Delhi District Court
Shri Manmohan Krishan vs Shri Rajiv Chopra on 23 July, 2007
1
IN THE COURT OF SH. J.P. NARAIN, CIVIL JUDGE : DELHI
SUIT NO.594/06
SHRI MANMOHAN KRISHAN
Plaintiff.
Versus
SHRI RAJIV CHOPRA
Defendant.
ORDER :
By this order, I shall dispose off an application U/o 22 Rule 10 CPC filed by applicant Jasbir Kaur. The present suit seeking a decree of permanent injunction was filed by one Sh. Manmohan Krishan claiming himself to be a lawful tenant in the suit premises bearing No.K-16 and K-17. Now applicant Jasbir Kaur wants her impleadment as plaintiff. The case of the applicant Jasbir Kaur is that applicant Jasbir Kaur has entered into an agreement for purchase of 1200 sq. yds. Known as K-16, Hauz Khas Enclave situated in Khasra No.569/297, situated in Village Kherara from Sh. Mirazuddin and Arshad by way of registered GPA, SPA and agreement to sell. Alongwith the application, applicant has filed the photocopy of the registered GPA, SPA and unregistered agreement to 2 sell. The applicant has claimed that she has purchased the property and she is the owner of the property and is in continuous possession for a valuable consideration.
2. Counsel for the defendant has submitted that the present application U/o 22 Rule 10 CPC is without any merit and counsel for the applicant was representing the plaintiff since the institution of the suit. Ld. Counsel has submitted that he does not want to file reply to this application and has submitted that the present application has been moved to delay the trial. Ld. Counsel for DDA has further submitted that an immovable property cannot be transferred by way of unregistered documents. Ld. Counsel has submitted that the property has been acquired by the Union of India and by way of unregistered agreement to sell property cannot be transferred and there is no assignment, creation or devolution of any interest and therefore the application is bound to be rejected. On the other hand, counsel for the applicant has submitted that applicant do not want to delay the trial and applicant do not want to lead any evidence and the applicant only want her substitution qua plot No.K-16. Ld. Counsel has submitted that property has devolved upon the applicant by way of agreement to sell and GPA and SPA and therefore applicant is entitled for impleadment as party.
33. I have perused the contents of the agreement to sell and purchase and same clearly shows the consideration amount paid by the applicant and in the agreement to sell it is also mentioned that possession of the land was handed over to applicant Jasbir Kaur.
4. Sale of immovable property has been defined in Section 54 of Transfer of Property Act. Section 54 of the transfer of property Act reads as follows:
'Sale' defined-'Sale' is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made-Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale-A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled 4 between the parties.
It does not, of itself, create any interest in or charge on such property.
5. From the bare reading of Section 54 it becomes clear that a contract of sale of immovable property does not, of itself, create any interest in or charge on such property.
6. Section 53A of Transfer of Property Act deals with part performance and same reads as follows:
Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner 5 prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
7. Section 17(1-A) of Registration Act reads as follows:
The documents containing contracts to transfer for consideration, any movable property for the purpose of Sec. 53-A of the Transfer of Property Act, 1882, shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001, and if such documents are not registered on or after such commencement then, they shall have no effect for the purposes of the said Sec.53-A.
8. Section 49 of the Registration Act deals with the effect of non registration of the documents required to be registered. It 6 provides as follows:
No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall-
(a) affect any immoveable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting unless it has been registered:
Provided that an unregistered document affecting immoveable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument.
9. From the bare reading of contents of agreement to sell filed by the applicant it becomes clear that not only the consideration was paid but the possession was also handed over and same amounts to part performance of the contract and transfer of the interest and the document is unregistered document and same is hit by Section 17(1-A) and Section 49 of the Registration Act and therefore agreement to sell cannot be looked into and in absence of the agreement to sell there is only GPA and SPA in favour of the applicant 7 and by way of GPA and SPA plaintiff cannot become owner of the property. Otherwise also the contract of sale does not create any interest in the property as per Section 54 of the Act and therefore the application is without any merit. It is also to be borne in mind that in the present case the plaintiff was represented by counsel Sh. Tiger Singh, husband of the applicant since the beginning of the case and therefore the applicant was aware of the pendancy of the suit and applicant never appeared before the court prior to moving this application and never sought impleadment as party.
10. I am of the considered opinion that the suit property bearing No.K-16 is part of the acquired land and from the judgment of the Hon'ble Supreme Court it is clear that acquisition has been finalised by the Hon'ble Supreme Court of India in the year 1988. The present applicant is claiming devolution of property on the basis of GPA and SPA and agreement to sell executed in the year 1994. The agreement to sell filed by the applicant is unregistered and as per Section 17(1-A) of Registration Act same does not create any interest in the suit property. The agreement to sell filed by the applicant is also hit by Section 49 of the Indian Registration Act and therefore same cannot be considered and looked into for deciding the alleged devolution of interest in the suit property bearing No.K-16 and 8 therefore I did not find it a fit case for granting the leave to the applicant for impleadment in place of plaintiff qua property No.K-16. The application is not only barred by limitation but is also without any merit and hence rejected.
(J.P. NARAIN) CIVIL JUDGE/DELHI.
ANNOUNCED IN OPEN COURT ON 23.07.2007.