Delhi District Court
Rakesh Kumar vs Smt. Kalawati on 29 April, 2017
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS :
DELHI
CS NO. 620157/16 (Old No.869/16)
In re :
Rakesh Kumar
S/o Sh. Shiv Raj
R/o H. no. 334, Gali No. 7,
Village Jagatpur, P. O. Burari,
Delhi-110084. .....Plaintiff
Versus
1.Smt. Kalawati W/o Late Sh. Shyam Lal R/o H. No. 360, Gali No. 8, Village Jagatpur, Burari, Delhi-110084.
2. Rahul S/o Sh. Raj Kumar R/o H. No. 362, Gali No. 8, Village Jagatpur, Burari, Delhi-110084. .....Defendants Date of institution of present suit : 20.09.2016 Date of hearing arguments : 29.04.2017 Date of Judgment : 29.04.2017 Suit for possession and permanent injunction EX-PARTE JUDGMENT
1. Plaintiff has instituted the present suit seeking relief of possession of immovable property and permanent injunction against the defendants.
2. Brief facts of the case is that the plaintiff is the actual owner CS No. 620157/16 Rakesh Kumart vs. Kalawati & Anr. Page No. 1 of 6 of the built-up property bearing Khasra No. 1001, area measuring 50 sq. Yards, situated at Gali No. 9, Village Jagatpur, Burari, Delhi-110084.
3. It has been stated that the plaintiff purchased the above said property from the defendant no.2 on 17.10.2015 vide GPA, Agreement to Sell, Receipt, Possession Letter, Affidavit, Will etc. which was executed by the defendant no.2 in favour of the plaintiff.
4. It has been further stated that the defendant no.2 purchased the above said property from the defendant no.1 on 14.09.2014 vide GPA, Agreement to Sell, Receipt, Possession Letter, Affidavit, Will etc. which was executed by the defendant no.1 in favour of the defendant no.2.
5. It has been further stated that at the time of earnest money/bayana of the said property, the defendant no.2 told to the plaintiff that the defendant no.1 residing in the above said, which was rented out by the defendant no.2 to the defendant no.1 vide rent agreement dated 14.10.2014 and she would vacate the said property at the time of execution of the sale documents and hand over the possession.
6. It has been further stated that at the time of execution of the sale document, the plaintiff approached defendant no.2 for vacating the said property and also approached the defendant no.1 for vacation of the above said property, then the defendants assured the plaintiff that defendant no.1 and her husband would vacate the suit property within 10- 15 days because they had not been able to find the suitable accommodation.
7. It has been further stated that after 20 days the plaintiff again visited the suit property and approached the defendant no.1 for vacating CS No. 620157/16 Rakesh Kumart vs. Kalawati & Anr. Page No. 2 of 6 the suit premises then the defendant no.1 and her husband again assured the plaintiff that they would vacate the suit premises and also they would pay the rent of the suit premises, but till date they have not vacated the suit premises.
8. It has been further stated that on 04.01.2016, the husband of the defendant no.1 namely Sh. Shyam Lal expired and due to this reason plaintiff gave 1 month time to the defendants for vacating the suit premises.
9. It has been further stated that after one month the plaintiff regularly approached to the defendant no.1 for vacating the said premises and also approached to the defendant no.2 to ask the defendant no.1 for vacation of the suit premises but all in vain.
10. It has been further stated that the defendant no.1 is illegally and unlawfully occupying the suit property as she was not the tenant in the tenanted premises and no landlord or tenant relation between the plaintiff and defendant no.1 and she is now an illegal and unauthorized occupant of the same.
11. It has been further stated that the plaintiff is continuously requesting the defendants to vacate the suit property since 17.10.2015, but the defendants are avoiding the matter on one pretext or the other. The defendants is illegally and unlawfully occupying the suit property against the will and consent of the plaintiff. It has been further stated that the plaintiff was left with no other alternative and efficacious remedy but to file the present suit.
12. Notice of the suit was duly served upon the defendants. CS No. 620157/16 Rakesh Kumart vs. Kalawati & Anr. Page No. 3 of 6 However, no one appeared on behalf of the defendant no.1 despite service and as such she was proceeded against ex-parte. Ld. Counsel for defendant no.2 appeared and sought time to file written statement but no written statement was filed on behalf of defendant no.2 as well and accordingly even defendant No.2 was also proceeded against ex-parte.
13. Plaintiff examined himself as PW1. Plaintiff filed his affidavit Ex.PW-1/A in examination in chief and relied upon site plan Ex.PW-1/1, copy of electricity bill dated 09.05.2016 Ex. PW-1/2, photographs of the suit property Ex.PW-1/3, copy of GPA, Agreement to sell, affidavit, receipt, possession letter, Will all dt 17.10.2015 all in his favour Ex.PW-1/4 (colly), copy of GPA, Agreement to sell, affidavit, receipts, possession letter, Will all dated 14.9.2014 in fvour of defendant No. 2 Ex.PW-1/5 (colly), copy of GPA, Agreement to sell, affidavit, receipt, possession letter, Will all dt 03.04.2012 in favour of Smt. Kalawati (defendant no.1) Ex. PW-1/6 (colly) and copy of rent agreement dated 07.10.2014 between defendant no.2 and defendant no.1 Ex. PW-1/7 (de-exhibited and mark PW-1/7). Plaintiff did not examine any other witness.
14. Arguments heard. Record of the case perused.
15. Plaintiff has claimed ownership of the suit property on the basis of GPA, Agreement to Sell, Receipt, Affidavit, Will Ex.PW-1/4 (colly) having purchased the same from defendant No.2, who in turn had purchased the property from defendant No.1 by virtue of GPA, Agreement to Sell, Will, Affidavit, Receipt Ex.PW-1/5 (colly). Defendant has been No.1 had purchased the said property in 2012 from Sh. Mahinder Singh by virtue of GPA, Agreement to Sell, Receipt, Affidavit Ex.PW-1/6 (colly). All the aforesaid documents are notarized CS No. 620157/16 Rakesh Kumart vs. Kalawati & Anr. Page No. 4 of 6 and none of them are registered in accordance with the provisions of Indian Registration Act 1908.
16. The Registration Act and Other Related Laws (Amendment) Act 2001 which bring into force amendment in the Registration Act and Indian Stamp Act w.e.f 24.09.2001 require agreement to sell couple with possession to be compulsorily registrable with payment of stamp duty of 90% of conveyance. Hon'ble Supreme Court in Som Dev v. Ram Rati & Ors, AIR 2006 SC 3297 held that after the coming into force the Registration and Other Related Laws (Amendment) Act 2001, all documents "containing contracts to transfer for consideration in immovable property for the purpose of Section 53 A of the Transfer of Property Act shall be registered if they have been created after the commencement of sub-section 1A (of section 17) of the Transfer of Property Act." Similarly, division bench of Hon'ble Delhi High Court relying on the Som Dev (supra) in Anuj Chopra And Ors v. Vaneeta Khanna And Ors, RFA (OS) 117/2015 held that "the effect of this amendment - on joint reading of Section 17(1A), Section 49 of the Registration Act and Section 53A of the Transfer of Property Act - is that the claim to title on the basis of part performance - under Section 53 A of the Transfer of Property Act is untenable if the Agreement to Sell is unregistered".
17. Since the agreement to sell couple with possession was required to be compulsorily registrable and duly stamped as the same was admittedly executed after the commencement of the Registration And Other Related(Amendment) Act 2001 i.e. on 17.10.2015, therefore, the said document cannot be looked into in evidence being inadmissible and will also not affect the immovable property comprised therein. Although when the said agreement to sell Ex PW1/4 was being tendered in CS No. 620157/16 Rakesh Kumart vs. Kalawati & Anr. Page No. 5 of 6 evidence, same should have been impounded but it having not done so does not make the same admissible in evidence as the said document could not cross the hurdle of Section 49 of the Registration Act. It is settled proposition of law that objection qua the inadmissibility of document can be raised at any stage. Therefore, where agreement to sell is inadmissible and the Agreement to Sell executed in favour of plaintiff did not create any legal right under Section 53A and could not be considered and brought on record by virtue of Section 49 of the Registration Act, plaintiff cannot claim any title in the suit property on the basis of unregistered Agreement to Sell, GPA, Will etc. It is also a case where no stamp duty has been paid to exchequer and once a party tries to cheat exchequer nothing could be read in his favour. In view of the above plaintiff cannot be said to be purchaser at all not to speak of owner of the property.
18. Since plaintiff's documents of title is not admissible in evidence and nothing has been shown that defendant no.1 ever paid any rent or admitted plaintiff to be owner/landlord of the property, in these circumstances, plaintiff cannot be said to be owner of the property and therefore, cannot claim possession of the property.
RELIEF In view of the above reasoning, suit of the plaintiff is dismissed with no order as to cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance.
(Harish Kumar)
Announced in open Court ADJ-13(Central)/THC
(Judgment contains 06 pages) Delhi/29.04.2017
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