Delhi District Court
Dr. Sadre Alam vs Mrs. Saba Alam on 31 August, 2016
IN THE COURT OF MS. NEELOFER ABIDA PERVEEN,
ADDITIONAL DISTRICT JUDGE04, SOUTHEAST, SAKET
COURTS, NEW DELHI
Presiding Officer: Ms. Neelofer Abida Perveen, ADJ04
Suit No.444/2016
Unique ID no. 02406C0033902016
In the matter of :
Dr. Sadre Alam
S/o Late Sh. Mohd. Karim,
R/o Let Mather Str. 31,
58119 Hegen,
Germany. .....Plaintiff.
Vs
1.Mrs. Saba Alam, W/o Sh. Mirza Anarul Islam Beg, R/o B34, Abul Fazal Enclave, PhaseIII, New Delhi.
2. Shri Mirza Anarul Islam Beg, R/o B34, Abul Fazal Enclave, PhaseIII, New Delhi. ......Defendants.
Date of institution : 20.11.2010 Date on which order was reserved : 26.08.2016 Date of pronouncement of the order : 31.08.2016
Vide this judgment, I shall decide the present suit instituted by the plaintiff on 20.11.2010 for recovery of possession of property bearing No.B34, Abul Fazal Enclave, Phase3, New Delhi (hereinafter referred to as the suit property) from the defendants and CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 1 of 39 for recovery of mesne profits for its user and occupation. The defendants are the daughter and son in law of the plaintiff.
1. The plaintiff has instituted the present suit against the defendants in order to recover possession of suit property and to recover mesne profits on a set of facts that the plaintiff is the owner of property bearing No.B34, Abul Fazal Enclave, PhaseIII, New Delhi having purchased the same from its erstwhile owner, Mr. Aslam Parwez on Agreement to Sell and Power of Attorney basis executed in favour of the plaintiff on 28.05.1992. The property comprises of two bedrooms, living room, two toilets, kitchen and open space, built on a plot of 505 Sq. yards. The defendant No.1 is the daughter of the plaintiff from his first marriage and defendant N.o.2 is his soninlaw and husband of defendant No.1. The plaintiff is a permanent resident of Hagen, Germany and used the property for his and his family's stay whenever he visited India. In the year 1995, he permitted a family friend, Mr. Ataurahman Quasmi and his family to reside in the property. The said Ataurahman Quasmi stayed in the property till the year, 2000 and thereafter vacated the same. From the year 2000 to 2003, the same was used by the plaintiff, whenever he visited India and by his brother, Noor Alam and his family, whenever they visited Delhi from their home town in Bihar. Defendant No.1 had been studying outside Delhi during this period and also used to live in the property as and when, she visited in Delhi. The defendants got married in March, 2003 and since they did not have any accommodation to stay after marriage, defendant No.1 requested the plaintiff and plaintiff on her request, allowed defendants to live in the CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 2 of 39 property till the defendants found a place of their own to live. As the defendants were his daughter and soninlaw, the plaintiff did not charge anything from them for use and occupation of the property. Plaintiff, however, continued to live in the property as and when he visited India. The defendants had sought permission and plaintiff had permitted them to stay for a short period, till they arranged for other place of their own to live, defendants continued to stay in the property inspite of the fact that the plaintiff had been asking them to vacate the same from time to time, but to no avail. In August 2010, plaintiff wrote to defendant No.1 calling upon her to vacate the property as he intended to sell the same. He, however, gave an option to the defendant No.1 to purchase the same by notifying him in writing her intention in this regard. Plaintiff also put her to notice to move out of the property in the next 2 to 3 months. Defendant No.1 and her husband are as such, in illegal and unauthorized use and occupation of the property. They are also liable to pay damages for use and occupation of the same @ Rs.25,000/ p.m. In view of the relationship between the parties, plaintiff is not claiming arrears for the use and occupation of the property and restricting his claim for damages w.e.f. the date of filing of the suit. The cause of action for filing the suit arose firstly in March, 2003 when the plaintiff permitted the defendant No.1 to use and occupy the property temporarily. It again arose in August, September and October, 2010 when the plaintiff wrote to the defendants and asked them to vacate the same. It again arose in the first week of November, 2010 when plaintiff personally requested and asked the defendants to vacate the property and the CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 3 of 39 defendants refused and failed to do so. The property is situated in Delhi and defendants are residing at Delhi as such, this Court is stated to have territorial jurisdiction to try and entertain the present suit. For the purpose of jurisdiction and court fees, the suit is valued at Rs.79,00,200/ and advalorem CF is affixed.
2. The defendants put in appearance on 14.12.2010 and filed joint written statement taking preliminary objections to the effect that the suit of the plaintiff is false, frivolous and filed without any cause of action as the documents relied upon by the plaintiffs have been fabricated by the plaintiff with a view to claim his title over the property, the documents do not create any title over an immovable property as per the law of the land, the suit is instituted for extorting money, the plaintiff has suppressed material facts, the suit is not properly valued, the plaintiff is stranger to the property, the defendant No.1 has been in user, enjoyment and possession of the suit property by virtue of a notarised GPA and the plaintiff cannot be allowed to claim his title over an immovable property based on GPA, Agreement to Sell, Affidavit and Deed of Will.
On merits it is contended by the defendants that plaintiff is not the owner of the property, he has no interest, right and authority in the suit property and the plaintiff cannot be allowed to claim his title over an immovable property based on GPA, Agreement to Sell and defendant No.1 is the undisputed owner of the property. It is denied that the plaintiff used the property for the stay of himself and his family whenever he visited in India, on the contra it is alleged that he stayed at Le Meridian, Hyatt and Holiday Inn. It is admitted CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 4 of 39 that Mr. Ataulrahman Qashmi and his family used to reside in the property but it is alleged that he was permitted to reside in the property by the defendant No.1 and after vacating the same in the year 2000 he handed over peaceful possession to defendant No.1. It is denied by the defendants that in the year 20002003 the premises were used by the brother of the plaintiff and his family whenever they used to visit Delhi from their hometown in Bihar. It is also denied that the plaintiff looked after or provided to defendant No.1 till her marriage. Defendants are admitted to be married in March, 2003, however, it is denied by the defendant that the plaintiff allowed the defendants to live in the property till the defendants found place of their own as the plaintiff is not the owner of the property and there arises no question of charging anything from the defendants for the usage and occupation of the property. It has also been denied that the defendants had sought permission to stay for a short period and it is alleged that there is no question of the plaintiff asking the defendants to vacate the property from time to time as the plaintiff has no right and title in the property. It is also denied that the plaintiff had given an option to defendant No.1 to purchase the property from him. It is denied that the defendant No.1 and her husband are in illegal and unauthorised occupation of the property and it is contended that the defendants are in lawful usage, possession and enjoyment of the property as the property virtually belongs to them, therefore there arises no question of any damages or mesne profit as the plaintiff has no right, title or interest in the property.
3. The plaintiff filed replication controverting the contentions CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 5 of 39 raised in the WS and reiterating the averments made in the plaint. Upon the pleading of the parties, issues were framed on 16.07.2012 and issue No.2 was modified on 06.11.2013. The issues framed vide order dated 16.07.2012 and modified vide order dated 06.11.2013 read as under: (1) Whether Aslam Parwez, Abdul Fazal, Abdul Majid, Abdul Hafiz, Taj Sayeed and Mrs. Suraiya Parveen had agreed to sell the suit property to defendant no.1 and had executed documents such as General Power of Attorney, Agreement to Sell, Will, Possession Letter and Receipts in her favour and taken a consideration of Rs.10,65,000/ from her as alleged in the written statement? OPD (2) Whether Aslam Parwez, Abdul Fazal, Abdul Majid, Abdul Hafiz, Taj Sayeed and Mrs. Suraiya Parveen had agreed to sell the property to plaintiff no.1 and had executed documents such as General Power of Attorney, Agreement to Sell and receipts in his favour and taken consideration of Rs.10 lacs from him as stated in the plaint? OPP (3) Whether defendant no.1 was living in the suit property as a license of the plaintiff? OPP (4) Whether the plaintiff is entitled to possession of the suit property? OPP (5) Whether the plaintiff is entitled to damages for use and occupation and if so to what rate and to what amount? OPP CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 6 of 39
4. The plaintiff examined himself as PW1 and has also examined the predecessor in interest from whom the property is stated to have been purchased, Sh. Aslam Parvez as PW2 and thereafter closed the PEs. The plaintiff as PW1 has tendered into evidence the following documents: Sl No. Documents Exhibited
1. Agreement dated 28.05.1992 PW1/1 and PW1/2 and Power of Attorney dated respectively 28.05.1992 2. Receipt dated 28.05.1992 PW1/3
3. Site plan of the plot without the PW1/4 confirmation thereupon
4. Copy of letter dated nil sent in PW1/5 August 2010 along with postal receipts
5. Copy of letters dated nil sent in PW1/6 and PW1/7 September 2010 and October 2010 along with postal receipts
5. PW2 has tendered into evidence the following documents: Sl No. Documents Exhibited
1. Agreement to sell and General PW2/1 and PW2/2 Power of Attorney 2. Receipt dated 28.05.1992 PW2/3 3. Affidavit dated 28.05.1992 PW2/4
6. The defendant no.1 has examined herself as DW1 and has also examined the attesting witness to the GPA and agreement to sell, Sh. Mohd. Aslam as DW2. The defendant no.1 as DW1 has tendered into evidence the following documents: CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 7 of 39 Sl No. Documents Exhibited
1. Original General Power of DW1/1 Attorney dated 08.05.1992
2. Original agreement to sell and DW1/2 purchase dated 08.05.1992
3. Original affidavit dated DW1/3 08.05.1992 4. Original will dated 08.05.1992 DW1/4
5. Original possession letter dated DW1/5 08.05.1992
6. Original receipt dated DW1/6 08.05.1992
7. Photocopy of passbook in the Mark A name of deponent issued by the State Bank of India, New Delhi
8. Photocopy of passport in the Mark B name of deponent issued by Govt. of India
9. Photocopy of passbook in the Mark C name of deponent issued by the Central Bank of India, New Delhi
10. Photocopy of Identity Card the Mark D name of deponent issued by the Election Commission of India, New Delhi
11. Photocopy of PAN Card in the Mark E name of deponent issued by Govt. of India
12. Photocopy of Telephone in the Mark F name of deponent issued by the MTNL, New Delhi CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 8 of 39
13. Photocopy of passbook in the Mark G name of deponent issued by the State Bank of India, New Delhi
14. Photocopy of Travel document Mark H in the favour of deponent dated 10.05.2005
15. Photocopy of ration card issued Mark I by Govt. Of NCT of Delhi shown in the name of deponent at Serial No.3 therein.
16. Photocopy of Electricity Bill in Mark J the name of deponent issued by the BSES, Delhi
17. Photocopy of passport in the Mark K name of defendant no.2 namely Mirza Anwarul Islam issued by Govt. Of India
18. Photocopy of I Card in the Mark L name of defendant no.2 namely Anwarul Islam Beg issued by Election Commission of India
19. Photocopy of PAN Card in the Mark M name of defendant no.2 namely Anwarul Islam Beg issued by Govt. of India
20. Photocopy of passbook in the Mark N name of defendant no.2 namely Anwarul Islam Beg issued by State Bank of India, New Delhi
21. Photocopy of electricity bill in Mark O the name of deponent issued by BSES, Delhi
7. Issues No.1, 2, 3 and 4 are taken up together for discussion and adjudication as the issues are interlinked.
CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 9 of 39(1) Whether Aslam Parwez, Abdul Fazal, Abdul Majid, Abdul Hafiz, Taj Sayeed and Mrs. Suraiya Parveen had agreed to sell the suit property to defendant no.1 and had executed documents such as General Power of Attorney, Agreement to Sell, Will, Possession Letter and Receipts in her favour and taken a consideration of Rs.10,65,000/ from her as alleged in the written statement? OPD (2) Whether Aslam Parwez, Abdul Fazal, Abdul Majid, Abdul Hafiz, Taj Sayeed and Mrs. Suraiya Parveen had agreed to sell the property to plaintiff no.1 and had executed documents such as General Power of Attorney, Agreement to Sell and receipts in his favour and taken consideration of Rs.10 lacs from him as stated in the plaint? OPP (3) Whether defendant no.1 was living in the suit property as a license of the plaintiff? OPP (4) Whether the plaintiff is entitled to possession of the suit property? OPP
8. Ld. Counsel for the plaintiff submits that the plaintiff had bought the suit property from one Mr. Aslam Parvez (PW2 herein) by virtue of Agreement to Sell (Ex.PW1/1) and Power of Attorney (Ex.PW1/2) both dated 28.05.1992 executed in his favour by the said Sh. Aslam Parvez. Possession of the property was handed over on the same day to the plaintiff upon his paying the entire consideration. Ex.PW1/3 is the receipt thereof. In the year 2003, plaintiff permitted his daughter, i.e. Defendant No.1 and his sonin CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 10 of 39 law, defendant No.2 to stay in the suit property after their marriage till such time that they found their own place, without charge/rent. In August and October, 2010 plaintiff asked the defendants to vacate the suit property in writing. However, defendants failed to do so, resulting in filing of the present suit for possession and mesne profits. It is admitted case of the parties that Sh. Aslam Parvez was the original owner as both plaintiff and defendants claimed their title on the basis of agreement to sell and General Power of Attorney executed by said Sh. Aslam Parvez. It is important to mention further that in their written statement, defendants did not deny the rate of damages sought by the plaintiff. The plaintiff appeared as PW1. Sh. Aslam Parvez the original owner from whom both the parties claimed to have purchased the suit property, appeared as PW2. In his evidence, PW2 categorically admitted to have executed Agreement to Sell and General Power of Attorney both dated 28.05.1992 i.e. PW 1/1 and PW1/2 respectively in favour of the plaintiff. He also admitted the receipt of money (Ex.PW1/3) from the plaintiff and the factum of having handed over the possession to him. More importantly, Sh. Aslam Parvez categorically denied of having met and/or execution of any documents, including Ex.DW1/1 and DW 1/2 in favour of Defendant No.1. He specifically denied that signatures against his names on the said documents were his. That defendants also did not deny and/or crossexamine with respect to the letters dated August, 2010 (PW1/5), letter dated September, 2010 (PW1/6) and October, 2010 (PW1/7) written by the plaintiff, calling upon the defendants to vacate the suit property. Defendant No.1 in CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 11 of 39 her evidence miserably failed to prove the execution of title in her favour, as the executant, Sh. Aslam Parvez has categorically denied his signature and having executed the said document in her favour. Defendants also did not dispute the rate of damages both in the Written Statement as well as in their evidence and rate of damages, mesne profits stood proved @ Rs.25,000/ per month. Ld. Counsel further submits that the judgment of Hon'ble the Supreme Court rendered in Suraj Lamps does not affect or apply to the present case as the same is prospective. On the contrary, it affirms/confirms plaintiff's rights in the suit property and his entitlement to maintain the present suit on the basis of his title documents, particularly paras 25 and 26 of the said judgment. Ld. Counsel has also relied upon judgments of Hon'ble Delhi High Court, in the case of Ashok Indoria Vs. Vidyawanti reported in 2015 AIR (Del) 5: 2014 (143) DRJ 635, wherein Hon'ble High Court relying upon Suraj Lamp case (supra) had categorically held that the said judgment was prospective and that the suit for possession on the basis of Agreement to Sell and Power of Attorney executed prior to judgment in Suraj Lamp (Supra) could be relied upon for the purpose of suit for possession and that a party claiming ownership on the basis of Agreement to Sell and Power of Attorney executed before the judgment in Suraj Lamp (Supra) could be made the basis for seeking possession with respect to suit property. Reference is made to paras 5,7,8 and 10 in this regard and to judgment of the Hon'ble Delhi High Court in the case of Laxman Singh & Ors. Vs. Urmila Devi & Ors reported in ILR (2014) III Delhi 1649 (paras 4 & 7) wherein Hon'ble High Court had CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 12 of 39 confirmed that Suraj Lamp judgment had prospective effect and would not affect the transaction that had already taken place prior to the same. This judgment was also confirmed by a Division Bench of the Hon'ble High Court in RFA (OS) No.85/2014 titled Urmila Devi & Ors. Vs. Laxman Singh & Ors. decided on 20.03.2015.
9. Ld. Counsel for the defendants, on the other hand, submits that the plaintiff is relying upon two documents only i.e. Agreement to Sell and Power of Attorney allegedly executed by one Mr. Aslam Parvez dated 28.05.1992. The plaintiff has not obtained any possession letter hence, it is clearly established that the plaintiff has never been in possession of the property. While the defendants have obtained letter of Possession alongwith Agreement to Sell, Power of Attorney, Will and Affidavit all dated 08.05.1992. Since then, the defendant No.1 alongwith her husband has been in continuous user, enjoyment and possession of the property bearing No.D34 as an owner thereof. The plaintiff has even failed to prove these documents as required under the law. Even otherwise Agreement to Sell and Power of Attorney do not create any right, title and interest in any property hence he is not entitled to seek possession of the property. Consequently, he is not entitled to claim any mesne profits. The submission of the defendants is getting strength from the law laid down by the Hon'ble Supreme Court in "Suraj Lamps and Industries Pvt. Ltd. Versus State of Haryana & Anr. Reported in (2012) 1 SCC 656 which has clearly dealt with illeffects of SA/GPA/Will transactions. In view thereof, it is crystal clear that the plaintiff has no right to claim possession as it has not got any ownership, right or title CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 13 of 39 in respect of this property claimed by him. It is the case of the defendant that the defendant No.1 has purchased property D34, Abul Fazal Enclave, Jamia Nagar, Okhla, New Delhi from same person Aslam Parvez duly notarized with two witnesses on the basis thereof. She alongwith her husband i.e. defendant No.2 have been in possession of the property. The plaintiff has produced himself as PW 1, however, he has not denied that he has not sought any permission from RBI under FERA/FEMA. He has produced Mr. Aslam Parvez as PW2 who allegedly executed Agreement to Sell and Power of Attorney in favour of the plaintiff on 28.05.1992. This witness is totally unreliable and he appears to have executed documents in respect of a property to different persons. Besides, he has executed 3 sets of documents firstly in favour of the plaintiff, secondly in favour of defendants and thirdly a Power of Attorney allegedly registered with SubRegistrar, Faridabad, though he has admitted during his crossexamination that he has never appeared before SubRegistrar, Faridabad with respect to this property. The plaintiff has not produced any person who allegedly witnessed these documents. Fortunately, the defendants produced one of the witnesses of the documents Mr. Mohd. Aslam whose testimony remained as such reliable, who proved that Aslam Parvez executed these documents in favour of defendants. In view thereof, it is submitted that PW2 is totally unreliable witness. So far as documents of both the parties are concerned they remained exhibited hence the documents filed by the plaintiff and defendants have to be of same evidentiary value. It is clearly established that the Agreement to Sell is not sufficient in itself CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 14 of 39 to transfer any interest or title in favour of the plaintiff. So far as General Power of Attorney dated 28.05.1992 is concerned, its first page is typed out and the 2nd page is stereotyped used by those who prepare the documents who generally annex stereotype proforma of such documents without caring for its relevance which is also apparent from para15 of Power of Attorney which pertains to suits for ejectment. There is no tenant hence stereotyped nature of Power of Attorney is also established. The suit filed by the plaintiff deserves to be dismissed with cost in favour of the defendants and against the plaintiff.
10. I have given my thoughtful consideration to the rival contentions and also perused the record with the able assistance of the Ld. Counsels. The plaintiff has examined himself as PW1 and has deposed to the effect that the plaintiff is the owner of property bearing No.B34, Abul Fazal Enclave, PhaseIII, New Delhi having purchased the same from its erstwhile owner, Mr. Aslam Parwez on Agreement to Sell and Power of Attorney basis executed in favour of the plaintiff on 28.05.1992. The property comprises of two bedrooms, living room, two toilets, kitchen and open space, built on a plot of 505 Sq. yards. The defendant No.1 is the daughter of the plaintiff from his first marriage and defendant No.2 is his soninlaw and husband of defendant No.1. The plaintiff is a permanent resident of Hagen, Germany used the property for his and his family, stay whenever he visited India. In the year 1995, he permitted a family friend, Mr. Ataurahman Quasmi and his family to reside in the property. The said Ataurahman Quasmi stayed the property till the CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 15 of 39 year, 2000 and thereafter vacated the same. From the year 2000 to 2003, the same was used by the plaintiff, whenever he visited India and by his brother, Noor Alam and his family, whenever they visited Delhi from their home town in Bihar. Defendant No.1 had been studying outside Delhi during this period and also used to live in the property as and when, she visited in Delhi. The defendants got married in March, 2003 and since they did not have any accommodation to stay after marriage, defendant No.1 requested the plaintiff and plaintiff on her request, allowed defendants to live in the property till the defendants found a place of their own to live. As the defendants were his daughter and soninlaw, the plaintiff did not charge anything from them for use and occupation of the property. Plaintiff, however, continued to live in the property as and when he visited India. The defendants had sought permission and plaintiff had permitted them to stay for a short period, till they arranged for other place of their own to live, defendants continued to stay in the property inspite of the fact that the plaintiff had been asking them to vacate the same from time to time, but to no avail. In August 2010, plaintiff wrote to defendant No.1 calling upon her to vacate the property as he intended to sell the same. He, however, gave an option to the defendant No.1 to purchase the same by notifying him in writing her intention in this regard. Plaintiff also put her to notice to move out of the property in the next 2 to 3 months. Defendant No.1 and her husband are as such, an illegal and unauthorized use and occupation of the property. They are also liable to pay damages for use and occupation of the same @ Rs.25,000/ p.m. In view of the CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 16 of 39 relationship between the parties, plaintiff is not claiming arrears for the use and occupation of the property and restricting his claim for damages w.e.f. the date of filing of the suit.
11. The plaintiff besides himself has also examined Aslam Parvez the person from whom the plaintiff has allegedly purchased the property by way of GPA, Agreement to Sell as PW2 who has deposed to the effect that he was the owner of property bearing no. B 34, Abul Fazal Enclave, Jamia Nagar, Okhla admeasuring 500 sq. yards consisting of two bed rooms, living room, two toilets, kitchen and open space, built on a plot of 505 sq. yards and that he had executed agreement to sell dated 28.05.1992 and general power of attorney dated 28.05.1992 in favour of Dr. Sadre Alam, the plaintiff in the present suit and has identified his signatures on the documents exhibited as Ex.PW2/1, Ex.PW2/2 as well as Ex.PW1/1 and Ex.PW1/2. The witness has further deposed that at the time of sale of the suit property, he had received a sum of Rs.10 lacs in cash for which he had executed receipt dated 28.05.1992 and has also identified his signatures on the receipt which is given exhibit No.Ex.PW2/3 as well as Ex.PW1/3. The witness has also deposed that the documents were duly notarised and he had also executed an affidavit dated 28.05.1992 confirming that he had sold the suit property by execution of agreement to sell dated 28.05.1992 and irrevocable GPA dated 28.05.1992 and has tendered the affidavit as Ex.PW2/4. The witness has further deposed that on receipt of entire sale consideration, he had handed over vacant and physical possession to Dr. Sadre Alam and he had never met or dealt with Ms. CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 17 of 39 Saba Alam. The witness has further denied that he had any dealing with Saba Alam with respect to the suit properly or that he had executed any document/documents especially power of attorney dated 08.05.1992 and agreement to sell dated 08.05.1992, Will date 08.05.1992, receipt dated 08.05.1992 in favour of Ms. Saba Alam. The certified copies of the document are stated to not bear the signatures of the witness. The witness has deposed that the signatures on the said documents are not his signatures. It is pertinent that the documents are executed by Sh. Aslam Parvez for himself and on behalf of Mrs. Surriya Parveen, Abdul Hafiz, Taj Sayyed, Abdul Wahid as their realeasee under a relinquishment deed.
The defendant no.1 on the other side has stepped into the witness box as DW1 and has deposed to the effect that the plaintiff is not the owner of the property in question and he has no interest, right or authority in the suit property in any manner whatsoever, and the plaintiff cannot be allowed to claim his title over and immovable property based on GPA, Agreement to sell, affidavit and deed of Will on which the plaintiff has relied while the defendant is the undisputed owner of the suit property. That whenever the plaintiff visited India he always stayed at hotels usually at LeMeridian, Hayatt and Holiday Inn. The family friend Mr. Ataur Rehman Quasmi and his family used to reside in the suit property but was permitted to do so by the defendant and he vacated the same in the year 2000 handing over peaceful physical possession of the suit property to the defendant. There arises no question of recovering any charges from the defendants for the user and occupation of the property as the plaintiff CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 18 of 39 is not the owner of the suit property. There also arises no question of the plaintiff calling upon the defendant to vacate the suit property or to give an option to the defendant to purchase the same, as the plaintiff has no right, title or interest in the suit property and is a stranger and outsider to the property. The plaintiff has cooked up a story for the purposes of institution of the suit and has manufactured and fabricated documents with the ulterior motive to grab the suit property which virtually belongs to the defendant. The evidence and deposition of PW2, Aslam Parvez is produced by the plaintiff for and on his behalf which is false and his deposition cannot be relied upon as he has fabricated documents and deposed falsely at the instance of the plaintiff after receiving financial consideration for deposing in his favour. He has committed fraud by having executed various documents in respect of the suit property in favour of two different persons. As a matter of fact, he had not executed any document in favour of the plaintiff in respect of the suit property but has executed the same in favour of defendant in respect of the suit property.
The defendants have also examined one Mohd. Aslam stated to be the witness to the GPA, Agreement to sell, possession letter and receipt dated 08.05.1992. The witness examined as DW2 has deposed that he is one of the witnesses to the GPA, agreement to sell, Will, possession letter, receipt dated 08.05.1992 which have been executed by Sh. Aslam Parvez who was the erstwhile owner of the property in question in favour of Saba Alam, daughter of Dr. Sadre Alam in respect of property bearing noB34, Abul Fazal Enclave, PhaseIII, New Delhi. The witness has further deposed that CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 19 of 39 Saba Alam had paid a sum of Rs.10,65,000/ to the erstwhile owner namely Aslam Parvez as per agreement to sell dated 08.05.1992 for which separate receipt was executed and the said consideration amount had already been accepted and acknowledged by its erstwhile owner in the presence of the witness. DW2 has further deposed that the erstwhile owner had also given vacant and physical possession of the said property to Saba Alam vide separate possession letter executed by him in favour of Saba Alam dated 08.05.1992 in his presence and the GPA was signed by the erstwhile owner namely Aslam Parvez in his presence and that Aslam Parvez and Saba Alam and other witness have also signed agreement to sell in his presence as well as the possession letter and the receipt. DW2 has also deposed that the erstwhile owner handed over the sale documents in respect of the said property to Saba Alam in his presence and that by virtue of sale documents, Saba Alam has become the absolute and lawful owner of the suit property and she has been in peaceful and lawful possession of the same.
12. From the pleadings of the parties and the oral and documentary evidence what emerges is that the plaintiff is claiming to be the owner of the suit property having purchased it from one Sh. Aslam Parvez on a set of documents not being a registered sale deed and the defendant no.1 also claims to be the owner of the suit property having purchased it from the same Sh. Aslam Parvez not being a registered sale deed. In respect thereof, issues no.1 and 2 have been framed and the onus to prove issue no.1 is on the defendant and in respect of issue no.2, the burden of proof lies on the CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 20 of 39 plaintiff. The plaintiff to discharge this burden has tendered into evidence the documents in original i.e. agreement to sell dated 28.05.1992, power of attorney, receipt and affidavit of the same date executed by Sh. Aslam Parvez in favour of the plaintiff. Besides tendering the documents in original, the plaintiff has also examined Sh. Aslam Parvez from whom the property is stated to have been purchased by the plaintiff. Sh. Aslam Parvez is recognized and admitted by both the parties to be the owner of the suit property as both the plaintiff and the defendant claim titled through him. Sh. Aslam Parvez as PW2 has admitted of the due execution of the documents i.e. agreement to sell, power of attorney, receipt and affidavit and in favour of the plaintiff has infact tendered the documents in his evidence. Once the plaintiff has produced the documents in original as well as the executant of the documents on oath stating that the documents were executed by him in favour of the plaintiff, the initial burden of proving issue no.2 is discharged by the plaintiff. It was now for the defendant who had questioned the genuineness of the documents and that the documents are fabricated to have shown that the documents do not bear the signatures of the purported executants. No such evidence has been led. The defendant has raised suspicion on the credibility of PW2 on the ground that PW2 has executed several sets of documents in favour of different persons and therefore he a witness unworthy of any credit. The Ld. Counsel has referred to the following portion of the cross examination to shake the creditworthiness of PW2: "...Q. Please specific how many number sets of documents, you CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 21 of 39 have executed with respect to property in dispute and whose favour.
A. I do not remember as to how many documents have been executed. I have sold only this property and have not sold an other property during that time.
I have executed the documents in favour of Dr. Sadre Alam only.."
13. It is pertinent that the documents pertain to the year 1992 and the witness is deposing with respect to the documents in the year 2015 and the court is also mindful of the fact that it is not one single document i.e. a registered sale deed executed in respect of the suit property in favour of a party but a set of documents consisting of agreement to sell, GPA, Will, receipt, affidavit. Considering the circumstances if the witness is not in a position to remember that exactly what number of documents was executed in respect of the suit property, does not impeach the reliability of the deposition where the witness in the next breath has deposed that he has executed documents in respect of the suit property only in favour of the plaintiff. The defendant has tendered into evidence another GPA which is a registered document executed by Sh. Aslam Parvez in favour of the plaintiff to show that the witness is executing various sets of documents in favour of different persons. When the GPA which is tendered into evidence by the defendant, is again a GPA in favour of the plaintiff and the witness has deposed that he has executed documents in respect of the suit property only in favour of the plaintiff, in my considered opinion, there is no contradiction warranting any suspicion being cast on the creditworthiness of the witness. The defendants have not shown to have approached the authorities for legal recourse if Sh. Aslam Parvez had executed CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 22 of 39 documents in favour of the plaintiff after executing documents in respect of the suit property in favour of the defendant no.1 which would have been an expected normal human conduct in such circumstances.
The plaintiff on the basis of oral and documentary evidence has successfully established that Sh. Aslam Parvez had agreed to sell the property to the plaintiff and taken a consideration of Rs.10,00,000/ from him towards the purchase of the suit property. The plaintiff has further proved the due execution of the documents i.e. agreement to sell, GPA, receipts, in favour of the plaintiff by Sh. Aslam Parvez. It is pertinent that the documents are executed by Sh. Aslam Parvez for himself and on behalf of Mrs. Surriya Parveen, Abdul Hafiz, Taj Sayyed, Abdul Wahid as their realeasee under a relinquishment deed. It is pertinent that the documents are executed by Sh. Aslam Parvez for himself and on behalf of Mrs. Surriya Parveen, Abdul Hafiz, Taj Sayyed, Abdul Wahid as their realeasee under a relinquishment deed.
Issue no.2 is decided in favour of the plaintiff.
14. The defendant no.1 also claims to have purchased the suit property from Sh. Aslam Parvez (PW2) who is stated to have executed documents such as GPA, Agreement to sell, and receipts in favour of defendant no.1 for a total consideration of Rs.10,65,000/ tendered into evidence as Ex.DW1/1, Ex.DW1/2, DW1/3, DW1/4, DW1/5 and DW1/6 the purported executant of these documents has denied the execution of any such documents in favour of defendant no.1. The purported executant on oath as PW2 has denied his CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 23 of 39 signatures on Ex.DW1/1 to Ex.DW1/6. Once the signatures were denied by the purported executant himself, it was incumbent upon the defendant no.1 to have proved that the signatures on the documents are of the person they are stated to be. No such evidence has been led.
As per the defence set up by the defendants in their written statement, the defendants in preliminary objection no.(K) have stated that the defendant no.1 is in user, enjoyment of the suit property by virtue of a notarized general power of attorney. The relevant paragraphs are reproduced as under: "....The defendant no.1 has been in user, enjoyment and possession of the suit property by virtue of the Notarized General Power of Attorney thereby she became the lawfully recognised owner of the property..."
15. In para 9 of the written statement of reply on merits, the defendant submits that the suit property virtually belongs to them. The relevant portion is reproduced as under: "..It is submitted that the answering defendants are in lawful, occupation, possession, user and enjoyment in the property in question since the same virtually belong to them..."
16. Throughout the pleadings, the defendant no.1 has failed to aver that Sh. Aslam Parvez had agreed to sell the suit property to the defendant no.1 for a valuable consideration of Rs.10,65,000/ and had executed agreement to sell, GPA, receipt, affidavit, Will dated 08.05.1992. Only the notarized GPA is introduced in paragraph K without setting out the date. In the affidavit of defendant no.1 tendered by way of examination in chief, the defendant no.1 in para 1 has claimed that she is the 'undisputed owner of the suit property'. How has defendant no.1 become the undisputed owner of the suit CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 24 of 39 property has not been explained. Again in paragraph 5, the defendant no.1 on oath deposes that it is the defendant no.1 'who is the actual, absolute and lawful owner of the suit property', without disclosing as to by what mode the defendant no.1 has become the actual, absolute and lawful owner. Similar statement is contained in para 7 that defendant no.1 'is absolute and lawful owner of the suit property' without any further details. In para 9, the defendant no.1 has deposed as under: "..As a matter of fact, the said Aslam Parvez PW2 has not executed any GPA or receipt in favour of the plaintiff in respect of the suit property but executed the same in favour of deponent in respect of the suit property..."
17. Thereafter in para 10 of the affidavit, the defendant no.1 has introduced the documents exhibited as Ex.DW1/1 to Ex.DW1/6. A specific issue, issue no.1 has been framed in the present suit as to whether Sh. Aslam Parvez had agreed to sell the suit property in favour of defendant no.1 and had executed agreement to sell, GPA, receipt, Will, possession letter, and had taken a consideration of Rs.10,65,000/. The necessary facts were required to have been pleaded that Sh. Aslam Parvez had agreed to sell the suit property for a valuable consideration and had executed the various documents upon payment of the total sale consideration. There is no pleading to this effect and the defendant no.1 in her examination in chief has also not deposed to the due execution of any agreement to sell but has introduced the document without pleadings and without deposition to this effect.
Further, the agreement to sell Ex.DW1/1 is stated to have CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 25 of 39 been executed on 08.05.1992. The defendant no.1 got married in the year 2003 and at the time of the execution of the purported documents, the defendant no.1 was a student of intermediate class. The defendant no.1 joined MBBS Course in the year 1996 and before 1996, she was preparing for medical entrance examination and did not work anywhere and had no source of income. The relevant portion of the cross examination is reproduced: "..At the time of execution of these documents, I was student of intermediate class. I joined MBBS in the year 1996. Before 1996, I prepared for the medical entrance examination. At that time, I did not work anywhere. I do not have any source of income at that time. I decided to live in Delhi. Therefore, I entered into an Agreement to Sell of the Property, at the suggestion of Mr. Ataurrehman Qasmi. I was told by Mr. Ataurrehman Quasmi that the property was being sold. The entire dealing with respect to this property was made by uncle, Mr. Noor Alam and Ataurrehman Quasmi. All the documents were signed on the same day.."
18. Therefore, it is established that defendant no.1 of her own had no funds to purchase the suit property for a consideration of Rs.10,65,000/. The defendant no.1 has volunteered a statement that the sale consideration was financed by her maternal grandmother and some amount was contributed by her father. However, in the entire body of the pleadings and even her affidavit, the defendant no.1 has not stated as to how was the purchase of the suit property financed. This voluntary statement is therefore clearly an afterthought. The defendant no.1 has examined one Sh. Mohd. Aslam stated to be the attesting witness to Ex.DW1/1 to Ex.DW1/6 however, in the course of cross examination, DW2 has stated that the deal was not finalised before him and the documents relating to the property were signed by CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 26 of 39 him, Aslam Parvez, Ali Hasan and Saba Alam. However, a perusal of the documents reveals that Ex.DW1/1 is not signed by Ali Hasan or Saba Alam and Ex.DW1/4 bears the signatures of Ali Hasan and Mohd. Aslam but does not bear the signatures of the testators. Further Ex.DW1/5 is not signed by Ali Hasan as also Ex.DW1/6.
19. From the above discussion, as the purported executant has denied the execution of Ex.DW1/1 to Ex.DW1/6 the signatures are not proved to be of Sh. Aslam Parvez and the foundational facts pertaining to Ex.DW1/1 to Ex.DW1/6 have not been pleaded in the written statement and are also not contained in the deposition on oath of defendant no.1, and the defendant no.1 has not shown the source of funds for the consideration, I have no hesitation in arriving at the conclusion that the defendants have failed to prove that Sh. Aslam Parvez had agreed to sell the suit property for a valuable consideration of Rs.10,65,000/ and had executed a GPA, Agreement to sell, receipt, possession letter, Will in favour of the defendant no.1 after receiving the entire sale consideration. Issue no.1 is decided against the defendants.
20. The Ld. Counsel for the defendants has vehemently argued that the suit for possession on the basis of agreement to sell, GPA, receipt, possession letter, Will etc. is not maintainable and no title can be stated to have come to vest in the plaintiff by virtue of these documents in view of the judgment of Hon'ble the Supreme Court of India rendered in the case of Suraj Lamps Vs. State of Haryana. Ld. Counsel has also submitted that no interest in the suit property can be stated to have been transferred by virtue of the aforestated documents CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 27 of 39 and if the agreement to sell was coupled with putting the plaintiff in possession, it ought to have been registered and as the agreement to sell is not a registered document, it cannot be read into evidence for any purposes whatsoever. The Hon'ble Supreme Court has come down heavily on such sham transactions affecting immovable property with a view to avoid the payment of stamp duty. Ld. Counsel for the plaintiff, on the other hand, has relied upon the judgment of the Hon'ble High Court of Delhi rendered in Laxman Singh Vs. Urmila Devi to impress upon the contention that the judgment of Hon'ble the Supreme Court in Suraj Lamps is prospective in its operation and does not affect the transactions entered into before the date of the judgment and therefore no registration was required and title has vested in the plaintiff by virtue of the aforestated documents.
21. Transfer of property under the Transfer of Property Act is defined as under:
5. "Transfer of property" defined. In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, [or to himself] and one or more other living persons; and "to transfer property" is to perform such act.
In this section "living person" includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the same time being in force relating to transfer of property to or by companies, associations or bodies of individuals.
22. Title in a property movable or immovable is conveyed by way of sale of the property. Sale is defined as a transfer of ownership in exchange for price paid or promised or part paid and part CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 28 of 39 promised. Section 54 of the Transfer of Property Act embodies the definition of 'Sale'.
54. "Sale" defined. "Sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part promised.
Sale how made. Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale. A contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not of itself, create any interest in or charge on such property.
23. Title in immovable property therefore may be conveyed from one person to another by way of execution of a sale deed alone. An agreement to sell or a contract for sale of immovable property is an agreement or a contract that a sale of such property shall take place on terms agreed upon between the parties to the agreement. An agreement to sell of its own does not create any interest in the immovable property which is the subject matter of the agreement to sell in favour of the person who is stated to have agreed to purchase the said immovable property as per the settled terms. However, when the execution of agreement to sell is coupled with any act in furtherance of agreement to sell as in when the proposed purchaser is put in possession by the proposed vendor of the immovable property, CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 29 of 39 the proposed purchaser acquires an interest in the immovable property which is the subject matter of the agreement to sell without the execution of the sale deed. Section 53 A insinuates upon that interest which is acquired by the proposed purchaser under an agreement to sell over the immovable property. Section 53 A is reproduced hereunder: 53A. Part Performance. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract;
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract of the part performance thereof.]
24. Suit for possession therefore, is maintainable at the instance of the proposed purchaser under an agreement to sell when in part performance of the agreement to sell, the proposed purchaser is put in possession of the immovable property which is the subject matter of the agreement to sell. Law empowers the proposed CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 30 of 39 purchaser so put in possession to protect his possession even against the true owner of the immovable property or the proposed vendor. In common parlance and in jurisprudential terms, such interest in immovable property is referred to as 'possessory title'. Possession carries with it the claim to possession and not to be interfered with until someone else establishes a superior title. Under Section 5 of the Specific Relief Act, a person entitled to possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure i.e. by way of institution of civil suit u/s 8 of the Code of Civil Procedure.
Adverting to the facts and circumstances of the case, agreement to sell and various other documents referred to as title documents were executed on 28.05.1992 by Sh. Aslam Parvez in favour of the plaintiff. That title in the suit property vested in Sh. Aslam Parvez and that he was therefore competent to convey his title and transfer the ownership in the suit property in favour of another is not disputed and is the admitted position as the defendant no.1 also claims that the same Sh. Aslam Parvez had executed various 'title documents' in favour of the defendant no.1. Sh. Aslam Parvez has been examined by the plaintiff as PW2 who has admitted to the due execution of the agreement to sell and various other documents in favour of the plaintiff and has also deposed that possession of the suit property was handed over to the plaintiff. Therefore, the plaintiff on the basis of oral and documentary evidence, particularly, the deposition of PW2 has established that in part performance of the agreement to sell, the plaintiff was put in possession. The plaintiff CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 31 of 39 therefore is entitled to institute the suit for recovery of possession of the suit property in respect of which an agreement to sell was executed on 28.05.1992 by the admitted previous owner.
25. Another contention raised by the Ld. Counsel for the defendants is that as the agreement to sell was coupled with possession, the document made the basis of the civil action ought to have been a registered document in terms of the judgment of Hon'ble the Supreme Court in Suraj Lamps Case as well as by virtue of the amended provisions of the Registration Act. I am unable to agree with the contention raised by the Ld. Counsel for the defendant. Only where the action to recover possession is brought by the proposed vendor against the proposed vendee and the proposed vendee claims to be in possession of the immovable property in part performance of the agreement to sell that it is the mandate of the statute i.e. Section 17 1A of the Registration Act that the agreement to sell ought to be a registered document in order to be received in evidence on behalf of the proposed vendor as the defendant in such an action. Section 17 1A pertains to Section 53A of the Transfer of Property Act where the proposed vendee is put in possession in part performance of an agreement to sell and the suit is instituted by the proposed vendor against the proposed vendee. Where a proposed vendor under an agreement to sell brings an action to recover possession of the immovable property which is the subject matter of an agreement to sell, the agreement to sell is not required by law to be compulsorily registered in order to be admissible in evidence. Section 17 (1A) of the Registration Act is reproduced hereunder: CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 32 of 39 [(1A)The documents containing contracts to transfer for consideration any immovable property for the purpose of Sec. 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, then, they shall have no effect for the purposes of the said Sec. 53A.]
26. Further the provision has been incorporated by way of an amendment with effect from 24.09.2001 and the statute is prospective in its application and not retrospective and therefore would have no bearing on the agreement to sell executed on 28.05.1992. One important fact to be taken note of in the present suit is that under the agreement to sell Ex.PW1/1 and Ex.PW2/1, it is documented by the parties that the sale deed in respect of the property the subject matter of the agreement to sell shall be executed as and when it becomes admissible. The relevant clause 5 of the agreement to sell is reproduced hereunder: "...That the first party will complete all the formalities for transfer of the said property in favour of the second party as and when permissible.."
27. In the facts and circumstances of the present case therefore, the judicial pronouncement of the Hon'ble Supreme Court rendered in Suraj Lamps Case is not applicable as the court is not seized with a declaration of title over the suit property on the basis of an agreement to sell. It is a settled proposition of law that title in immovable property can be passed only by way of a registered sale deed and no other modality is acceptable which would be an attempt to defeat the provisions of law.
28. In view of the aforestated discussion, the plaintiff is held CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 33 of 39 entitled to maintain the present suit for recovery of possession of the suit property on the basis of the agreement to sell and other documents tendered in to evidence as Ex.PW1/1 to Ex.PW1/3 and also Ex.PW2/4. The defendants have failed to establish the execution of agreement to sell and other documents in respect of the suit property in their favour and issue no.1 has been decided against the defendants. The defendants have failed to establish the existence of any right, title or interest over the suit property in their favour. It is the case of the plaintiff that the defendants being the daughter and son in law of the plaintiff were entered into permissive possession as licensees and had promised to vacate the suit property shortly at the earliest as and when a suitable accommodation is found by them. The plaintiff wrote letters in August, September and October 2010 calling upon the defendants to hand over the vacant physical possession of the suit property to the plaintiff and after the receipt of these letters the continued possession by the defendants thereafter is illegal and unauthorized and for the user and occupation thereof, the defendants are liable to pay mesne profits. The defendants had claimed that the defendant no.1 was put in possession by the predecessor in interest, Sh. Aslam Parvez who had sold the property to defendant no.1 upon execution of various documents including GPA and upon transfer of consideration. The defendants have denied that they were put in permissive possession by the plaintiff and continued in possession only as licensees. As the findings on issue no.1 have been returned against the defendants and on issue no.2 in favour of the plaintiff, the issue no.3 is also decided in favour of the plaintiff and the defendants CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 34 of 39 are held to be in possession over the suit property in their capacity as the licensees of the plaintiff and have no right, title or interest over the suit property. The plaintiff entitled to the right to possess the suit property under the agreement to sell (Ex.PW1/1) can recover possession of the suit property from the defendants who are licensees and the institution of the suit for recovery is a revocation of the license even if no legal notice was served prior in time. The plaintiff is held entitled to recover possession of the suit property from the defendants and issue no.4 is accordingly decided in favour of the plaintiff.
29. Issue No.5: (5) Whether the plaintiff is entitled to damages for use and occupation and if so to what rate and to what amount? OPP
30. It is the case of the plaintiff that the suit property was purchased by the plaintiff from Sh. Aslam Parvez by way of agreement to sell, GPA, and receipt and he was put in possession by Sh. Aslam Parvez over the suit property and affidavit to this effect was also executed by Sh. Aslam Parvez. The plaintiff has successfully established the execution of the agreement to sell and various other documents in his favour by Sh. Aslam Parvez. It is the case of the plaintiff that the defendants got married in March, 2003 and since they did not have any accommodation to stay after marriage, defendant No.1 requested the plaintiff and plaintiff on her request, allowed defendants to live in the property till the defendants found a place of their own to live. As the defendants were his CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 35 of 39 daughter and soninlaw, the plaintiff did not charge anything from them for use and occupation of the property. Plaintiff, however, continued to live in the property as and when he visited India. The defendants had sought permission and plaintiff had permitted them to stay for a short period, till they arranged for other place of their own to live, defendants continued to stay in the property inspite of the fact that the plaintiff had been asking them to vacate the same from time to time, but to no avail. In August 2010, plaintiff wrote to defendant No.1 calling upon her to vacate the property as he intended to sell the same. He, however, gave an option to the defendant No.1 to purchase the same by notifying him in writing her intention in this regard. Plaintiff also put her to notice to move out of the property in the next 2 to 3 months. Defendant No.1 and her husband are as such, in illegal and unauthorized use and occupation of the property. They are also liable to pay damages for use and occupation of the same @ Rs.25,000/ p.m. In view of the relationship between the parties, plaintiff is not claiming arrears for the use and occupation of the property and restricting his claim for damages w.e.f. the date of filing of the suit.
The defendants had also set up right, title and interest in the suit property on the strength of GPA and other documents stated to have been executed by Sh. Aslam Parvez however, the defendants failed to establish the execution of these documents in respect of the suit property in favour of defendant no.1 by Sh. Aslam Parvez. Defendants are admitted to be married in March, 2003, however, it is denied by the defendant that the plaintiff allowed the defendants to CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 36 of 39 live in the property till the defendants found place of their own as the plaintiff is not the owner of the property and there arises no question of charging anything from the defendants for the usage and occupation of the property. It has also been denied that the defendants had sought permission to stay for a short period and it is alleged that there is no question of the plaintiff asking the defendants to vacate the property from time to time as the plaintiff has no right and title in the property. It is also denied that the plaintiff had given an option to defendant No.1 to purchase the property from him. It is denied that the defendant No.1 and her husband are in illegal and unauthorised occupation of the property and it is contended that the defendants are in lawful usage, possession and enjoyment of the property as the property virtually belongs to them, therefore there arises no question of any damages or mesne profit as the plaintiff has no right, title or interest in the property.
Ld. Counsel for the plaintiff has contended that as the defendants failed to deny the rate of mesne profits alleged by the plaintiff therefore the rate is deemed to be admitted and no question has been put in the course of cross examination to PW1 that the rate of mesne profits as alleged by the plaintiff is not the prevalent market rate and therefore no further proof in respect of the rate of mesne profits claimed is required to be led. I am unable to accept the contention of the Ld. Counsel. As the rate of mesne profits was being claimed by the plaintiff, the onus was cast upon the plaintiff to lead documentary evidence to the effect that the rate claim is the prevalent market rate. No comparative instance has been filed.
CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 37 of 39It is the case of the plaintiff that the defendants were put in permissive possession by the plaintiff as the owner considering that the defendants are the daughter and son in law of the plaintiff and they continued in possession as licensees of the plaintiff till the termination of the license by way of a letters sent in August, September and October 2010 and thereafter the occupation of the defendants became illegal and unauthorized and for the user and occupation of the suit property, the defendants are liable to pay mesne profits and the claim in the present suit is being restricted to the period pendente lite till the handing over the vacant physical possession of the suit property by the defendants to the plaintiff. No legal notice is proved to have been issued terminating the license. The defendants are the daughter and son in law of the plaintiff entered into permissive possession by the plaintiff and were staying together as and when the plaintiff used to come to Delhi from Germany. The defendants claimed to be in possession as owners and a specific issue was framed as to whether documents such as agreement to sell, GPA, were executed in favour of the defendants in respect of the suit property. Upon trial, the issue has been decided against the defendants. As the defendants were litigating on the strength of documents which upon trial, the defendants were unable to establish the defendants are not liable to pay any mesne profits for the user and occupation of the suit property pendente lite.
The plaintiff is therefore held not entitled to recover any mesne profits from the defendants for the user and occupation of the suit property pendente lite. Issue no.5 is decided against the plaintiff.
CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 38 of 3931. Relief.
32. In view of issue wise findings above, the suit of the plaintiff for recovery of possession and mesne profits is decreed in part. Decree of possession is passed in favour of the plaintiff and against the defendants in respect of property described as bearing No.B34, Abul Fazal Enclave, PhaseIII, New Delhi. The defendants are directed to hand over peaceful, vacant, physical possession of the property described as bearing No.B34, Abul Fazal Enclave, Phase III, New Delhi to the plaintiff within a period of 2 months from the date of the decree. The plaintiff is held not entitled to any damages/mesne profits as claimed.
Parties are left to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to the record room.
Pronounced in the open Court (Neelofer Abida Perveen) st on this 31 August, 2016. Addl. District Judge04, SouthEast, Saket Court, New Delhi.
The judgment contains 39 pages all checked and signed by me.
CS No.444/2016 Dr. Sadre Alam V/s Mrs. Saba Alam & Anr. Page 39 of 39