Delhi District Court
Smt. Pushpa Devi vs Sh. Rahul Garg on 24 May, 2019
IN THE COURT OF MS. GEETANJALI: SENIOR CIVIL JUDGE :
RENT CONTROLLER, KARKARDOOMA COURTS (SHAHDARA)
Suit No. 8684/16
Smt. Pushpa Devi
w/o Sh. Mahender Singh
r/o A94/96, Milan Garden,
Sewa Dham Road, Mandoli,
Shahdara, Delhi110093.
.....Plaintiff.
VERSUS
Sh. Rahul Garg
S/o Sh. Surender Kumar.
R/o A94/96, Milan Garden,
Sewa Dham Road, Mandoli,
Shahdara, Delhi110093.
..... Defendant.
Date of institution of the suit : 07.07.2014
Date on which order was reserved : 24.05.2019
Date of decision : 24.05.2019
SUIT FOR MANDATORY AND PERMANENT INJUNCTION.
JUDGMENT
1. Vide this judgment, I intend to dispose off the suit for mandatory and permanent injunction.
2. The factual matrix of the case is that plaintiff is the owner and in possession of property bearing no. A94/96, measuring 167 sq. yards out of khasra no. 2/17, situated in the abadi of Milan Garden, Sewa Dham Road, in village Mandoli, Illaqa Shahdara, Delhi110093 New Case No. 8684/16 Page No. 1/9 (hereinafter referred to as 'suit property'). He had allowed defendant, being his close relative, to reside in one room with common latrine and bathroom on the first floor of the suit property (hereinafter referred to 'demised premises' as shown in red colour in the site plan) in the year 2009 as licencee. With the passage of time, defendant got married and had one child while residing in the demised premise. However the acts and conduct of defendant became intolerable with time and accordingly plaintiff asked him to vacate the demised premises. Seeing that defendant was not vacating the demised premises, he terminated his licence vide notice dated 16.01.2013. Since defendant is not vacating the demised premises, the present suit has been filed.
3. Defendant has filed detailed written statement taking preliminary objection to the effect that plaintiff is not the owner of the suit property and his documents are forged and fabricated; that the suit property is not at all in existence since defendant is residing on the first floor of property bearing no. 96, as apparent from the GPA dated 03.12.2002; that the suit property was purchased from the funds received from selling the ancestral property situated in village Chirodi, Mandi District Ghaziabad, UP; that defendant is not residing as licencee but as co owner.
In reply on merits all the remaining averments have been specifically denied and it has been prayed that present suit be dismissed.
4. Plaintiff has filed replication to the written statement of defendant thereby reaffirming and reiterating the contents of plaint and denying New Case No. 8684/16 Page No. 2/9 the contents of written statement.
5. From the pleadings of the parties, following issues were framed vide order dated 22.03.2016.
(1) Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for ? OPP (2) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? OPP (3) Whether the defendant is co owner of the suit property ? OPD (4) Relief.
Thereafter matter was fixed for plaintiff's evidence.
6. In plaintiff's evidence, plaintiff has examined two witnesses. She has examined herself as PW1 and has tendered her evidence by way of affidavit wherein she has reiterated the entire contents of plaint which is Ex. PW1/A. She has relied upon the documents i.e. GPA Ex. PW1/1, agreement to sell Ex. PW1/2, receipt Ex. PW1/3, deed of Will Ex. PW1/4, legal notice dated 16.01.2013 Ex. PW1/5, site plan Ex. PW1/6, postal receipts Ex. PW1/7 and Ex. PW1/8, returned AD card Ex. PW1/9 and photographs of suit property Ex. PW1/10 (colly). She was extensively cross examined by Ld. Counsel for defendant.
Sh. Surender Kumar was examined as PW2. He has tendered his evidence by way of affidavit wherein he has reiterated the entire contents of plaint which is Ex. PW2/A. He has relied upon the documents already exhibited by plaintiff Ex. PW1/1 to Ex. PW1/4. He was extensively cross examined by Ld. Counsel for defendant. Thereafter, matter was fixed for DE.
New Case No. 8684/16 Page No. 3/97. In defence evidence, defendant examined himself as DW1. He has tendered his evidence by way of affidavit wherein he has reiterated the entire contents of written statement which is Ex. DW1/A. He has relied upon the documents i.e. copies of election I card, Adhar card, copy of bank passbook and RC of vehicle, Ex. DW1/1 (colly containing five pages), voter I card, Adhar card, driving licence, bank passbook of Sybdicate Bank of Smt. Priyanka Aggarwal Ex. DW1/2 (colly containing five pages), voter I card of Smt. Kamlesh Devi Ex. DW1/3, school identity card and Adhar card of Master Aryan Aggarwal Ex. DW1/4 (colly containing two pages), school identity card and Adhar card of Ms. Anushka Ex. DW1/5 (colly containing two pages). He was cross examined by Ld. counsel for plaintiff at length.
8. I have heard Ld. Counsel for both the parties and gone through the record.
9. My issue wise findings are as under: Issue No.1 and 2.
Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for ? OPP Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? OPP
10. Both the issues are taken up together as the same are interlinked and finding on one will have bearing on the other. The burden to prove these issues was placed upon the plaintiff.
11. The case of the plaintiff is that he is the absolute owner of the suit property and defendant is his licensee in the demised premise. Plaintiff New Case No. 8684/16 Page No. 4/9 has examined herself as PW1 wherein she has specifically deposed that she is the absolute owner of suit property vide GPA, agreement to sell, receipt and Will all dated 03.12.2002 Ex. PW1/1 to Ex. PW1/4. The said documents are speaking about plot no. A94, out of khasra no. 2/17, Milan Garden, village Mandoli, Ilaqa Shahdara, Delhi110093 whereas plaintiff has claimed possession of one room in property no. A 94/96, measuring 167 sq. yards out of khasra no. 2/17, situated in the abadi of Milan Garden, Sewa Dham Road, in village Mandoli, Illaqa Shahdara, Delhi110093 and she has failed to connect both the properties. In view of the same, the documents relied by her fails to inspire confidence.
Secondly, all the said documents are unregistered. Section 17 of Registration Act, 1908 makes a deed of conveyance compulsorily remittable. For the sake of convenience, the relevant portion of Section 17 of the Registration Act is extracted below : Section 17 (1) The following documents shall be registered, namely:
(a) ......
(b) other nontestamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) nontestamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; xxxxxx (1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose New Case No. 8684/16 Page No. 5/9 of Section 53 A of the Transfer of Property Act, 1882 (4 of 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, they, they shall have no effect for the purposes of the said Section 53 A. Section 17 of the Registration Act clearly provides that any document (other than testamentary instrument) which purports or operates to create, declare, assign, limit or extinguish whether in present or in future "any right, title or interest" whether vested or contingent of the value of Rs.100 and upwards to or in immovable property to be compulsorily registered. Section 49 of the said Act provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it has been registered. Reliance is placed upon judgment passed by Hon'ble Supreme Court in Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Anr. 2011.
12. Further, the documents relied by the plaintiff in support of her ownership and possession are GPA, agreement to sell, Will etc. However Section 54 of the Transfer of Property Act makes it clear that an agreement of sale does not, of itself, create any interest in or charge on such property. The Hon'ble Supreme Court in Narandas Karsondas Vs. S.A. Kamtam and Anr. 1977 3 SCC 247 observed that "a contract of sale does not of itself create any interest in, or charge on, the New Case No. 8684/16 Page No. 6/9 property". In India, the word 'transfer' is defined with reference o the word 'convey'. The word 'conveys' in Section 5 of Transfer of Property Act is used in the wider sense of conveying ownership.... that only on execution of conveyance ownership passes from one party to another.
13. Coming to the scope of power of attorney, "a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him. It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee". Reliance is placed the judgment passed by Hon'ble Supreme Court in the matter titled as Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Anr., SLP (C) No. 13917/2009.
14. Coming to the scope of Will, "a will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivo. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the lifetime of testator. It is said that so long as the testator is alive, a will is not be worth the paper on which it is written, as the testator can at any time revoke it. If the testator who is not married, marries after making the will, by operation of law, the will stands revoked (see Section 69 and 70 of Indian Succession Act 1925.
New Case No. 8684/16 Page No. 7/9Reliance is placed the judgment passed by Hon'ble Supreme Court in the matter titled as Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Anr., SLP (C) No. 13917/2009. However in the present case the testator i.e. Sh. Surender Kumar is still alive and hence the Will is of no consequence.
15. It is thus clear that a transfer of immovable property by way of sale can only be made by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. Reliance is placed on the judgment titled as Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Anr., SLP (C) No. 13917/2009.
16. In the present case, plaintiff has relied upon the GPA/Will/agreement to sell to prove her claim over the suit property and in view of the aforesaid discussion it is hereby held that the documents relied by the plaintiff does not convey any title nor create any trust in an immovable property since such transaction cannot be treated as completed transfers for conveyances. Further plaintiff has not taken any steps to regularize the said transaction. Fourthly, plaintiff has not filed any chain documents in support of her title in order to presume their genuineness.
17. In view of the aforesaid discussion, both the issues are decided against the plaintiff.
New Case No. 8684/16 Page No. 8/9Issue No.3.
Whether the defendant is co owner of the suit property ? OPD
18. The burden to prove this issue was placed upon the defendant. However during the course of arguments, this issue was dropped by Ld. Counsel for defendant vide order dated 24.05.2019. RELIEF
19. In view of aforesaid discussion, suit of the plaintiff is hereby dismissed. Decree sheet be prepared accordingly. File be consigned to record room.
Typed to the dictation directly (Geetanjali) corrected and pronounced in SCJ/RC (Shahdara) the open court on this 24th day Karkardooma Courts, of May, 2019. Delhi/24.05.2019 Digitally signed by GEETANJALI Location: North GEETANJALI East District, KKD Delhi Date: 2019.05.25 16:17:15 +0530 New Case No. 8684/16 Page No. 9/9