A-7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 21.01.2011
+ RSA No.314/2006 & CM No.10006/2008
GHANSHYAM ...........Appellant
Through: Mr.M.S. Krishnamoorthy,
Advocate.
Versus
YOGENDER RATHI ..........Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated 03.8.2006 which has endorsed the finding of the trial judge dated 18.8.2005 whereby the suit filed by the plaintiff Yogender Rathi seeking a decree of possession and mesne profits had been decreed in his favour.
2. This is a second appeal. On behalf of the appellant, it has been argued that the Court below had erred in decreeing the aforenoted suit on the purported documents of title set up by the plaintiff i.e. agreement to sell, registered general power of attorney, receipt dated 10.4.2002; the said documents could not be relied upon to set up title in the absence of a registered sale deed which the plaintiff did not have; the ownership of the plaintiff not having been proved in the suit property, decree could not have RSA No.314/2006 Page 1 of 3 followed. The substantial questions of law have been formulated on page 5 of the appeal. Counsel for the appellant has placed reliance upon AIR 1987 Delhi 36 Imtiaz Ali Vs. Nasim Ahmed; AIR 2003 Delhi 120 G.Ram Vs. Delhi Development Authority ; (2009) 7 SCCC 363 Suraj Lamp & Industries (p) Ltd. Vs. State of Haryana & Anr. to support his submission. It is pointed out that a transfer of immovable property valued at more than `100/- can be effected only through a registered sale deed. The agreement to sell, GPA, affidavit and receipt could not thus confer or transfer title. It is pointed out that in the judgment of the Apex Court report in Suraj Lamp Industries (supra), the Court had deprecated this practice of "power of attorney" sales.
3. None has appeared for the respondent in spite of service.
4. The trial court on the pleadings of the parties had framed four issues. This contention now raised was not raised before the trial judge. Even in the first appellate Court the grievance was that the documents had been got executed by him fraudulently and through mis-representation. Be that at it may, this Court shall deal with this submission made by the learned counsel for the appellant.
5. The plaintiff in his plaint has specifically averred that the defendant had executed the aforenoted document i.e, agreement to sell, registered GPA, and receipt dated 10.4.2002 in his favour and coupled with these documents the possession of the suit property had been handed over by the defendant to the plaintiff on 10.4.2002 itself. The written statement filed by the defendant has been perused. There is no specific denial on this count. It has not been denied that the suit property has not been handed over to the plaintiff. His contention was that these documents had been RSA No.314/2006 Page 2 of 3 prepared under mis-representation and in collusion with one Smt. Gomati wherein signatures of the defendant had been obtained fraudulently.
6. Before this Court today the execution of these documents has not been disputed. Only question is; whether these documents had created an effective title in favour of the plaintiff?
7. The evidence adduced before the Courts below had established that apart from the aforenoted documents executed on 10.4.2002 the defendant had also given physical possession of the property to the plaintiff. This court in 94 (2001) DLT 841 Asha M. Jain Vs. Canara Bank & Ors. had occasion to examine the value of such documents and if they could transfer title in favour of the claiming party. In this judgment, the Court relying upon the earlier judgment of this court reported in 76(1998) DLT 236 Kuldip Singh Vs. Surinder Singh had observed that power of attorney sale is a common mode of sale of immovable property in Delhi; where such like documents i.e. power of attorney is for consideration and the bargain is followed by delivery of possession it would amount to a valid transfer. In this case, the aforenoted documents had been executed for consideration and coupled with deliver of possession, the Courts below had rightly relied upon them to decree the suit in favour of the plaintiff. No substantial question of law having arisen the appeal as also the pending application is dismissed in limine.
INDERMEET KAUR, J.
JANUARY 21, 2011 nandan RSA No.314/2006 Page 3 of 3