding onus of proof has been made and which the counsel has been
unable to justify in law. Section 30 of the Delhi Development Act provides
for demolition of construction made or commenced in relation to
development area and in contravention of law by the owner thereof. The
provision is to permit the respondent/defendant DDA to demolish
construction by owners of the land/properties, in their property, and is not
intended to deal with the encroachers.
26. The counsel for the appellants/plaintiffs had been interrupting during
the dictation aforesaid and was directed to wait till the dictation is
completed. He now draws attention to para 17(c) of Anathula Sudhakar
supra as reported in All India Reporter, where it has been observed:
"...... Even where there are necessary pleadings and issue, if
the matter involves complicated questions of fact and law
relating to title, the court will relegate the parties to the remedy
by way of comprehensive suit for declaration of title, instead of
deciding the issue in a suit for mere injunction."
RSAs 121/2018 & 122/2018 Page 15 of 18
and contends that it was the duty of the Suit Court to relegate
the appellants / plaintiffs to a comprehensive suit and the Suit Court
having not done so, in Second Appeal, the appellants / plaintiffs should
be so relegated and their possession should be protected till decision of
such comprehensive suit.
27. There is no merit in the said contention.
28. I have referred to Suraj Lamp & Industries Pvt. Ltd. supra at the
outset only. The appellant/plaintiffs, in the plaint, claimed to be owners on
the basis of Agreement to Sell, Power of Attorney, Will etc. Though the
Division Bench of this Court in Asha M Jain Vs. Canara Bank (2001) 94
DLT 841, owing to the large scale of transfer of property by adopting the
said mode, had treated the documents as Agreement to Sell, Power of
Attorney, Will etc. as documents of title, but Supreme court in Suraj Lamp
& Industries Pvt. Ltd. supra did not approve of the same and expressly set
aside the said judgment. It is thus quite obvious that the appellants/plaintiffs,
on their own case, had no title to the property and there was thus a need for
the appellants/plaintiffs to, before seeking injunction, have their rights in the
property, of which they claimed to be in possession, declared and which the
appellants/plaintiffs did not do. This Court cannot now as aforesaid, after
the appellants/plaintiffs have kept the lis pending for 12 years, relegate the
parties to a fresh round as is being sought. The appellants/plaintiffs cannot
any more protect their possession at the cost, as aforesaid, of citizens who as
distinct from the appellants/plaintiffs, abide by the law.
29. The appeals thus do not raise any substantial question of law and are
dismissed.
RSAs 121/2018 & 122/2018 Page 16 of 18
30. The counsel for the appellants/plaintiffs at this stage makes the same
argument, as made by a large number of other advocates i.e. Suraj Lamp &
Industries Pvt. Ltd. supra is prospective. Reliance is placed on para 18 of
the judgment as reported in AIR 2012 SC 206, which is 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' have 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."
31. I have, in several other judgments, held that the aforesaid paragraph
does not make the operation of the judgment prospective or does not make
overruling of Asha M. Jain supra prospective. All that the said paragraph
holds is that the said judgment will not affect the validity of Agreement to
Sell, Power of Attorney, Will as Agreement to Sell, Power of Attorney, Will.
The judgment nowhere holds that Power of Attorneys, Wills and Agreement
to Sells of a date prior to pronouncement of the said judgment constitute
documents of title. This is quite evident from the Supreme Court observing
in the aforesaid paragraph, that it has merely reiterated the well settled
RSAs 121/2018 & 122/2018 Page 17 of 18
position that Sale Agreement, General Power of Attorney and Will
transactions are not transfers or sales.
32. The order dismissing the appeals thus stands.
RAJIV SAHAI ENDLAW, J.
AUGUST 28, 2018 Bs..
RSAs 121/2018 & 122/2018 Page 18 of 18