Delhi District Court
Noshad vs Hasan Mohammed on 1 September, 2023
IN THE COURT OF V. K. BANSAL,
PRINCIPAL DISTRICT AND SESSIONS JUDGE,
NORTH-EAST, KARKARDOOMA COURTS, DELHI.
RCA DJ No.13/2022
CNR No.DLNE01-001733-2022
In the matter of:
Noshad
S/o Mr. Husan Ali
R/o A-106, Street No.5,
Near Akbari Masjid,
Guru Nanak Nagar,
Mustafabad, Delhi-110094. ..........Appellant
Versus
1. Hasan Mohammed
S/o Sh. Mehboob Khan
R/o 5-B/21-F,
Gali Number 4, Gurudwara Mohalla,
Mouj Pur, Delhi-110053.
&
2. Shamshad Malik
S/o Sh. Hussain Ali
R/o A-106, Street No.5,
Guru Nanak Nagar, Mustafabad,
Delhi-110094. ........Respondents
Date of registration of appeal: 06.06.2022
Date when appeal was received by this Court: 08.06.2022
Date of conclusion of arguments: 21.08.2023
Date of pronouncement of order: 01.09.2023
ORDER:
1. The present appeal is preferred under Section 96 of CPC VIRENDER KUMAR challenging the judgment and decree dated 07.01.2023, whereby BANSAL Digitally signed suit filed by Hasan Mohd. (hereinafter referred to as by VIRENDER KUMAR BANSAL Date: 2023.09.01 plaintiff/respondent no.1) was decreed and Shamshad Malik 17:26:31 +0530 (hereinafter referred to as defendant/respondent no.2) was RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 1/39 directed to vacate the built up property no. A-182, part of the Khasra No. 1/2, Village Ziauddinpur, Gali No.5, Guru Nanak Nagar, Mustafabad, Shahdara, Delhi-94 (hereinafter referred to as suit property). The defendant/respondent no.2, his agents, his attorneys etc. are restrained from selling, transferring or creating third party interest in the suit property and the defendant/respondent no. 2 was also directed to pay user and occupation charges/damages at the rate of Rs.7,000/- per month from the date of filing of the suit till the suit property is handed over back to the plaintiff/respondent no. 1.
2. The brief facts giving rise to the filing of the present appeal are that plaintiff/respondent no.1 filed the suit for mandatory and permanent injunction with consequential relief for mesne profits and future damages against defendant/respondent no.2 alleging that plaintiff/respondent no. 1 is the lawful owner and is in use and occupation of built up suit property. The plaintiff/respondent no. 1 purchased the suit property from the defendant/respondent no. 2 on 01.01.2018 through General Power of Attorney, Agreement to Sell, Affidavit, Receipt, Possession Letter and Will, all dated 01.10.2018. The physical and vacant possession of the suit property was handed over by the defendant/respondent no. 2 to the plaintiff/respondent no. 1 on 01.01.2018.
3. After gap of 25 days i.e. on 25.01.2018, the defendant/respondent no. 2 requested the plaintiff/respondent no. 1 that he could not find some suitable accommodation on rent or otherwise and requested that he may be allowed for a short stay VIRENDER KUMAR in the property in dispute, so that he can manage any suitable BANSAL accommodation. Keeping in view the request, the Digitally signed by VIRENDER KUMAR BANSAL plaintiff/respondent no. 1 allowed him to stay in the property as Date: 2023.09.01 17:26:39 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 2/39 licensee.
4. After one week, the plaintiff/respondent no. 1 requested the defendant/respondent no. 2 to vacate the suit property and handover the vacant and peaceful possession of the same, but he avoided the same on one pretext or the other. Plaintiff/respondent no. 1 also requested the common friends and respected persons of the locality to resolve the matter, but the defendant/respondent no. 2 refused to vacate the suit property. The legal notice dated 09.02.2018 was sent to the defendant/respondent no.2 terminating the license and asking him to handover the vacant and peaceful possession of the suit property, but he did not send any reply to the same. Hence, the suit for mandatory injunction thereby directing the defendant/respondent no. 2 to vacate the suit property and handover the peaceful and vacant possession to plaintiff/respondent no. 1, to pass a decree for permanent injunction in favour of the plaintiff/respondent no. 1 and against the defendant/respondent no. 2 thereby restraining the defendant/respondent no. 2, his agents, servants, attorneys etc. from selling, transferring and creating third party interest in the suit property and mesne profits @ Rs.7,000/- per month for use and occupation and damages @ Rs.10,000/- per month till the handing over the vacant possession to the plaintiff/respondent no. 1 is filed. Suit was also accompanied by application under Order 39 Rule 1 &2 r/w Section 151 of CPC.
5. Notice of the suit as well as application was sent to the defendant/respondent no. 2 who filed the written statement taking VIRENDER KUMAR BANSAL the preliminary objections that the suit was filed without any cause of action and plaintiff/respondent no. 1 had no locus standi Digitally signed by VIRENDER KUMAR BANSAL to file the suit and claim for the relief of injunction and recovery Date: 2023.09.01 17:26:48 +0530 of damages from the defendant/respondent no. 2.
RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 3/396. It is also alleged that the Court has no pecuniary jurisdiction to entertain the suit. It is alleged that the plaintiff/respondent no. 1 is a money lender and prepared false and frivolous documents to grab the property of the defendant/respondent no. 2. Plaintiff/respondent no. 1 has no locus-standi to file or institute the present suit and hence, it is liable to be dismissed. The suit has been filed with the malafide intention as the plaintiff/respondent no. 1 has not come to the Court with clean hands and suppressed the material and true facts, therefore, the plaint is liable to be dismissed. It is alleged that the suit is liable to be dismissed due to non-joinder or mis- joinder of parties as the suit property belongs to Smt. Tamanna and plaintiff/respondent no. 1 did not join her as party in the present suit. The plaintiff/respondent no. 1 has also not properly valued the suit for the purposes of court fees and is under valued. It is further alleged that as per the judgment of Hon'ble Supreme Court passed in the case of Suraj Lamp and Industries Pvt. Ltd. v State of Haryana, (2012) 1 SCC 656, there is no valid document in favour of the plaintiff/respondent no. 1, hence the suit is liable to be dismissed on this ground alone. The Hon'ble Supreme Court in the aforesaid case has held as under:
"13. 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 (see section 1A and Section 2 of the Powers-of-Attorney Act, 1882). 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. In State of Rajasthan v. Basant VIRENDER Nehata, 2005(12) SCC 77, this Court held : KUMAR BANSAL "A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed Digitally signed by VIRENDER of power of attorney, an agent is formally appointed KUMAR BANSAL Date: 2023.09.01 to act for the principal in one transaction or a series 17:26:55 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 4/39 of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience."
7. The defendant/respondent no. 2 made preliminary submissions that he took Rs.2 lakhs from plaintiff/respondent no. 1 on interest for his business purpose in the year 2017 which he has re-paid. The plaintiff/respondent no. 1 took the property documents from the defendant/respondent no. 2 and stated that he require the same for Nikah as his first wife had died and he is contracting second marriage. The plaintiff/respondent no. 1 took the defendant/respondent no. 2 to Nand Nagri, Delhi on 02.01.2018 and had showed the property documents already prepared by him and obtained his signatures on those documents. It is alleged that the plaintiff/respondent no. 1 prepared false, forged and fabricated documents and even also the chain of the documents. The plaintiff/respondent no. 1 prepared the General Power of Attorney, Agreement to Sell and Will etc. executed by Tamanna in favour of the defendant whereas his wife had never visited any office for executing any documents, neither signed any document nor put her thumb impression nor received any consideration amount from anyone with regard to her property.
8. When the wife of the defendant/respondent no. 2 came to know about this fact, she was shocked and lodged a complaint before the authorities and also to the police on 02.04.2018. It is VIRENDER KUMAR alleged that the plaintiff/respondent no. 1 prepared forged and BANSAL fabricated documents on 13.10.2017 i.e. General Power of Digitally signed by VIRENDER KUMAR BANSAL Date: 2023.09.01 17:27:01 +0530 Attorney, agreement to sell, Will, receipt, possession letter and RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 5/39 affidavit. These documents were never executed by the wife of the defendant/respondent no. 2. It is alleged that the plaintiff/respondent no. 1 is not residing at the address mentioned in the plaint and he has already left that address and is presently residing at A-182, Gali No.5, Guru Nanak Nagar, Mustafabad, Delhi-110094.
9. In reply on merits, it is denied that the plaintiff/respondent no. 1 is the lawful owner of the suit property or that he has purchased the suit property from defendant/respondent no.2 on 01.01.2018. It is also denied that vacant and peaceful possession was given to the plaintiff/respondent no. 1. It is alleged that on 02.01.2018 he was taken to Nand Nagri, Delhi by the plaintiff/respondent no. 1. It is alleged that defendant/respondent no. 2 is an illiterate person having no knowledge of English language. The defendant/respondent no. 2 put his signature on all the documents of the suit property and also gave his 4-5 passport size photos to the plaintiff/respondent no. 1 in good faith. It is also denied that plaintiff/respondent no. 1 allowed him to stay in the suit property for sometime. All other averments are denied and it is prayed that the suit be dismissed being devoid of any merits.
10. Replication to the written statement was filed by the plaintiff/respondent no.1 wherein he denied the averments made in the written statement and reasserted the facts as mentioned in the plaint.
11. From the pleadings of the parties, the following issues were framed by the Ld. Trial Court for adjudication of this suit: VIRENDER KUMAR BANSAL
(i) Whether the plaintiff is entitled to a decree for mandatory injunction as prayed for? OPP Digitally signed by VIRENDER KUMAR
(ii) Whether the plaintiff is entitled to a decree for BANSAL Date: 2023.09.01 17:27:13 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 6/39 permanent injunction as prayed for? OPP
(iii) Whether the plaintiff is entitled to a decree of mesne profits to the tune of Rs.7,000/- per month and damages @ Rs.10,000/- per month? OPP
(iv) Whether the suit is not maintainable u/o 7 Rule 10 CPC? OPD
(v) Whether the suit is not maintainable due to non-joinder or mis-joinder of the parties as suit property belongs to Smt.Tamanna? OPD
(vi) Relief
12. Thereafter, the case was fixed for evidence of the plaintiff/respondent no.1.
13. Plaintiff/respondent no.1 himself appeared in the witness box as PW-1 and tendered his evidence by way of affidavit which is Ex.PW-1/A wherein he reasserted the facts as mentioned in the plaint. He also proved the site plan of the suit property as Ex.PW- 1/1, photocopy of notarized General Power of Attorney dated 01.01.2018 as Ex.PW-1/2 (OSR), photocopy of notarized agreement to sell dated 01.01.2018 as Ex.PW-1/3 (OSR), photocopy of notarized affidavit dated 01.01.2018 as Ex.PW-1/4 (OSR), photocopy of notarized receipt dated 01.01.2018 as Ex.PW-1/5 (OSR), photocopy of notarized possession letter dated 01.01.2018 as Ex.PW-1/6 (OSR), photocopy of notarized deed of Will dated 01.01.2018 as Ex.PW-1/7 (OSR), office copy of the legal notice Ex.PW-1/8 and two original postal receipts are Ex.PW-1/9.
14. During the cross-examination, plaintiff/respondent no. 1 deposed that there was no monetary give or take between him and the defendant. He had not given any loan to anyone. He further deposed that at the time of sale agreement, he paid Rs.7.5 VIRENDER KUMAR BANSAL lakhs in cash to the defendant. Aas Mohd. (Behnoi) and Sher Mohd. were present at the time of sale agreement. He had seen Digitally signed by VIRENDER KUMAR BANSAL Date: 2023.09.01 17:27:22 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 7/39 the previous chain of documents of the suit property. The suit property was in the name of wife of the defendant before transferring it to the defendant. He does not know in whose name the suit property was before it was transferred in the name of wife of the defendant. At the time of cash transaction in October, 2017, Aas Mohd. and Riyazuddin were present. At present the suit property would be around Rs.12 lakh to Rs.13 lakhs.
15. He denied the suggestion that the previous chain of documents are forged and fabricated. He denied the suggestion that he took the defendant to the Court on the pretext of preparing a Nikahnama or that he has not paid any money to the defendant and fraudulently got prepared the documents in question. He denied the suggestion that on 01.10.2018 was a public holiday. He also produced the copy of passbook which was exhibited as Ex.PW-1/10 which shows that there is withdrawal of amount. He denied the suggestion that he withdrew the amount for some other purpose than for the purchase of the suit property.
16. Sh. Sher Mohammad was examined as PW-2 who tendered his evidence by way of affidavit which is exhibited as Ex.PW-2/A. He supported the version of plaintiff/respondent no.1 that the plaintiff had purchased the suit property from defendant and the defendant executed the documents in favour of the plaintiff on 01.01.2018 and also delivered the peaceful possession of the suit property to the plaintiff and that thereafter the defendant requested sometime to vacate the suit property as the defendant could not arrange the suitable accommodation for VIRENDER KUMAR him and the defendant was allowed to stay in the suit property, BANSAL Digitally signed however, after one week, the defendant refused to vacate the suit by VIRENDER KUMAR BANSAL Date: 2023.09.01 17:27:33 +0530 property.
RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 8/3917. During the cross-examination, he deposed that the suit property was purchased for a sum of Rs.15 lakhs. He denied the suggestion that sale consideration was not made in his presence. He admitted that Rs.7.5 lakhs were paid in his presence and rest was not paid in his presence. He deposed that the part consideration of Rs.7.5 lakhs were paid to the defendant at his house on 25.01.2018 approximately and rest of the payment was acknowledged by the defendant in his presence that he has already received the same on the date the agreement to sell was executed between the parties. He deposed that he had signed the documents Ex.PW-1/2 to Ex.PW-1/6 at his residence. He deposed that prior to the defendant, the property in dispute was owned by the wife of the defendant. He admitted that the defendant asked the plaintiff to occupy the suit property again for his personal use in his presence, but he is not aware whether the plaintiff accepted the said request or not.
18. Irfan was examined as PW-3. He tendered his evidence by way of affidavit which is exhibited as Ex.PW-3/A and stated that defendant executed the documents Ex.PW-1/2 to Ex.PW-1/7 after receiving the entire sale consideration and plaintiff is the lawful owner and in possession of the suit property which he purchased on 01.01.2018. He deposed that on 25.01.2018, the defendant requested the plaintiff to allow him for short stay in the suit property as he did not find any suitable accommodation on rent or otherwise in the locality and plaintiff allowed the defendant to short stay in the suit property, but thereafter, the defendant became dishonest.
19. During the cross-examination, he deposed that he is not VIRENDER KUMAR BANSAL aware if there were any other transactions between his father and Digitally signed by VIRENDER the defendant apart from the sale purchase of the suit property. KUMAR BANSAL Date: 2023.09.01 17:27:42 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 9/39 He denied the suggestion that his father used to advance loan. He admitted that an agreement was executed between his father and the defendant with regard to the suit property. He deposed that his father has paid a sum of Rs.7.5 lakhs at the time of execution of the said sale agreement which was executed in the month of October, 2017. He deposed that one more person was present at that time whose name he does not remember. The agreement was executed at their residence. He deposed that the amount of Rs.7.5 lakhs was paid in cash. He deposed that agreement to sell was prepared at Nand Nagri, Delhi and the defendant also signed the same. The deal was finalized in Rs.15 lakhs out of which Rs.7.5 lakhs was paid at the time of execution of first agreement to sell and remaining Rs.7.5 lakhs was paid at the time of execution of second agreement to sell. He deposed that the said amount was arranged by his father from the bank. He deposed that the possession of the suit property was handed over to his father in his presence. They did not reside in that property, but kept it under their lock. He admitted that the defendant requested plaintiff to reside in the suit property till he gets any other suitable accommodation. The defendant occupied the suit property after 20-25 days. He denied the suggestion that Sher Mohd. was not present on that day nor signed in the register of the Notary at the time of execution of documents. He denied the suggestion that his father had advanced loan to the defendant which he has re-paid. Thereafter, the plaintiff evidence was closed and the case was fixed for evidence of defendant.
20. Defendant himself appeared in the witness box as DW-1 VIRENDER KUMAR and tendered his evidence by way of affidavit which is BANSAL Ex.DW-1/A wherein he reasserted the facts as mentioned in the Digitally signed by VIRENDER KUMAR BANSAL Date: 2023.09.01 written statement, but later on defendant took time to file another 17:27:51 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 10/39 affidavit as he wanted to file some other documents and the said application was allowed to place some more document in file subject to cost of Rs.1,000/- vide order dated 01.05.2019 and thereafter, fresh affidavit was filed. On 05.12.2019 as neither defendant nor any witness on his behalf was present and the earlier cost of Rs.5,000/- was also not paid, so the defendant evidence was closed and the case was fixed for final arguments.
21. Ld. Trial Court after hearing arguments passed the judgment and the decree dated 07.01.2020 which is under challenge in the present appeal.
22. The present appeal has been preferred by Noshad (hereinafter referred to as appellant). He was not the defendant before the Ld. Trial Court and that is why the appeal was preferred under Section 96 CPC.
23. Ld. Predecessor of this Court issued notice of this appeal to the respondent. Appellant also prayed for stay of the execution of all the proceedings, but the same was declined and notice was issued.
24. Respondent no. 1 has moved an application stating that the appeal is not maintainable. Appellant filed reply to the same and thereafter, appellant also moved an application under Section 96 of CPC.
25. During arguments, it was also pointed out to the Appellant that there is no prayer for setting aside the order dated 07.01.2020. Thereafter, he also moved an application under Order 6 Rule 17 of CPC and an application under Section 5 of Limitation Act was also moved for condonation of delay in VIRENDER KUMAR moving application under Section 96 of CPC. BANSAL
26. I have heard ld. counsel for the for the plaintiff/appellant, Digitally signed by VIRENDER KUMAR BANSAL Ld. counsel for the defendants/respondents and perused the Date:
2023.09.01 17:27:59 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 11/39 record.
27. Before dealing with the applications, it is pertinent to mention here that respondent no.1 before filing reply to the appeal moved an application under Order 41 Rule 11 and 16 of CPC, challenging the maintainability of the appeal on various grounds including that firstly the objections filed by the appellant are still pending consideration and as per law provided in Section 47 of CPC and Order 21 of CPC, the executing court shall determine all questions arising between the parties to the suit or their representatives in relation to the execution. The other objection is with respect to the permission under Section 96 of CPC has not been obtained before filing of appeal and then there is no relief claimed that the order of the Ld. Trial Court be set- aside. It was only after moving of this application by the respondent that the appellant moved application under Section 96 of CPC seeking leave to file the present appeal. The application was moved on 28.07.2023 and thereafter, application under Section 5 of the Limitation Act was also moved for condoning the delay in moving application and application under Order 6 Rule 17 of CPC seeking amendment of the prayer in the appeal was also filed.
28. Reply to all these applications have been filed by the respondent no.1. The respondent no.2 has not filed any reply to the applications and also to the appeal.
29. I have heard Ld. counsel for the appellant, Ld. counsel for the respondent no.1 on all the applications as well as on the main appeal and perused the record. The respondent no.2 or his VIRENDER KUMAR BANSAL counsel has not argued either on applications or on appeal.
Digitally signed by VIRENDER30. Firstly, application under Section 5 of the Limitation Act KUMAR BANSAL Date: 2023.09.01 17:28:06 +0530 and application under Section 96 of CPC are taken up.
RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 12/3931. Ld. counsel for the appellant submitted that the appellant herein is aggrieved by the decree and the judgment passed in case titled as Hasan Mohd. Vs. Shamshad Malik on 07.01.2020. The application under Section 96 of CPC has been moved on 28.07.2023 though the appeal was filed on 03.06.2022 but at that time the permission to file appeal was not taken, as it was mandatory, hence, the application was moved only on 28.07.2023. There is delay of 432 days in moving the application. Ld. counsel submitted that the cause of delay in moving the application was that appellant believed that appeal is maintainable and does not require any permission. However, during the course of arguments, it was revealed that leave to file appeal is required to be taken before filing appeal, hence, the applicant moved the application. Although the said application is in the nature of filling gap of irregularity which is visible from the appeal. However, so far as moving this application for condonation of delay in moving the application is concerned, Ld. counsel submitted that there is basically time consumed in Court and nowhere else. No prejudice is going to be caused. There was no deliberate delay and prayed that the delay be condoned.
32. Ld. counsel for the respondents submitted that this contention itself is farce that the appellant was not knowing that he has to seek leave to appeal is wrong as is evident from reply filed by the appellant herein to application under Order 41 Rule 11 CPC. In para 7 of reply, the appellant has referred to judgment of the Hon'ble Supreme Court with respect to permission under Section 96 of CPC as laid down in case of V. N. Krishna VIRENDER KUMAR BANSAL Murthy & Ors. Vs. Ravikumar and Ors., wherein it was held Digitally signed by VIRENDER that a stranger cannot be permitted to file an appeal in any KUMAR BANSAL Date: 2023.09.01 17:28:14 +0530 proceedings unless he satisfies the Court that the judgment and RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 13/39 decree prejudicially affects such a person, who is not party to the proceedings. Ld. counsel submitted this fact clearly shows that the appellant was very well knowing that permission to file an appeal under Section 96 of CPC is required and merely saying that he is aggrieved by the order is not sufficient or even that it prejudicially affects him is not sufficient. It has to be demonstrated that decree affects the legal rights of the appellant and would have an adverse effect when carried out. Ld. counsel submitted that even the appeal shows that it has been filed under Section 96 of CPC, hence, to allege that he thought he was not required to obtain permission is misnomer and an attempt to wriggle out of his own follies. Ld. counsel submitted that there is no explanation why the application was not moved earlier. There is delay of 432 days which remained unexplained, hence, it is prayed that the application be dismissed.
33. Keeping in view the submissions and facts of the case, I found that the appellant herein filed this application under Section 96 of CPC only but he never sought permission from the Court that he be permitted to file appeal under Section 96 of CPC as he is not a party. As per Section 96 of CPC, unless legal right of a party is infringed or would be adversely affected if the decree is executed, permission under Section 96 of CPC cannot be granted. He should have sought this permission at that time itself but he moved application only on 28.07.2023 i.e after 432 days. There is no explanation why it has not been moved earlier. He came to know about the same when application under Order VIRENDER 41 Rule 11 CPC was filed on 20.05.2023 still he did not prefer to KUMAR BANSAL file the same though he filed reply to application on 07.07.2023 Digitally signed by VIRENDER KUMAR BANSAL still he did not move appropriate application seeking permission. Date: 2023.09.01 17:28:20 +0530 It was only on 28.07.2023 when arguments on appeal were heard RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 14/39 that he moved the application. There is delay of more than one year and there is no explanation why it was not moved earlier. The application is highly belated and I do not find any valid reason to condone the delay and on this ground itself the appeal is liable to be dismissed.
34. So far as the application under Section 96 of CPC is concerned, the Ld. counsel for appellant submitted that actually it is the appellant herein who is the owner of the property as he purchased the same from Rajnish Kumar who in turn purchased the property in question from Tamanna Begum wife of Shamshad Malik/respondent no.2/JD in the present case on 17.08.2016 vide registered document no.1073, book no.4, volume no.11066 on pages 131-135 dated 24.08.2016. Rajnish Kumar executed the power of attorney in favour of the appellant herein. The decree is going to affect the rights of the appellant herein with respect to suit property and that is why he is the aggrieved person as he is having right, title and interest in the property in question as held in the case of Suraj Lamps Vs. State of Haryana.
35. On the other hand so far as the appeal is concerned, the respondent no.1/plaintiff is not having the documents of the property in dispute. Even the chain of documents is incomplete and documents are only notarized. There is difference in documents which are placed on record by the appellant and the respondent no.1/plaintiff. Even the chain of documents filed by Tamanna Begum is different which are with the appellant herein and which the respondent no.1 has placed on record. Ld. counsel submitted that the appellant herein is the person, who is VIRENDER KUMAR aggrieved and whose rights are going to be affected. He also filed BANSAL objections before the executing court. However, the executing Digitally signed by VIRENDER KUMAR BANSAL Date: 2023.09.01 court was busy in schedule and not inclined to hear the appellant. 17:28:28 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 15/39 Hence, the present appeal has been preferred under Section 96 of CPC.
36. Ld. counsel submitted that the Hon'ble Supreme Court has recently discussed the question as to whether a person who is not party to the suit can prefer an appeal if he satisfies the Court that he is the person who is aggrieved by the judgment and the Supreme Court in the case of V. N. Krishna Murthy & Ors. Vs. Ravikumar and Ors, AIR 2020 SC 4038 has held as follows:
"5. Section 96 and 100 of the Code of Civil Procedure provide for preferring an appeal from any original decree or from decree in appeal respectively. The aforesaid provisions do not enumerate the categories of persons who can file an appeal. However, it is a settled legal proposition that a stranger cannot be permitted to file an appeal in any proceedings unless he satisfies the Court that he falls with the category of aggrieved persons. It is only where a judgment and decree prejudicially affects a person who is not party to the proceedings, he can prefer an appeal with the leave of the Appellate Court. Reference be made to the observation of this Court in Smt. Jatan Kumar Golcha Vs. Golcha Properties Private Ltd.1:-
"It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the Appellate Court and such leave should be granted if he would be prejudicially affected by the Judgment."
37. Ld. counsel has also relied upon judgment in case titled as A. Subhash Babu Vs. State of A.P. and Anr. (2011) 7 SCC 616. It is prayed that keeping in view the facts and the law settled by the Apex Court of the land as appellant herein is also aggrieved party and his rights are going to be prejudicially affected, he be granted permission.
38. Ld. counsel for the respondent submitted that there is no merit in these contentions of Ld. counsel for the appellant. Ld. VIRENDER KUMAR BANSAL counsel submitted that the appellant herein is not having right, Digitally signed by VIRENDER title or interest in the property. On the other hand, respondent KUMAR BANSAL Date: 2023.09.01 17:28:35 +0530 no.1 is the owner of the property as held by the Trial Court. The RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 16/39 documents are in his favour which are executed by Tamanna Begum. Ld. counsel submitted that the present appellant is none else but real the brother of the JD who is respondent no.2 herein. The present appeal has been preferred in collusion with JD no.2. Tamanna Begum is the wife of JD/respondent no.2 and Bhabhi of the present appellant. This clearly shows that objections as well as the present appeal has been filed only to some how not allow the decree holder/respondent no.1 to have fruits of the decree which has been passed by competent court of jurisdiction. Ld. counsel submitted that as per Section 96 of CPC simply alleging that he is an aggrieved person is not sufficient. It has to be shown that he is having legal right in the property and if decree is executed his legal right will be affected which is not the case.
39. Ld. counsel submitted that the principles of leave to appeal have been laid down in Securities Insurance Company Re 1894 Volume 2 Ch 410 which is reproduced as under:
"I understand the practice to be perfectly well settled that a person who is a party can appeal (of course within the proper time) without any leave, and that a person who without being a party is either bound by the order or is aggrieved by it, or is prejudicially affected by it, cannot appeal without leave. It does not require much to obtain leave. It does not require much to obtain leave. If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave he will get it; but without leave he is not entitled to appeal:"
40. Ld. counsel has relied upon judgments titled as Jamia Hamdard (Deemed University) v. Hamdard National Foundation, (2020) 274 DLT 6, wherein it is held as under:
"30. Else, we find Supreme Court to have recently in judgment dated 21st August, 2020 in Civil Appeal Nos.2701-2704/2020 VIRENDER KUMAR titled Sri V.N. Krishna Murthy v. Sri Ravi Kumar to have held (i) BANSAL sections 96 and 100 of the CPC provide for preferring an appeal from an original decree or decree in appeal respectively; (ii) the Digitally signed by VIRENDER KUMAR said provisions do not enumerate the categories of persons who BANSAL Date: 2023.09.01 can file an appeal; (iii) however it a settled legal proposition 17:28:43 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 17/39 that a stranger cannot be permitted to file an appeal in any proceedings unless he satisfies the Court that he falls within the category of aggrieved person; (iv) it is only where a judgment and decree prejudicially affects a person who is not a party to the proceedings, he can prefer an appeal with the leave of the Court; (v) a person aggrieved, to file an appeal, must be one whose right is affected by reason of the judgment and decree sought to be impugned; (vi) the expression 'person aggrieved' does not include a person who suffers from a psychological or an imaginary injury; (vii) it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment; and, (viii) ordinarily leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings."
Patel Vinodbhai Khodidas v Patel Pravinbhai Kacharabhai, 2021 (3) GLR 2601, wherein it is held as under:
"9. Having discussed the principles of law as above and partic- ularly considering the concept of 'aggrieved person' to be enti- tled to enjoy the right to appeal, now the basic facts of the case may be recapitulated and reverted to. The plaintiff Patel Prav- inbhai Kachrabhai of Special Civil Suit No.31 of 2012 had exe- cuted agreement to sell dated 05th August, 2008 in respect of the subject matter property involved in the above Special Civil Suit for specific performance between the plaintiff and the de- fendants in favour of one Patel Bharatkumar and three others. This Bharatkumar and three others, subsequently on 09th De- cember, 2008 executed another document being agreement for sale in favour of the present applicants. When the suit was com- promised between the parties to the suit, the applicants on the basis of the above agreements dated 05th August, 2008 followed by 09th December, 2008 claimed their interest to project them- selves as the party aggrieved qua the compromise decree. 9.1 In other words, what is fundamental is that in order to be entitled to prefer an appeal, a person must be one who can be said to be aggrieved against the judgment. This aggrievement has to be a legal aggrievement where the aggrieved person could be said to be prejudicially affected to permit him to prefer appeal even if he is not a party to the suit proceedings. He must have an appealable interest. A party who would be benefited be- cause of the change in the judgment by redressal of legal in- VIRENDER juria, is said to have an appealable interest. The change in the KUMAR BANSAL judgment prayed to be appealed against by the third party, when brings an immediate right or legal benefit, then the person can Digitally signed by VIRENDER KUMAR be said to be having appealable interest. This appealable inter- BANSAL Date: 2023.09.01 est should not be contingent, speculative or futurative. The ap- 17:28:51 +0530 pealable interest must be substantial and immediate.RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 18/39
9.2 In order to acquire the status of aggrieved party, the person must have legal interest and an enforceable right which would in turn allowing him to question the decree or order by preferring appeal, though he may not be a party to the suit or proceedings. The applicants who claim their interest on the basis of the agreements to sell as above could not be said to be holding any interest in the property to be within the definition of legally aggrieved or prejudiced persons. As the applicants are not 'aggrieved party' vis-a-vis the compromise decree having regard to their legal status, they could not be clothed with right to appeal. They do not have 'appealable interest' in connection with the compromise decree."
Sri V. N. Krishna Murthy v Ravikumar & Ors., AIR 2020 SC 4038 (2020) 9 SCC 501, wherein it is held as under:
"15. section 96 and 100 of the Code of Civil Procedure provide for preferring an appeal from any original decree or from decree in appeal respectively. The aforesaid provisions do not enumerate the categories of persons who can file an appeal. However, it is a settled legal proposition that a stranger cannot be permitted to file an appeal in any proceedings unless he satisfies the Court that he falls with the category of aggrieved persons. It is only where a judgment and decree prejudicially affects a person who is not party to the proceedings, he can prefer an appeal with the leave of the Appellate Court. Reference be made to the observation of this Court in Smt. Jatan Kumar Golcha v. Golcha Properties Private Ltd. (1970) 3 SCC 573:-
"It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the Appellate Court and such leave should be granted if he would be prejudicially affected by the Judgment."
16. This Court in State of Punjab & Ors. v. Amar Singh & Anr. (1974) 2 SCC 70 while dealing with the maintainability of appeal by a person who is not party to a suit has observed thus :-
"Firstly, there is a catena of authorities which, following the dictum of Lindley, L.J., in re Securities Insurance Co., [(1894) 2 Ch 410] have laid down the rule that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it."
VIRENDER
17. In Baldev Singh v. Surinder Mohan Sharma and Ors (2003) KUMAR BANSAL 1 SCC 34., this Court held that an appeal under section 96 of the Civil Procedure Code, would be maintainable only at the Digitally signed by VIRENDER KUMAR instance of a person aggrieved by and dissatisfied with the BANSAL Date:
2023.09.01 judgment and decree. While dealing with the concept of person 17:29:13 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 19/39 aggrieved, it was observed in paragraph 15 as under:-
"A person aggrieved to file an appeal must be one whose right is affected by reason of the judgment and decree sought to be impugned."
18. In A. Subash Babu v. State of A.P. and Anr. (2011) 7 SCC 616, this Court held as under:-
"The expression 'aggrieved person' denotes an elastic and an elusive concept. It cannot be confined that the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the complainant's interest and the nature and extent of the prejudice or injuries suffered by him."
19. The expression 'person aggrieved' does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized (vide Shanti Kumar R. Canji v. Home Insurance Co. of New York (1974) 2 SCC 387 and State of Rajasthan & Ors. v. Union of India & Ors. (1977) 3 SCC 592).
20. In Srimathi K. Ponnalagu Ammani v. The State Of Madras represented by the Secretary to the Revenue Department, Madras and Ors. 66 Law Weekly 136 , this Court laid down the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment passed in such proceedings in following words:-
"Now, what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment in such proceedings? We think it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment. We think that ordinarily leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings."
VIRENDER
21. Applying the above tests, we are of the considered opinion KUMAR BANSAL that appellants can neither be said to be aggrieved persons nor bound by the judgment and decree of the Trial Court in any Digitally signed manner. The relief claimed in the suit was cancellation of by VIRENDER KUMAR BANSAL agreement to sell. On the other hand, the sale deeds which were Date: 2023.09.01 17:29:22 +0530 the basis of the claim of the appellants were executed on the basis of General Power of Attorney, and had nothing to do with RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 20/39 the agreement to sell which was subject matter of suit. The judgment and decree of the Trial Court is in no sense a judgment in rem and it is binding only as between the plaintiffs and defendants of the suit, and not upon the appellants." A. Subash Babu v State of A.P., (2011) 7 SCC 616, wherein it is held as under:
"The expression "aggrieved person" denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of complainant's interest and the nature and the extent of the prejudice or injury suffered by the complainant."
Arbinder Singh Kohli v. Gobind Kaur Kohli, 2018 (251) DLT 303, wherein it is held as under:
"35. A Power of Attorney merely permits the holder to act as the agent of the person executing the attorney. This Power of Attor- ney on a standalone basis is merely an agency and cannot vest a title in an immovable property. The execution of the Power of Attorney without any consideration thereof, on a standalone ba- sis merely constitutes an agency and nothing more. Even though the Power of Attorney can be termed as being irrevocable, the nature of the documents cannot be changed. This General Power of Attorney has to be tested as against the entire set of documents executed in favour of the Plaintiff. The pattern which clearly emerges is that the Plaintiff purchased the suit property from Shri Suresh Chand Kapoor and the Power of Attorney was executed in favour of her daughter-in-law by the son of the ven- dor only to enable the registration of the sale deed at a future point of time. The General Power of Attorney, without the re- maining set of documents, does not constitute a transfer of ti- tle."
41. Ld. counsel has also relied upon judgments titled as Rahul S. Shah vs. Jinendra Kumar Gandhi and Ors, dated 22.04.2021 MANU/SC/0333/2021; My Palace Mutually Aided Co-operative Society Vs. B. Mahesh and Ors. Dated VIRENDER 23.08.2022 MANU/SC/1030/2022; State of Punjab and Ors KUMAR BANSAL Vs. Amar Singh and Anr; Baldev Singh Vs. Surinder Mohan Digitally signed by VIRENDER KUMAR Shamra and Ors; Shriram and Ors Vs. Suresh Kumar and BANSAL Date: 2023.09.01 17:29:29 +0530 Ors; Prem Singh Vs. Girdhari Dhara dated (19.03.2020 -
RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 21/39DELHC) MANU/DE/0909/2020; Jini Dhanrajgir and Ors. vs. Shibu Matthew and Ors. (16.05.2023-SC):
MANU/SC/0583/2023; Bhanwar Lal vs. Satyanarain (1995) 1 SCC 6; Brahdeo Choudhary vs. Rishikesh Prasad Jaiswal & Anr dated 22.01.1997; Silverline Forum Pvt. Ltd. vs. Rajiv Trust & Anr (1998) 3 SCC 723;
42. Ld. counsel further submitted that leave to appeal is not just a passing formality or to be given mechanically. It is settled law that a party coming under Section 96 of CPC has to satisfy the status of being aggrieved person who could be said to be prejudicially affected to permit him to prefer an appeal even if he is not a party to the suit proceedings. Ld. counsel submitted that in order to acquire status of aggrieved party, such person must have legal interest and enforceable right which would in turn allow to question the decree or order by preferring appeal though he may not be a party to the suit or proceedings. Ld. counsel submitted that the Supreme Court has laid down the same law in the case of V. N. Krishna Murthy (Supra) and A. Subhash Babu (Supra).
43. Ld. counsel submitted that in the present case the appellant herein is not having right much less any legal right in the suit property. Ld. counsel submitted that the appellant though claiming right through one Rajnish but claims that he had purchased the property from Tamanna Begum in 2016 whereas pleadings show that defendant/respondent no.2/JD while filing VIRENDER KUMAR written statement claims that Tamanna Begum is the owner, who BANSAL Digitally signed is none else but Bhabhi of the present appellant. Ld. counsel by VIRENDER KUMAR BANSAL Date:
2023.09.01 further submitted that Tamanna Begum also lodged a complaint 17:29:36 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 22/39 in 2018 wherein she claimed herself to be the owner of immovable property which is also relied upon by the appellant herein. Under the circumstances, the contention that Tamanna Begum sold out property to Rajnish itself is not maintainable.
44. Ld. counsel further submitted that appellant claims that he purchased the property from Rajnish and has also placed on record one GPA which is registered document besides this GPA, there is no other document on record i.e agreement to sell, receipt etc. This document is dated 24.04.2019. Ld. counsel further submitted that simplicitor GPA executed in favour of the appellant herein only appoints him agent of Rajnish and does not confer any right, title or interest in the property. Hence, the claim that he is the owner is not supported by his own documents. He even does not claim any other document was executed by Rajnish Kumar in his favour, hence, his claim that he is having legal right itself is not in existence. Ld. counsel submitted that as there is no legal right in favour of the appellant herein in the suit property, hence, he does not fall in the category of an aggrieved person as he is not having any legal interest or any enforceable right in the suit property regarding which decree for possession has already been passed against his real brother. He cannot say that he falls within the category of aggrieved person as required under Section 96 of CPC and prayed that the application be dismissed.
45. I have perused the record. It is clear that if a person seeks leave to appeal under Section 96 of CPC, it cannot be granted VIRENDER KUMAR BANSAL mechanically or just on the asking of the person. One who is Digitally signed by VIRENDER coming under Section 96 of CPC, has to show that he is an KUMAR BANSAL Date: 2023.09.01 17:29:43 +0530 aggrieved person. No doubt the appellant herein is claiming that RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 23/39 he is an aggrieved person and he is the owner of the property and it is his right which is going to be affected as decree has been passed. According to him the owner of the property was Tamanna Begum wife of JD/respondent no.2. It is pertinent to note here that JD is none else but the real brother of the appellant herein and Tamanna Begum is the wife of JD i.e Bhabhi of appellant herein. The appellant claims that Tamanna Begum sold the property to one Rajnish Kumar and Rajnish Kumar in turn executed GPA on 24.04.2019 in favour of the appellant herein.
No doubt it is a registered document. It is important to note here that there is no other document executed in favour of the appellant herein in respect of the suit property and execution of GPA only appoints an agent on behalf of the person who is executing the GPA and it does not create any right, title or interest in the property in the absence of any other document. It is also pertinent to mention here that this GPA does not show or mention that there is any payment of consideration by the appellant herein to Rajnish Kumar for transfer of suit property in his name. Hence, to claim that he has become owner of the suit property by virtue of this GPA cannot be entertained. Hence, his claim that he is an aggrieved person because his ownership right is going to eclipse if decree is executed is only an effort to somehow save the property regarding which decree has already been passed by the Court against his real brother.
46. It is also important to mention here that he has already filed objections in the execution proceedings but still he has preferred this appeal. It is settled law under Order 21 and Section VIRENDER KUMAR BANSAL 47 of CPC that all issues and questions arising with respect to Digitally signed by VIRENDER execution of decree are to be decided by the executing court and KUMAR BANSAL Date: 2023.09.01 17:29:51 +0530 he has already filed objections before the Court of competent RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 24/39 jurisdiction but in any case he has failed to show any legal interest or any enforceable right in the property in dispute. Hence, he does not fall in the category of an aggrieved person as decided by the Supreme Court in the case of V. N. Krishna Murthy & Anrs. Vs. Sri Ravikumar & Anrs., AIR 2020 SC 4038 and A. Subhash Babu Vs. State of A.P and Anr. (2011) 7 SCC 616. Under the circumstances, permission to leave to file appeal under Section 96 of CPC is denied.
47. As mentioned earlier there is an application under Order 6 Rule 17 of CPC moved by the appellant which he moved after arguments on appeal were heard. Though this application is no more important as permission to leave to file appeal has already been refused but to keep the record straight, it is important to decide this application also. The prayer clause in the appeal is reproduced as under:
"A. Take on record the present appeal in to the present matter and thereupon to stay the present execution petition proceedings and call the record of the Trial Court to take not of the facts as stated by the appellant.
B. Decide the said appeal in favour of the appellant and against the respondents being the appellant a true and lawful owner of his said property and then to pass appropriate orders/directions.
C. Further, to take into judicial notice of the offence of filing false documents and giving false information by the respondent no.1 to the officer of a court of law and then to initiate the proceedings under Section 340 Cr.P,C against them.
D. Pass such amount of compensation and also the cost of the present appeal which this Hon'ble court may deem fit and proper to be granted to the appellant to be paid by the VIRENDER respondents for causing the appellant such a huge irreparable KUMAR BANSAL financial as well as mental loss and also for the harassment and agony suffered by the appellant physically and mentally, just all Digitally signed by VIRENDER because of the illegal act and omission on the part of the KUMAR BANSAL Date:
abovementioned respondents so as to be the same in the interest 2023.09.01 17:29:58 +0530 of justice as well as in the interest of the appellant.RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 25/39
E. Grant of ad interim exparte relief of stay of all proceedings to be conducted by the executing court or bailiff if any or any other officials in to the present matter, till the final disposal of the present appeal.
F. Pass any other further orders or further order that this hon'ble court may deemed fit and proper in the facts and circumstances."
48. When it was pointed out to him as to what actually he want out of this appeal, he stated that he wants the judgment dated 07.01.2020 be set aside and now vide this application he wants to add prayer as prayer clause A which reads as follows:
"That the judgment and decree dated 07.02.2020 passed by Ms. Chhavi Kapoor (JSCC/ASCJ/G.Judge) (NE), KKD Courts, Delhi in case titled as Hasan Mohd. Vs. Shamshad Malik be set aside in the interest of justice".
49. Though this application is also strongly opposed by Ld. counsel for the respondent but without this prayer this appeal has no meaning. Though it should have been prayed initially but in order to get relief it was required. In my opinion, the application does not create any new case and no prejudice is going to be caused to anybody. Hence the application is allowed. The amended appeal is already on file.
50. So far as merits of the appeal are concerned, Ld. counsel for the appellant submitted that the appellant is the owner of the property in dispute vide registered GPA having registration no.1148, book no.4, volume 11294, page no.18-23 dated 30.04.2019. Ld. counsel submitted that as the appellant was not residing in the suit property, he never got any information regarding the pendency of the proceedings filed by respondent no.1 against respondent no.2. However, when notice of the VIRENDER KUMAR executing court was served upon wife of the JD, she informed the BANSAL Digitally signed appellant in April, 2022. He immediately approached lawyer, by VIRENDER KUMAR BANSAL Date: 2023.09.01 17:30:05 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 26/39 who inspected the file on 26.05.2022 and filed the objections on 30.05.2022. The objections were listed on 31.05.2022 but were adjourned to 16.07.2022.
51. Ld. counsel submitted that the present case filed by respondent no.1 against respondent no.2 is glaring example of grabbing property of innocent persons like the appellant by forging valuable security like sale deed, GPA, agreement, possession letter etc and by giving false information and producing false documents. Ld. counsel submitted that respondent no.1 filed suit for mandatory and permanent injunction with consequential relief of future damages and mesne profit on 12.03.2018 alleging that he had purchased the suit property on 01.01.2018 and possession was handed over to him but later on he allowed respondent no.2 to reside in the property as licensee for sometime and when he did not hand over the possession, he filed the suit. After the trial, decree was passed and it was in the execution, he came to know that he being the owner, his valuable right is prejudiced. In this case Tamanna Begum was the earlier owner who sold the property to Rajnish Kumar who in turn executed GPA in favour of the appellant herein. The chain of documents of transfer of ownership of the plot along with supporting documents are also with the appellant herein.
52. Ld. counsel submitted that infact Tamanna Begum wife of respondent no.2 purchased the property in dispute from Mohd. Anees son of Abdul Gani, who in turn had purchased it on 06.01.2015 from Rafique son of Haziwali Mohd. Rafique who had purchased the property in dispute from Shabnam wife of VIRENDER KUMAR BANSAL Mohd. Saleem on 02.05.2014 and Shabnam had purchased the Digitally signed by VIRENDER KUMAR BANSAL property in dispute from Amir Bano wife of Wahid Ali on Date:
2023.09.01 17:30:14 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 27/39 20.12.2011. Amir Bano had purchased the property from Yakub son of Hakimuddin on 14.10.2011. Yakub had purchased the property from Prabha Devi on 15.12.2005, who in turn had purchased it from Mahesh Chand son of Radhey Shyam on 18.01.1993. The entire chain of documents is with the appellant herein which the respondent no.1 is not having. Infact he forged all documents which is also evident from the fact that the number on the non judicial stamp paper is different which clearly shows that documents are fake and forged.
53. Ld. counsel submitted that respondent no.1 and respondent no.2 Shamshad Malik were friends and they have forged these documents to grab the property of the appellant herein. The respondent no.2 is the husband of Tamanna Begum, who had forged all these documents to grab the property in question.
Tamanna Begum in the year 2018 had also filed complaint mark A5 against Hasan Mohd/respondent no.1 and Irfan son of respondent no.1 and other persons alleging that they had forged those documents and got prepared the documents in favour of her husband on 13.10.2017. Ld. counsel submitted that in that compliant she has specifically mentioned that on 01.01.2018, respondent no.1 had taken her husband on the pretext that he is getting married and his presence is required for being a witness and obtained his signatures. It is alleged that respondent no.2 is an illiterate person. He does not know English and that is why he cannot prepare these documents. Later on she came to know that respondent no.1 has filed false case against her husband for possession. VIRENDER KUMAR
54. Ld. counsel submitted that Tamanna Begum has BANSAL specifically mentioned that these documents were forged and Digitally signed by VIRENDER KUMAR BANSAL fabricated. She has not executed any document and that she has Date: 2023.09.01 17:30:23 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 28/39 also not received any amount as alleged by respondent no.1 in his complaint dated 30.03.2018. Ld. counsel submitted that all these facts clearly show that respondent no.1 forged these documents to grab the property of Tamanna Begum which is also evident from her complaint dated 30.03.2018. A complaint has already been lodged against respondent no.2 by the appellant herein. Ld. counsel submitted that the Trial Court has not considered these facts. Original documents were not produced and only photocopies were there but the same have been accepted as good and reliable source of transfer of suit property without considering the judgment of the Supreme Court. Ld. counsel submitted that infact respondent no.1 and 2 were hand in glove and have cheated the appellant herein by forging documents without informing him true facts. The judgment is bad in the eyes of law. The Court has also observed that the entire previous chain of title documents are already on record in original which goes to show that defendant was authorized and empower to execute above noted documents that transferred the suit property in the name of the plaintiff. This shows that the Ld. Trial Court has not considered all the facts. Infact there are no original documents on file.
55. Ld. counsel submitted that it pertains to hard earned money of the appellant who has invested the same in the suit property. The Trial Court has not considered the entire evidence. There is nothing on record as to how Rs.15 lakhs were paid in cash. It is also questionable as to how the possession was delivered when respondent no.2 was still occupying the suit VIRENDER property. The Trial Court has also not considered that the wife of KUMAR BANSAL respondent no.2 had also filed criminal complaint against Digitally signed by VIRENDER KUMAR BANSAL Date: 2023.09.01 17:30:30 +0530 respondent no.1 alleging that he has forged the documents. The RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 29/39 evidential value of documents has not been considered. It is also not considered that there is a lady, who is the owner and she has never been produced in the court whether she has executed any document or not. Ld. counsel submitted that under the circumstances the order of the Ld. Trial Court is not sustainable in the eyes of law and is liable to be set aside. It is prayed that the appeal be allowed.
56. Ld. counsel for the respondent submitted that the appeal is liable to be dismissed as it is based on false and frivolous grounds and whims and fancies of the appellant. Ld. counsel submitted that admittedly he has already filed objections before the Trial Court and it is settled law that every issue arising during the execution is to be decided by the executing court, hence, the present appeal is not maintainable at all. Ld. counsel submitted that admittedly respondent no.1 has relied on documents namely Will, agreement to sell, GPA, receipt and letter of possession, hence, he has better title in the suit property than the appellant herein and also respondent no.2. On the other hand, appellant herein is not having any such documents like agreement to sell, Will, payment of money or receipt. There is no consideration paid. He is only having GPA in his favour, hence, he is merely an agent of Rajnish Kumar. Ld. counsel has relied upon judgment titled as Arbinder Singh Kohli and Ors. Vs. Govind Kaur Kohli wherein it is held as under:
"11. Shri Malhotra further urged that the Agreement to Sell does not confer any title upon the Plaintiff. The consideration was paid from the joint family funds as admittedly, the Plaintiff did not have any source of income. He relied on the cross- examination of the Plaintiff to the effect that she had no source of income. He further submitted that along with the Agreement VIRENDER to Sell, which was executed by Shri Suresh Chand Kapoor in KUMAR BANSAL favour of the Plaintiff, on 17th May, 2002, a Power of Attorney was executed by Shri Gautam Kapoor in favour of Defendant Digitally signed by VIRENDER KUMAR BANSAL No.2, the daughter-in-law. In the said Power of Attorney, it is Date: 2023.09.01 17:30:37 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 30/39 recorded that possession is also being given to the daughter-in- law. Though the said Power of Attorney has been subsequently cancelled, the Defendants also have a Power of Attorney from the original owners, i.e. the the Balharas, who were the original Bhumidars of the suit property. He submits that a mere Agreement to Sell which is not registered, cannot confer any title on the Plaintiff in view of the judgment of the Supreme Court in Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana (2012) 1 SCC 656"
57. Ld. counsel further submitted that admittedly there is only GPA in favour of the appellant and in the absence of consideration amount, agreement to sell, will etc, mere document i.e GPA does not create title over the property in favour of the appellant.
58. Ld. counsel further submitted that the appellant is relying upon GPA allegedly executed by Tamanna Begum in favour of Rajnish Kumar in the year 2016 but she has herself refuted the same by placing on record the complaint allegedly filed by her on 30.03.2018 wherein she claimed that she is the owner of the property. Hence, to allege that she has transferred the property in favour of Rajnish Kumar is only an after thought based upon false and fabricated documents as Tamanna Begum is Bhabhi of the appellant herein and respondent no.2 is the real brother of the appellant herein. They are all hand in glove and want to somehow delay the execution of the decree.
59. Ld. counsel further submitted that as per the record Tamanna Begum has only executed Power of Attorney in favour of Rajnish Kumar authorizing him to enter into sale agreement on her behalf. Hence, Rajnish Kumar does not become the owner of the property and it was Tamanna Begum, who had executed VIRENDER KUMAR BANSAL documents in favour of Shamshad Malik transferring her right in Digitally signed by VIRENDER favour of her husband, who in turn transferred the same in favour KUMAR BANSAL Date: 2023.09.01 17:30:43 +0530 of respondent no.1.
RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 31/3960. Ld. counsel further submitted that the appellant herein is not in possession of the suit property. He himself admits that he is not residing in the suit property as mentioned in para 2 of the appeal. Hence, his no right is going to be affected with the execution of the decree as he is neither having any right, title or interest in the property except of being an agent of Rajnish Kumar, who himself is not having any right, title or interest in the property. The appellant is also not in possession of the property in question as he himself has categorically mentioned in para 2 of the appeal which reads as under:
"2. That the information of the suit was never informed to the appellant as he was not residing on the suit premises and the proceedings of the same was never made known to the appellant. However, the notice issued by the executing court has been served on the judgment debtor's wife and she has informed to the appellant in the month of April, 2022..."
61. Ld. counsel submitted that from the aforesaid facts it is clear that no right of the appellant herein is going to be prejudiced. He is seeking to put off the effect of execution of the decree. Ld. counsel further submitted that the appellant herein is residing with Tamanna Begum and Shamshad Malik which is evident from the address mentioned in the appeal wherein he mentioned the address as A-106, Street no.5 near Akbari Masjid, Guru Nanak Nagar, Mustafabad, Delhi-94 and the address of Shamshad Malik is also the same. Tamanna Begum is also residing along with her husband Shamshad Malik. Hence, to allege that Tamanna Begum or her husband Shamshad Malik, who is respondent no.2/JD has not told the appellant herein about the pendency of the suit is nothing but farce.
VIRENDER
62. Ld. counsel submitted that there is no merit in the entire KUMAR BANSAL appeal and it is bundle of lies. The appellant is not residing in the Digitally signed by VIRENDER KUMAR BANSAL property. He is not an aggrieved person. Even otherwise there is Date: 2023.09.01 17:30:51 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 32/39 nothing on record to show that he has any interest or title in the property. The Ld. Trial Court has rightly decided the issue and held that they are not entitled to possession.
63. After hearing the arguments and going through the record, I found that the appellant has filed the present appeal alleging that he is the owner of the property in dispute as he has purchased the same vide GPA dated 24.04.2019 registered as document no.1148, book no.4, volume 11294, page no.18-23 dated 30.04.2019 and Rajnish Kumar had purchased the same from the earlier owner Tamanna Begum wife of Shamshad Malik vide GPA dated 17.08.2016 registered as document no. 1073, book no.4, volume no.11066 on pages 131-135 dated 24.08.2016. It is pertinent to note here that the appellant himself has placed on record the complaint made by Tamanna Begum dated 30.03.2018 made against respondent no.1 and his son and other persons. According to this complaint which is given to the Lt. Governor and other authorities, she had purchased the property in dispute on 24.05.2016 and is the owner of the house. If she is still the owner as she alleged in her complaint dated 30.03.2018 then this contention by the appellant that she has sold the property in question to one Rajnish Kumar on 17.08.2016 is itself wrong. If Tamanna Begum has sold the property, she should have mentioned it in her complaint that she had already sold the property to Rajnish and she is not having any right in the property. From this it is clear that the appellant is blowing hot and cold in the same breath.
64. It is also important to note here that Tamanna Begum is the VIRENDER KUMAR wife of Shamshad Malik and Shamshad Malik is the real brother BANSAL of the appellant herein. Admittedly, Naushad/appellant herein is Digitally signed by VIRENDER KUMAR BANSAL Date: 2023.09.01 residing in the same house where his brother Shamshad Malik 17:30:58 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 33/39 and Tamanna Begum are residing. It is evident from the document filed by the appellant himself. As Tamanna Begum in GPA which she had executed in favour of Rajnish Kumar on 17.08.2016 has given her address as A-106, Street no.5 near Akbari Masjid, Guru Nanak Nagar, Mustafabad, Delhi-94 and the appellant has also mentioned his address as the same and that of Shamshad Malik is also same. Therefore, whatever information was with his brother and his wife was also with appellant, hence, his claim that he was not knowing about the pendency of the suit cannot be accepted. He claimed ignorance of the pendency of the suit and alleges that when the summons were received in April, 2022 only thereafter Tamanna Begum i.e his Bhabhi and wife of respondent no.2, who is real brother of the appellant told him about the judgment and the execution. All these facts itself show that it is nothing but an effort by the appellant to create ground alleging ignorance about the pendency of the suit and the possession particularly when both were living in the same house.
65. It is also important to note that that though the appellant claims that he is the owner of the property but record shows that he is only GPA holder. There is no other document i.e receipt showing payment of consideration amount or agreement to sell or Will etc executed by Rajnish Kumar in favour of the appellant herein. It is settled law that Power of Attorney merely permits the holder to act as an agent of the person executing attorney and does not confer or vest any title in the immovable property. Now according to the documents placed on record by the appellant, Tamanna Begum wife of Shamshad Malik i.e JD/respondent VIRENDER KUMAR no.2 herein executed GPA in favour of Rajnish Kumar on BANSAL 17.08.2016. Copy of same has been placed on record. It is Digitally signed by VIRENDER KUMAR BANSAL Date: 2023.09.01 pertinent to mention here that Shamshad Malik is also a signatory 17:31:05 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 34/39 to that. There is no consideration paid by Rajnish Kumar to Tamanna Begum. There is no other document executed by Tamanna Begum in favour of Rajnish Kumar such as agreement to sell, receipt, letter of possession, Will etc. Hence, on the basis of this GPA, Rajnish Kumar only becomes an agent of Tamanna Begum and this fact is also supported by the complaint lodged by Tamanna Begum on 30.03.2018 with various authorities on which the appellant has heavily relied upon wherein she claims that she is the owner of the property and, hence, she confirms that she has not transferred this property in the name of Rajnish Kumar as alleged by the appellant herein.
66. The appellant has also placed on record one more GPA dated 24.04.2019 executed by Rajnish Kumar in favour of the appellant. Again in this GPA, no consideration has been paid by the appellant herein to Rajnish Kumar. There is no other document executed by Rajnish Kumar in favour of the appellant herein. Even otherwise Rajnish Kumar himself was not having any right, title or interest in the suit property and hence, he cannot transfer any right, title or interest in the suit property in favour of the appellant herein and he only gets right to work as an agent of Rajnish Kumar by virtue of this GPA. Hence, so far as the appellant herein is concerned, he is not having any right, title or interest in the suit property as GPA only confers right to act as an agent in the absence of any document. The law in this regard is settled by the High Court of Delhi in case titled as Arbinder Singh Kohli and Ors. Vs. Gobind Kaur Kohli (Supra). Hence, I do not find any merit in the contention of the VIRENDER KUMAR appellant herein that he is the owner of the property. BANSAL Digitally signed
67. It is also important to note that the appellant has also not by VIRENDER KUMAR BANSAL Date: 2023.09.01 17:31:11 +0530 got the possession of the suit property after execution of GPA as RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 35/39 he himself alleged in para 2 of his appeal that "the information of the suit was never informed to the appellant as he was not residing on the suit premises and proceedings of the same was never made known to the appellant". However, notice issued by the executing court has been served on JD's wife and she informed the appellant in the month of April, 2022. Hence, I am of the considered opinion that the appellant herein is not having any right, title or interest in the suit property.
68. It is further important to note that during the evidence recorded before the Trial Court, it has come on record in the form of suggestion to PW3 which is reproduced as under:
"we do not reside in the property but keep it under our locks. We locked it on the same day when we took the possession. It is correct that defendant requested the plaintiff to reside in the suit premises till he gets another accommodation. Defendant occupied the suit property after 20-25 days. It is wrong to suggest that the defendant never delivered the possession of the suit property to my father at any point of time. It is wrong to suggest that the defendant never requested me and my father to occupy the same again...."
69. Similar suggestion was also given to PW2 and he also admitted it to be correct that after 20-25 days. The defendant i.e. respondent no.2 herein requested the plaintiff i.e. respondent no.1 herein to allow him to stay in suit property for some more time. This fact clearly shows that it was the defendant who not only handed over the possession to the plaintiff/respondent no.1 but also requested that he be allowed to reside in that house for sometime. After about 20-25 days, he handed over the possession. So far as the payment of money is concerned, as per the evidence money was given in cash and infact the defendant VIRENDER does not deny the same. Even the pass book of the KUMAR BANSAL plaintiff/respondent no.1 was called, copy of which is Ex. Digitally signed by VIRENDER KUMAR BANSAL Date: 2023.09.01 PW1/10. It shows that the plaintiff/respondent no.1 has 17:31:18 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 36/39 withdrawn the amount from his bank account. The defendant himself has not appeared in the witness box despite opportunities. No other witness was examined by him. Even his wife Tamanna Begum did not appear in the witness box to prove that she has not executed any document in favour of respondent no.2. All this evidence clearly establish that respondent no.2 for a consideration of Rs.15,00,000/- executed the document in favour of the plaintiff/respondent no.1 and also handed over the possession of the suit property after about 20-25 days as his request for permissive possession was allowed for some time, but thereafter he denied to vacate the property despite termination of his license with legal notice.
70. It is also important to note here that the defendant/respondent no.2 in his written statement has taken plea that he was called for Nikahnama but in para 1 of preliminary submissions, he has mentioned that:
"plaintiff took the defendant on 02.01.2018 at Nand Nagri, Delhi and showed property documents which were already prepared by the plaintiff and took signatures of the defendant on the said property documents"
It shows that according to defendant/respondent no.2, documents of property were executed and signed by him. This fact that documents were executed is also reflected from cross- examination of PW1 wherein the grievance of the defendant/respondent no.2 is that the plaintiff has not paid the money but fraudulently got prepared the documents. Here it shows his grievance with respect to non-payment of money but when he cross-examined PW2, he suggested to PW2 which was VIRENDER KUMAR also admitted by PW2 as follows: BANSAL "It is correct that only a payment of Rs.7,50,000/- was made in Digitally signed by VIRENDER my presence and rest of the amount was acknowledged by KUMAR BANSAL Date: 2023.09.01 17:31:26 +0530 defendant in my presence"
RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 37/3971. All this evidence adduced and defence taken by defendant/respondent no.2 clearly shows that documents were properly executed by him as is admitted during cross- examination of PW2 and thereafter possession was delivered to him after about 20-25 days of the delivery of the possession.
72. Under the circumstances, I find no merit in this contention that the plaintiff was not having any right, title or interest in the property. Infact, it is never disputed by the defendant/respondent no.2 though it is argued by Ld. counsel that the original documents were not produced but record shows as is evident from the testimony of PW1 that original documents were shown to the Court and that is why photocopies were accepted. It is important to note that as original documents were seen and returned, photocopy were accepted. The defendant/respondent no.2 has not taken any objection that the original be not returned. Hence, this contention that the original documents were not before the Trial Court and despite that the Trial Court has relied upon the documents has no merit.
73. Ld. counsel has also contended that the respondent no.2 is not reliable and he has colluded with respondent no.1 but the record shows that allegedly the documents which the appellant claim to be with him i.e entire chain of documents which according to him should be with him are already on the file of the Trial Court and placed on file by none else but by respondent no.2. According to these documents Tamanna Begum got right through Mohd. Anees son of Abdul Gani. Thereafter, Tamanna Begum executed power of attorney in favour of her husband through GPA, will etc. Under the circumstances, when there is no VIRENDER KUMAR BANSAL evidence adduced by respondent no.2 to refute claim rather Digitally signed by VIRENDER KUMAR BANSAL evidence brought on record shows that he purchased this property Date: 2023.09.01 17:31:32 +0530 RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 38/39 through documents executed by defendant/respondent no.2 on 01.01.2018 and also handed over possession and thereafter defendant/respondent no.2 was permitted to live as licensee for limited time as also deposed by PW2 and PW3 corroborating the testimony of PW1. Here it is important to note that PW2 is an independent witness and to him also defendant/respondent no.2 has suggested that he requested the plaintiff to allow him to reside in the suit property and the witness admitted it to be correct. Once it has come on record that it was permissive possession i.e defendant/respondent no.2 was a licensee in the suit property, the Ld. Trial Court found that the legal notice was duly served despite he is not delivering the possession and rightly decreed the suit for mandatory injunction directing the respondent no.2 to deliver the possession. I do not find any reason to differ with the opinion of the Ld. Trial Court in this regard. There is no merit in the appeal. Same is dismissed.
74. Copy of the order along with Trial Court record be sent back. Digitally signed by VIRENDER
75. Appeal file be consigned to the Record Room. VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2023.09.01 17:31:38 +0530 Announced in the open (V. K. BANSAL) Court today i.e on Principal District & Sessions Judge, 1st September, 2023 North East, Karkardooma Courts, Delhi.RCA DJ no.13/2022 Noshad Vs. Hasan Mohd. and Anr. Page 39/39