Delhi District Court
Sh. Mussarat Hussain @ Mohd. Ali Zaidi vs Sh. Mohd. Abbas on 4 July, 2020
In The Court of Sh. Sanatan Prasad,
Additional District Judge01, (East),
Karkardooma Courts, Delhi.
Suit No.3286/2016
In the matter of :
Sh. Mussarat Hussain @ Mohd. Ali Zaidi,
S/o Sh. Hidayat Hussain,
R/o H.No.34/188, Block No.34,
Trilok Puri, Delhi110091. .....Plaintiff.
Versus,
Sh. Mohd. Abbas,
S/o Sh. Zahiruddin,
R/o H.No.32/493,
Trilok Puri, Delhi110091. .....Defendant.
Date of Institution : 26.09.2016.
Date of Reserving Order : 01.02.2020.
Date of Decision : 04.07.2020.
Suit For Possession, Declaration, Permanent Injunction And
Mesne Profit/Damages.
Present : Sh. Ashish Verma, Ld. Counsel for plaintiff.
Sh. M.R.Farooqui, Ld. Counsel for defendant.
JUDGMENT
1. Brief facts, of the case, relevant, for the disposal, of the present suit, appear that plaintiff, claims himself to be lawful owner/allottee of the property, bearing No.32/493, Trilok Puri, Delhi110091, measuring 25 sq. yards, as same was allotted to him by Municipal Corporation of Delhi, on 15.01.1977, in lieu of previously owned plot by him, at Rashid Market, Ganesh Park, Delhi110051, vide receipt No.W17342 and possession slip No.U Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.1 of 26 4669, dated 15.01.1977, (hereinafter called the 'Suit Property'), more specifically, shown in red colour in annexed site plan and after allotment of the suit property, the plaintiff had constructed thereupon, one room on front side with attached bathroom, latrine and kitchen and one room on the backside on the ground floor, in the year 1977 and had raised further constructions on the first and second floors, comprising the same construction, as on the ground floor, in the year 1988 and accordingly, the construction work was completed by the plaintiff from his own funds in the year 1988, however, the plaintiff started residing with his family members in the suit property uptill May, 1991 and thereafter, he shifted to another property at Tilak Marg, New Delhi, till the year 2008.
2. It is averred, that the plaintiff handed over the keys of the suit property to his brother Sh. Maniruddin Ali Zaidi, to look after the same, in the year 1991. On 13.02.2010, plaintiff lost his one leather bag, containing the following documents : 1) Passport No.A1759160; 2) Pan Card No.AAGPZ387B; 3) The documents of mobile No.98185567895; 4) Possession slip in respect of plot No.32/493; Trilok Puri, Delhi110091; 5) Receipt at Sr. No.W17432; 6) Receipt No.U4669150101997; 7) Possession Slip in respect of plot No.32/392, Trilok Puri, Delhi110091, in the name of Smt. Amir Begum, W/o late Sh. Hidayat Hussain; 8) Receipt No.W17340; 9) Possession Slip No.U4688/15.01.1977;
10) Possession Slip No.W17341 and U6475/15.01.1977, in respect of property No.32/499, Trilok Puri, Delhi110091, in the name of Smt. Shagufta Begum, D/o late Sh. Hidayat Hussain, and Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.2 of 26 same have not been located and traced, despite best efforts and diligence, by the plaintiff and accordingly, he lodged an NCR/FIR, dated 15.02.2010 with the Police Station, Mayur Vihar PhaseI, Delhi, but in vain and prior to this, the elder brother of the plaintiff, namely, Sh. Maniruddin expired in January, 2008.
3. It is also, stated that vide application, dated 24.03.2009, plaintiff sought information from Slum & J.J. Department, also from MCD, under RTI Act, 2005, vide ID No.2877/08, dated 05.01.2009, in respect of the suit property and in response thereto, it was informed, vide information, dated 27.01.2009 that the suit property was allotted to the plaintiff, vide receipt No.U4669, dated 15.01.1977 and according to the said report, the defendant was found residing in the suit property and nothing was deposited by him towards the suit property, then, the plaintiff got shocked and perturbed to note that the defendant has been occupying the suit property without any right, interest or title, in respect of the suit property, for last about 11 years and has also been in unauthorized and illegal possession of the suit property, accordingly, the plaintiff met the defendant several times and requested him to handover vacant and peaceful possession of the suit property, but on one pretext or the other, the defendant neither vacated the suit property, nor handedover the vacant and peaceful possession of the same to the plaintiff. The plaintiff has, therefore, assessed the compensation/damages/mesne profits @ Rs.6000/ per month on this account and till the time the defendant remains in unauthorized possession of the suit property.
Suit No.3286/2016Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.3 of 26
4. It is further, stated that the defendant, many a times, threatened the plaintiff to create third party interest or part with possession of the suit property, without any right or interest, whatsoever, and this threat was given on 27.09.2012, further, the defendant refused to vacate and handover peaceful and vacant possession of the suit property, accordingly, plaintiff sent a legal notice, dated 06.09.2012, to the defendant, thereby, demanding vacant and peaceful possession of the suit property, also to pay mesne profits/damages, but in vain. Thereafter, the plaintiff had filed a suit for permanent injunction, possession and future mesne profits/damages, bearing C.S. No.436/2012, against the defendant, notice thereof, was served upon the defendant, who filed an application U/o 7, Rule 11, CPC, claiming, therein, that he is absolute owner of the suit property, having been purchased on 10.05.2006, however, no documents were filed in that suit, thereafter, the plaintiff withdrew the said suit from the Ld. Court of Sh. Dharmender Rana, ASCJ, East, KKD Courts, Delhi, with the liberty to file a fresh suit before the appropriate forum, vide order, dated, 20.01.2015 and prayer in the present suit is made for passing of a decree of possession, in respect of suit property, bearing No.32/493, Trilok Puri, Delhi110091, shown in red colour in the annexed site plan; Also, decree of declaration, thereby, declaring all the documents of the suit property, dated 10.05.2006, or any other date, as null and void; Further, decree of permanent injunction, thereby, restraining the defendant, his agents, servants, associates, assigns, etc. from selling, transferring, alienating, Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.4 of 26 parting with possession or creating third party interest in the suit property; And decree of damages/mesne profits @ Rs.6000/ per month from the date of institution of suit and till recovery of possession with costs of the suit.
5. Summons of the suit were served on the defendant and it appears that there is a written statement, filed by the defendant, duly verified by him. The defendant has contested the suit and in the written statement, preliminary objections, to the suit, have been taken, on the grounds of concealment of true facts, nonexistence of cause of action, also for want of proper court fees, even suit being, hopelessly time barred and also on other counts. It is averred, that the plaintiff himself executed General Power of Attorney, dated 08.03.1983, in respect of the suit property, in favour of one Sh. Muniruddin, besides, handing him over admittedly peaceful vacant possession thereof, who inturn executed further conveyance thereof, in favour of the predecessor ininterest of the defendant on 10.02.1987 and handed over the peaceful vacant possession, thus, the plaintiff was estopped by his declaration, act and omission, intentionally caused and permitted the defendant and his predecessorininterest to believe that property was conveyed to them and now, by present suit, the plaintiff cannot backtrack therefrom. The suit has been filed for possession, declaration, mesne profit and permanent injunction, however, proper court fees have not been paid. Admittedly and purportedly, the suit property was handed over to Sh. Muniruddin in the year 1991, (however, actually, it was in 1983), who had Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.5 of 26 executed sale documents in favour of the predecessorininterest of the defendant in the year 1987. Therefrom, a span of altogether 25 years have already been passed, (though, it appears to be 33 years from the date of execution of the irrevocable power of attorney in favour of said Muniruddin), which constructs adverse possession in favour of the defendant. The plaintiff also cannot seek decree of declaration, as the first instrument pertains to 1983, (wherefrom 33 years have already passed), whereas, the second one pertains to 1987 and even, the deeds, executed in favour of the defendant also pertains to 10.05.2006, wherefrom a time period of more than 10 years have passed, which bars the plaintiff to file the suit. The plaintiff is a habitual litigant and litigates to extort from the different parties, as earlier also, he instituted a suit against the defendant, which fell flat, besides it, he got filed an Eviction Petition through his mother Smt. Amir Begum against one Sh. Shamsher Ali, which was dismissed with a reasoned order by the Ld. Court of Senior Civil JudgecumRent Controller, District Shahdara, Delhi, bearing E.No.193 of 2010, wherein, the petitioner has failed to establish the ownership rights in her purported case against the actual owner. The plaintiff's sister Smt. Shagufta Begum also instituted a suit against Md. Kadir as Suit No.12 of 2013, wherein, inconsistency, in the suit, led to nonprosecution thereof and fell flat vide order, dated 26.10.2015, not assailed yet. Interestingly, all the above cases pertain to adjacent properties in the same locality, which were instituted on the strength of the same FIR, whereby, alleged missing report in respect of the documents Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.6 of 26 of properties, was lodged by the plaintiff, though, the plaintiff had started preparation of filing said case well there before. The plaintiff after selling of the plots, allotted in the name of his relatives, became dishonest, who came to know that rent is due, in respect of the said properties to the Slum and JJ Department of the Municipal Corporation of Delhi and with the intention to earn easy buck of it, he filed RTI application, on 14.01.2009 and in response thereto, he received reply, dated 27.01.2009, wherein, the names of the successorininterest, who were in possession of the respective properties, was described, besides the information that no rent has been deposited in lieu thereof and plaintiff has concocted the story of missing documents and had lodged FIR/NCR No.298/2010 with respect to different properties. Thereafter, the plaintiff, purportedly, tried to deposit the rent to Slum and JJ Department, MCD, vide demand draft No.203125, dated 19.04.2011, which was, eventually, returned back to him, as the plaintiff has failed to gather information that receipt of outstanding licence fee was suspended for all JJR plots in all the JJ colonies of Delhi, which was intimated to him vide department's letter, dated 25.01.2012. The possession slip No.4669, out of Book No.U, dated 15.01.1977, against plot No.32/493, was issued in the name of one Musarrat Hussain and a hutment was constructed and Musarrat Hussain executed duly notarized irrevocable general power of attorney, in favour of Sh. Muniruddin, on 08.03.1983, in respect of said property No.32/493, Trilokpuri, Delhi and further Sh. Muniruddin Ali had executed irrevocable general power of attorney, agreement Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.7 of 26 to sell, receipt and affidavit, all dated 10.02.1987, in favour of Smt. Safiqan, W/o Sh. Mohd. Usman, who raised pucca construction on the said plot and also built ground floor thereon and she further executed irrevocable general power of attorney, agreement to sell, affidavit, receipt, possession letter, Will Deed, all dated 10.05.2006, in favour of the defendant and after acquiring the property, the defendant further builtup one and a half story on and above the construction, raised by his predecessorininterest.
6. On merits, it is averred that the defendant is bonafide owner in possession of the suit property, who has duly paid valuable consideration to the successorininterest of the plaintiff. The plaintiff had already gave up his right, title and interest muchless 33 years back, which, eventually, devolved upon the defendant and by way of the present debauched suit, he cannot petrify the defendant. There was no event for the defendant to threaten the plaintiff, muchless on 27.09.2012. The other averments made in the plaint have been denied and prayer is made for dismissal of the suit with exemplary costs.
7. The plaintiff has also filed replication to the written statement, reiterating therein, the averments, made in the plaint and praying for decretal of the suit.
8. Vide order dated 07.02.2017, following issues were framed :
(i) Whether the plaintiff is entitled to possession of the suit property ? OPP.
(ii) Whether the plaintiff is entitled for declaration to the effect that documents of the suit property, dated 10.05.2006 or other documents relating to the suit property, as null and Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.8 of 26 void ? OPP.
(iii) Whether the plaintiff is entitled to a decree of permanent injunction, as prayed ? OPP.
(iv) Whether the plaintiff is entitled to recover mesne profit and damages of Rs.6,000/ p.m. ? OPP.
(v) Whether the suit is not properly valued for the purpose of court fees ? OPD.
(vi) Whether the suit is barred on the ground of adverse possession ? OPD.
(vii) Whether the suit is barred by limitation ? OPD.
(viii) Relief.
9. In order to prove his case, plaintiff, himself entered, in the witness box, as PW1 and has filed his evidentiary affidavit, proving his signatures, thereon, at points 'A' and 'B', also reiterating, therein his whole case and further tendered his affidavit, as Ex.PW1/A and relied upon the documents i.e. Ex.PW1/1 to Ex.PW1/4, also Mark'A' to 'E'. Ex.PW1/1, is the certified copy of the statement and order, dated 20.01.2015; Ex.PW1/2, is the copy of the application U/o VII, Rule 11, CPC and affidavit; Ex.PW1/3, (OSR), is the attested copy of election I Card of Sh. Mohd. Ali; Ex.PW1/4, is the attested copy of FIR, U/s 155 Cr.P.C., dated 15.02.2010; whereas Ex. PW1/6 is the rough site plan of the suit property; Mark'A', is the certified copy of letter, returning Demand Draft, from Delhi Urban Shelter Improvement Board, dated 25.01.2012; Mark'B', is the certified copy of Demand Draft; Mark'C', is the certified copy of letter, dated 24.02.2009 and Mark'D', is the certified copy of letter, dated 27.01.2009. Mark 'E', earlier numbered as Ex. PW1/5, is the copy of the legal notice dt. 6.9.2012, issued from the plaintiff to the defendant. He has been crossexamined at length by the ld.
Suit No.3286/2016Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.9 of 26 counsel for the defendant and thereafter, PE was closed.
10. In defence, the defendant, himself entered, in the witness box, as DW1 and has filed his evidentiary affidavit, proving his signatures, thereon, at points 'A' and 'B', also reiterating, therein his whole case and further tendered his affidavit, as Ex.DW1/A and relied upon documents i.e. Ex.DW1/1 to DW1/14. Ex.DW1/1, is the copy of the original possession slip No.U4669; Ex.DW1/2, is the copy of the irrevocable general power of attorney, issued by the plaintiff in favour of his brother Sh. Muniruddin, dated 08.03.1983; Ex.DW1/3, is the copy of the agreement, dated 10.02.1987 executed by Sh. Muneeruddin in favour of Safiqan; Ex.DW1/4, is the copy of the general power of attorney, dated 10.02.1987, executed by Sh. Muneeruddin in favour of Safiqan; Ex.DW1/5, is the copy of the receipt, dated 10.02.1987, acknowledged by Sh. Muneeruddin, in respect of receiving of consideration from Safiqan; Ex.DW1/6, is the copy of the affidavit of Sh. Muneeurddin, dated 10.02.1987; Ex.DW1/7, is the copy of the agreement to sell, dated 10.05.2006, executed by Safiqan in favour of defendant; Ex.DW1/8, is the copy of the affidavit, dated 10.05.2006 of Safiqan; Ex.DW1/9, is the copy of the receipt, dated 10.05.2006, issued by Safiqan, acknowledging full and final payment; Ex.DW1/10, is the copy of the possession letter, dated 10.05.2006, issued by Safiqan; Ex.DW1/11, is the copy of the Will Deed executed by Safiqan in favour of the defendant; Ex.DW1/12, is the copy of the registered irrevocable general power of attorney, dated 10.05.2006, executed by Safiqan in favour of the defendant;
Suit No.3286/2016Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.10 of 26 Ex.DW1/13, is the certified copies of the judicial record, pertaining to Eviction Petition No.193 of 2010, titled as Amir Begum v. Shamsher Ali; And Ex.DW1/14, is the certified copies of the record of Civil Suit No.12 of 2013, titled as Shagufta Begum v. Mohd. Kadir. He has been crossexamined at length by the ld. counsel for the plaintiff and DE was closed.
11. I have heard ld. counsels for the parties and carefully, perused the material, available on record, also written arguments/authorities, submitted by the parties and my issue wise findings, are as under : Findings on Issue No.1.
12. This is an issue, to the effect that "whether the plaintiff is entitled to possession of the suit property ?" and onus to prove the same was on the plaintiff and it appears from the perusal of record that plaintiff is claiming himself to be a lawful owner/allottee of the property, bearing No.32/493, Trilok Puri, Delhi110091, measuring 25 sq. yards, allotted to him, by Municipal Corporation of Delhi, on 15.01.1977, in lieu of previously owned plot by the plaintiff at Rashid Market, Ganesh Park, Delhi110051, vide receipt No.W17342 and possession slip No.U4669, dated 15.01.1977 and it also appears that plaintiff has reiterated his version in his affidavit of evidence, i.e., Ex.PW1/A, as stated in the plaint and during the course of his crossexamination PW1 had deposed that it is not true that he had transferred the suit property to his brother Sh. Muneeruddin on 08.03.1983, vide GPA, Ex.P2. He has admitted that said Sh. Muneeruddin resided in the suit Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.11 of 26 property from 08.03.1983 to 10.02.1987, and again said, his brother Sh. Muneeruddin, was residing in the property, bearing No.32/492, Trilokpuri, Delhi, till 1991, when he(PW1), left the suit property. He has denied the suggestion as wrong that his brother Sh. Muneeruddin, further transferred the suit property to Ms. Safikan, on 10.02.1987, on the basis of Ex.P3, P4, P5 and P 6, or that Ms. Safikan for the first time raised pucca construction on the suit property 1987, or that there was no opportunity for him to raise construction on the suit property in the year 1988, as the suit property was possessed by Ms. Safikan, or that he had not stayed in the suit property till 1991, as it was possessed by Ms. Safikan, or that he had filed three different cases on the basis of complaint No.298/10, in respect of loss of papers of property, bearing No.32/493, 32/493 and 32/499. He, voluntarily, deposed that he filed his case and also looking after the case of his mother, which got dismissed, on her death. He was carrying the photocopies of possession slips of his property as well as his mother's property, which he lost them and reported loss thereof, vide NCR No.298/10. During 2008, when he came to live in the area, he found that suit property was possessed by the defendants so he asked them to vacate the same. He had not executed the documents, i.e., Agreement Ex.P3, GPA Ex.P4, Receipt Ex.P5 and Affidavit Ex.P6. He cannot say whether Sh. Muneeruddin had executed the above mentioned documents or not. He also cannot say whether said Sh. Muneeruddin had signed on Ex.P3 to P6. He took certain information through RTI, vide letter, dated Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.12 of 26 14.01.2009, in respect of plot No.32/493 and possession therein. He does not remember as to whether he came to know vide Mark'C'&'D' that license fee in respect of the suit property had fallen due. He tried to tender the license fee, vide Mark'B', i.e., certified copy of the DD, dated 19.04.2011. He had written the contents, running from point 'A' to 'B' at the reverse of Mark'B'. He does not remember, if his signatures are appearing at point 'X' on Mark'B' or not. He has admitted that he came to know through Mark'A', i.e., letter, dated 25.01.2012 that license, in respect of all J.J. Colonies in Delhi have been suspended. He has denied the suggestion as wrong that signature at point 'X', in Mark'B' and Ex.P2 are the same. He does not remember whether he got issued legal notices, dated 06.09.2012, in respect of property No.32/492 and 32/491. On 27.09.2012, there was no scuffle between him and the defendants. He has denied the suggestion as wrong that he is deposing falsely, in order to grab the suit property.
13. I have gone through the copy of the possession slip, bearing No.4669, dated 15.01.1977, i.e., Ex.P1/Ex.DW1/1 and it appears that same was issued by J.J. Cell, DDA, in the name of Musarat Hussain, S/o Sh. Hidaut Hussain, in respect of plot No.32/493. I have also gone through the copies of the documents, i.e., GPA, dated 08.03.1983, executed by Sh. Musarrat Hussain, in favour of Sh. Muniruddin, i.e., Ex.P2/Ex.DW1/2; Agreement, dated 10.02.1987, executed by Sh. Muneeruddin, in favour of Smt. Safiqan, i.e., Ex.P3/Ex.DW1/3; GPA, dated 10.02.1987, executed by Sh. Muneeruddin, in favour of Smt. Safiqan, i.e., Ex.P Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.13 of 26 4/Ex.DW1/4; Receipt, dated 10.02.1987, in respect of receiving of payment by Sh. Muneeruddin from Smt. Safiqan, i.e., Ex.P 5/Ex.DW1/5; Affidavit, dated 10.02.1987, executed by Sh. Muneeruddin, i.e., Ex.P6/Ex.DW1/6; And it appears that documents, i.e., Ex.P2/Ex.DW1/2 to Ex.P6/Ex.DW1/6, as above, are only notarized documents and the GPA, i.e., Ex.P 2/Ex.DW1/2 appears to have been executed by the plaintiff in favour of his brother Sh. Muneeruddin, who allegedly further sold the suit property to Smt. Shafiqan, vide documents, i.e., Ex.P 3/Ex.DW1/3 to Ex.P6/Ex.DW1/6, and thereafter, Smt. Safiqan sold the suit property to the defendant through her duly registered IGPA, i.e., Ex.DW1/12 against consideration and as the title documents, conveying right, title and interest, if not registered, have no sanctity in the eyes of law, in the light of the decision, passed by Hon'ble Supreme Court of India in the case of Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana & Ors., reported as SLP © No.13917 of 2009, wherein, their lordship was pleased to observe:
"Section 5 of the Transfer of Property Act 1882, ('Transfer of Property Act' for short) defines 'transfer of property' as under:
5. "Transfer of Property" defined : In the following sections ''transfer of property'' means as act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and 'to transfer property' is to perform such act. "xxxxxx"
Section 54 of the Transfer of Property Act defines 'sales' thus:
''Sale'' is a transfer of ownership in exchange for a price Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.14 of 26 paid or promised or partpaid and partpromised. Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a valueless than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for Sale A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. Section 53A of the Transfer of Property Act defines 'part performance 'thus:
Part PerformanceWhere any person contracts to transfer for consideration and 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 therefore 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:Suit No.3286/2016
Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.15 of 26 Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance.
Further, the Hon'ble Court also observed:
Scope of an agreement to sale
11. Section 54 of Transfer of Property Act, makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This court in Narandas Karsondas v/s S.A.Kamtam and Anr.MANU/SC/0363/1976:(1977) 3 SCC 247 observed that :
A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prasad vs Ram Mohit Hazra MANU/SC/0212/1966 : 1967(1) SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognized in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act, as an obligation, arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.
In India, the word 'transfer' is defined with reference to the word 'convey'. The word 'conveys' in Section 5 of Transfer of Property Act is used in the wider sense of conveying ownership that only on execution of conveyance ownership passes from one party to another....
The Hon'ble Court, further, observed:
In Rambhau Namdeo Gajre vs Narayan Bapuji Chotgra MANU/SC/0680/2004:2004 (8) SCC 614 this Court held:
Protection provided under section 53A of the Act to the Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.16 of 26 proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be passed in service against as third party.
It is, thus, clear, that a transfer of immovable property by way of sale, can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of Transfer of Property act).
According to Transfer of Property Act, an agreement of sale, whether with possession or without possession, is not a conveyance.
Section 54 of Transfer of Property Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge or its subject matter.
Scope of Power of Attorney
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 Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.17 of 26 whereby the guarantor authorizes the guarantee to do the acts specified therein, on behalf of guarantor, which when executed will be binding on the guarantor 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 guarantee.
In State of Rajasthan vs Basant Nehata MANU/SC/0547/2005:2005(12)SCC 77 this Court held that:
A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series 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.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the powers of attorney act is valid. A power of attorney, we have noticed herein before, is executed by the donor so as to enable the done to act on his behalf. Except in case where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.18 of 26 donor and the donee.
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the guarantor.
16. We therefor reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.
14. Thus, in the light of the law, as discussed above, it is crystal clear that the documents, i.e., Ex.P2/Ex.DW1/2 to Ex.P 6/Ex.DW1/6, which are only notarized documents, have no value in the eyes of law, as the deed of conveyance of property having value more than Rs.100/ is required to be registered compulsorily, in terms of provisions of Section 17 of The Registration Act, 1908. Moreover, an allottee of a property under Slum and J.J.Scheme cannot part with its possession or transfer its ownership rights to other person, as he/she, himself/herself, is not the owner thereof Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.19 of 26 and he/she is merely a licensee therein, so, if it is presumed that the plaintiff had transferred his rights in the suit property to some person, who further transferred the same to the defendant, of which, the plaintiff, himself, is not the owner, so, then even transfer so done, is of no consequences as no one can transfer more than he himself owns and therefore, such purported transfer is ineffective to that extent and void abinitio from the very beginning, as the land belongs to the Slum and J.J.Department, which does not give permission to part with or create third party interest in the allotted property, of which, an allottee is also not the owner and as such, it appears that plaintiff is entitled for possession of the suit property. Hence, it is to be noted that the authorities submitted by both the sides have no bearing and relevance to the questions in issue and woefully, falls short of any application to the legal points, involved in adjudication of this issue and as such these are of no avail of the parties, relying on them. Hence, this issue is decided in favour of the plaintiff and against the defendant.
Findings on Issue No.2.
15 This is an issue, to the effect that "whether the plaintiff is entitled for declaration to the effect that documents of the suit property, dated 10.05.2006 or other documents relating to the suit property, as null and void" and onus to prove the same was on the plaintiff and in view of my findings, just returned above, on issue No.1, while holding that the documents so executed by Sh. Munieeruddin in favour of Smt. Shafiqan, also by Smt. Shafiqan in Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.20 of 26 favour of the defendant, have no value in the eyes of law, as the plaintiff, himself, is an allottee of the suit property, who did not and cannot further transfer its right, title in favour of any other person and as such, it appears that the documents, i.e., Ex.P 3/Ex.DW1/3 to Ex.P6/Ex.DW1/6, executed by Sh. Muneeruddin, also Ex.DW1/7 to Ex.DW1/12, executed by Smt. Shafiqan, appear to be null and void, accordingly, the above mentioned documents are hereby, declared to be null and void. Hence, this issue is decided in favour of the plaintiff and against the defendant.
Findings on Issue No.3.
16. This is an issue, to the effect that "whether the plaintiff is entitled to a decree of permanent injunction, as prayed" and onus to prove the same was on the plaintiff and it appears from the findings, just returned, on the issue No.1, as above, the plaintiff is held to be entitled for relief of permanent injunction. Hence, this issue is decided in favour of the plaintiff and against the defendant.
Findings on Issue No.4.
17. This is an issue, to the effect that "whether the plaintiff is entitled to recover mesne profit and damages of Rs.6,000/ p.m." and onus to prove the same was on the plaintiff and it appears from the perusal of paragraph No.8 of the plaint as well as paragraph No.9 of affidavit, i.e., Ex.PW1/A that the plaintiff/PW has assessed therein compensation / damages / mesne profits in respect of suit property @ Rs.6000/ per month and beside, this averment, no cogent evidence has been led in/brought on record nor any witness Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.21 of 26 from the locality where the suit property is situate has been examined to prove this issue and as such, it appears that plaintiff has not been able to prove this issue in his favour. Hence, this issue is decided against the plaintiff and in favour of the defendant.
Findings on Issue No.5.
18. This is an issue, to the effect that "whether the suit is not properly valued for the purpose of court fees" and onus to prove the same was on the defendant and it appears from the preliminary objection No.'C' of the written statement, also paragraph No.4 of affidavit, i.e., Ex.DW1/A that the defendant has merely, taken this objection without any substance/material, however, it appears from the perusal of paragraph No.16 of the plaint that plaintiff has assessed the suit for the relief of possession at Rs.11 lakhs, also for the relief of declaration at Rs.200/ and for the relief of permanent injunction at Rs.130/, and advalorem court fees of Rs.13,115/ has been affixed on the plaint, which appears to be correct and as such, it appears that defendant has not been able to prove this issue in his favour. Hence, this issue is decided against the defendant and in favour of the plaintiff.
Findings on Issue No.6.
19. Issue no. 6 and 7, as framed are entwined in their nature, they are interrelated and at times, even interdependent, however, different rules of law of limitation are applicable, which go to form their bases. Here, Art. 64 and 65 of the Limitation Act, 1963, incorporate the bases for both the issues, as framed and even both the articles are similar, in their nature, as being the rules of Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.22 of 26 limitation but Art. 64 applies to a case, based on previous possession & thereafter dispossession or its discontinuance, whereas, Art. 65 is the residuary article, applying to suit for possessions not otherwise provided for. Both articles 64 and 65 are, thus, rules of limitation. The only difference being that in the former the onus lies on the plaintiff to prove his dispossession within 12 years, while in the latter it is for the defendant to prove when his possession became adverse. The issue no. 6 is to the effect that "whether the suit is barred on the ground of adverse possession" and onus to prove the same was on the defendant and it appears from the perusal of paragraph No.5 of the affidavit, i.e. Ex.DW1/A that the defendant is claiming, therein, adverse possession in the suit property on the basis of the purported transfer, made by his predecessorininterest, who had executed sale documents in the year 1987, though, he fails to provide any basis or foundation to claim as to when his open, hostile and uninterrupted possession became adverse in nature. The possession claimed by him is from the year 2006, i.e. 10052006, can be taken as adverse as being independent in nature but it is of no avail to him as it is not a clear plea of adverse possession as required under the law. Neither the period of 12 years have been completed, qua his independent possession since 10052006, nor it is adverse in nature, in as much as this Court had already held, while returning its findings on issue No. 1, that the documents so executed, as above, by Sh. Muneeruddin and Smt. Shafiqan have no value in the eyes of law, as plaintiff himself is an allottee of the Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.23 of 26 suit property, who did not and cannot further transfer it to anyone, so the claim of the defendant that he is in adverse possession of the suit property clearly appears to be vague and untenable one and as such does not spell as to how his possession becomes adverse in clear terms, thus, the defendant has not been able to prove this issue in his favour. Hence, this issue is decided against the defendant and in favour of the plaintiff.
Findings on Issue No.7.
20. This is the issue, to the effect that "whether the suit is barred by limitation" and onus to prove the same was, again, on the defendant and the defendant has neither led any cogent evidence of any witness nor brought any document on this aspect of the matter so as to show that suit is hopelessly, barred by limitation, however, he has merely pleaded in the preliminary objection 'D' of the written statement as well as in the paragraph No.5 of the affidavit, i.e., Ex.DW1/A had simply, averred therein, that the suit is hopelessly time barred, as admittedly, the suit property was handed over to Sh. Muniruddin in the year 1991, (however, actually it was in 1983), who had executed sale documents in favour of predecessor ininterest of the defendant in the year 1987. Therefrom, also a span of altogether 25 years have already passed, (though, it is 33 years, in fact, from the date of execution of the irrevocable power of attorney in favour of said Muniruddin), which constructs adverse possession in favour of the defendant and against the plaintiff, whereas, it appears from the perusal of the plaint that the suit property was allotted to the plaintiff on 15.01.1977 by Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.24 of 26 MCD/DDA, Slum and J.J. Department, Delhi and the plaintiff found defendant to be in illegal and unauthorized possession / occupation of the suit property and in the meantime, Sh. Maniruddin, brother of the plaintiff died in January, 2008, thereafter, plaintiff filed an application, dated 24.03.2009 before Slum & J.J.Department under RTI Act to know the status of the suit property and in response thereto, the said department, vide reply, dated 27.01.2009, informed him that suit property was allotted to the plaintiff vide receipt No.U4669, dated 15.01.1977, also informing him that defendant was found to be residing therein, then, plaintiff met the defendant to hand over the vacant and peaceful possession of the same but in vain and thereafter, defendant threatened to create third party interest on 27.09.2012 and a legal notice dated 06.09.2012 was sent to the defendant but with no reply thereto, accordingly, a suit for permanent injunction, possession and mesne profits/damages, bearing CS No.436/2012 was filed, which was thereafter withdrawn from the Ld. Court of Sh. Dharmender Rana, Ld. ASCJ, East, KKD Courts, Delhi, vide order dated 20.01.2015 and it appears that the present suit has been filed on 26.09.2016, which appears to be well within the period of limitation for filing of a suit for recovery of possession of immovable property, as provided by the Article 64 of the Limitation Act, 1963 and in the absence of any contrary and cogent evidence, brought on record by the defendant, he appears to have failed to discharge his onus to prove this issue. Hence, this issue is decided against the defendant and in favour of the plaintiff.
Suit No.3286/2016Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.25 of 26
21. Relief : This is an issue, with respect to relief and in view of my findings on the issue/(s), just returned above, the suit of the plaintiff for the relief/(s) of possession, declaration and permanent injunction, is hereby, decreed and the defendant is directed to hand over the possession of the suit property bearing No.32/493, Trilok Puri, Delhi110091, as shown red colour in the annexed site plan, i.e., Ex.PW1/6, to the plaintiff, within 90 days from today; Further, the documents, i.e., Ex.P3/Ex.DW1/3 to Ex.P6/Ex.DW1/6, executed by Sh. Muneeruddin, also the documents Ex.DW1/7 to Ex.DW1/12, subsequently, executed by Smt. Shafiqan, are declared as null and void; Also, the defendant, his agents, servants, associates, assigns etc. are directed not to sell, transfer, alienate, part with or create any third party interest in the suit property, as above. The costs of the suit is also awarded. Decree sheet shall be prepared, only, when the deficient court fee, if any, is furnished. File be consigned to record room.
Announced in the open Court on 04.07.2020 ( Sanatan Prasad ) Additional District Judge01 (East)/KKD/Delhi /04.07.2020 Suit No.3286/2016 Sh. Mussarat Hussain @ Mohd. Ali Zaidi v. Sh. Mohd. Abbas DOD : 04.07.2020 Page No.26 of 26