Firasat Khan vs Smt. Firdos & Ors.
2008 Latest Caselaw 1350 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       R.F.A. No. 132/2007

      FIRASAT KHAN                        ........Appellant
               Through: Mr. Mansoor Ali, Advocate

                              VERSUS

     SMT. FIRDOS AND ORS.               ........ Respondents
              Through:  Mr. D.K.Mishra, Advocate

                             RESERVED ON:
                              12.08.2008

                         DATE OF DECISION:
%                           14.08.2008

CORAM:
    HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
    HON'BLE MR. JUSTICE SUNIL GAUR


1.   Whether reporters of local papers may be allowed
     to see the judgment?

2.   To be referred to the Reporter or not?

3.   Whether judgment should be reported in Digest?

:    PRADEEP NANDRAJOG, J.

1. Appellant, Firasat Khan has lost the battle before

the learned Trial Judge. His suit seeking a decree of

possession, damages, mesne profits, declaration and

injunction, being Suit No.358/2003 has been dismissed, after

trial, vide impugned judgment and decree dated 13.11.2006.

2. Respondent, Mst. Firdos, Mst. Shakila Begum, Mst.

Asmat Ara, Mst. Sarvar Ara and Mohd. Nasir were impleaded as

defendants 1 to 5 in the said suit.

3. Claim of the appellant, as pleaded in the plaint, was

that he purchased property No.816 in the abadi of Jafrabad

gali. It was stated that the property was comprised in khasra

No.30 of village Seelam Pur and was given Municipal No.816,

Gali No.30/2, Jafrabad. He stated that the property was built

up and was on a parcel of land ad-measuring 150 sq. yds. He

claimed to have purchased 75 square yards land vide

documents executed on 7.1.1999 by one Mst. Sabnam Sahar

W/o Md. Bashir. He further claimed to have purchased

balance75 square yards of land from Mst. Fakhre Nasir W/o Md.

Nasir vide documents executed in his favour on 6.1.1999.

4. He further alleged that Mst.Firdos approached him

to purchase the property for personal use. He declined. He

pleaded that Firdos filed a suit under Section 6 of the Specific

Relief Act 1963 alleging that she was managing the property

on behalf of Mst.Shakila Begum, Mst.Asmat Ara and Mst.Sarvar

Ara and that she was illegally dispossessed, without authority

of law, by him i.e. Firasat Khan. It was further pleaded that

even he had filed a suit for injunction against Mst.Firdos as he

feared that he may be dispossessed from the suit property. It

was further stated that Mst.Firdos lodged an FIR against him

alleging trespass and that proceedings were initiated against

the parties under Section 107/150 Cr.P.C. in which proceedings

the police gave possession of the suit property to Mst.Firdos.

He stated that since Mst.Firdos regained possession through

the police she withdrew the suit seeking a decree of

possession and that even he withdrew the suit for injunction.

5. Alleging wrongful dispossession through police

intervention, appellant filed the suit in relation whereto instant

appeal has arisen.

6. The defence taken by the respondents was that the

documents of title relied upon by the appellant did not confer

any legal title on him. That the so called predecessor in

interest of the appellant never owned the property. It was

pleaded that the property was owned by Mohd.Bashir S/o

Mohd.Amir, who was the brother of respondents 1 to 4 and

that vide agreement to sell dated 24.3.1988 he sold half

portion to Mst.Shakila Begum, Mst.Asmat Ara and Mst.Sarvar

Ara. Qua the remaining half portion, it was pleaded that

Md.Bashir, retained ownership but gave possession to

respondents 1 to 4. It was further stated that respondent No.1

was managing the property on behalf of the other respondents.

7. On the pleadings of the parties, it is apparent to any

person with minimum legal knowledge, the basic issue which

arose for consideration was: whether the plaintiff was the

owner of the suit property and whether he was entitled to be

put into possession thereof. Needless to state, depending

upon the decision on the said issue, consequential issues of

entitlement of the respondents to retain possession would

have been decided.

8. The so called sale documents purportedly executed

by Mst.Sabnam Sahar in favour of the appellant, pertaining to

75 square yards of land, proved at the trial were, Ex.PW-1/2, a

general power of attorney dated 7.1.1999; Ex.PW-1/3, a special

power of attorney of even date; Ex.PW-1/4 a will of even date;

Ex.PW-1/5, an agreement to sell of even date; Ex.PW-1/6 an

affdavit of even date and Ex.PW-1/D-1, an indemnity bond of

even date. All these documents are purportedly executed by

Mst.Sabnam Sahar in favour of the appellant.

9. Pertaining to the remaining half share purportedly

acquired by the appellant from Mst.Fakhre Nasir, an

agreement to sell dated 6.1.99 was proved as Ex.PW-1/8.

10. The respondents proved an agreement to sell dated

24.3.1988 executed by Md.Bashir in favour of respondents 2 to

4 as Ex.DW-1/1. A general power of attorney executed by

Mohd.Bashir of even date was proved as Ex.DW-1/5.

11. It may be noted that photocopy of a sale deed

executed by one Krishan Lal in favour of Anees Ahmed

pertaining to the suit property was marked as a document

'Mark A' and a general power of attorney purportedly executed

by Anees Ahmed in favour of Mohd.Bashir was marked as

'Mark B'.

12. Appellant examined himself as PW-1, Abdul Basti as

PW-2, Prem Lata a clerk from the Sub-Registrar's office as PW-

3, Dilshad Khan as PW-4, Mubarak Ali as PW-5 and Sabnam

Sahar as PW-6. Respondents examined respondent No.1 as

DW-1 and respondent No.5 as DW-2.

13. Noting that the so called title documents, Ex.PW-1/2

to Ex.PW-1/6 and Ex.PW-1/8 did not record as to how the

sellers acquired title to the property in question and that no

document of title of the previous seller was produced, the

learned Trial Judge opined that since the appellant could not

prove title of his predecessor in interest, additionally keeping

in view the nature of the documents: being agreement to sell

and power of attorney etc., it was held that the appellant has

failed to prove title to the suit property. It has additionally

been noted by the learned Trial Judge that Ex.PW-1/8 the

purported agreement to sell dated 6.1.1999 executed by

Mst.Fakhre Nasir records that the sale consideration pertaining

to 75 square yards of land was Rs.4 lacs and that only

Rs.50,000/- was received. Learned Trial Judge has held that

there is no evidence to prove that the appellant paid balance

Rs.3.5 lacs to Mst.Fakhre Nasir and this was an additional

reason to doubt appellant acquiring possession of 75 sq. yds.

land from Mst.Fakhre Nasir.

14. Further reasons recorded by the learned Trial Judge

are that Ex.PW-1/8 itself records that on completion of the

transaction the appellant would be entitled to get vacated the

subject property from the tenant and that the special power of

attorney, Ex.PW-1/3 purportedly executed by Mst.Sabnam

Sahar also records that the appellant would be entitled to get

vacated the subject property. Conclusion drawn is that these

two documents belie the claim of the appellant that when he

acquired title to the suit property under the said documents he

was put in actual physical possession thereof.

15. The testimony of the witnesses of the appellant has

been noted by the learned Trial Judge to the effect that save

and except PW-5 and PW-6 none could depose on the appellant

acquiring physical possession of the suit property. PW-5,

Mubarak Ali was discredited by the learned Trial Judge for the

reason he stated in his examination-in-chief that when Ex.PW-

1/8 was executed physical possession of the subject property

was handed over by Mst.Fakhre Nasir to the appellant, but in

cross examination stated to the contrary, that possession had

to be handed over when balance sale consideration was paid

by the appellant to Mst.Fakhre Nasir. Pertaining to the

testimony of PW-6, Mst.Sabnam Sahar, the learned Trial Judge

noted that her claim of handing over possession of 75 sq. yds.

of land with built upon structures to the appellant was belied

by her admission in cross examination where she admitted

that she never came into physical possession of 75 sq. yds. of

land and built upon structures thereon.

16. Lastly, the learned Trial Judge has held that title in

immovable property can only be conveyed by registered sale

deeds and that no title can be created by executing agreement

to sell, general power of attorney etc.

17. At the hearing held on 12.8.2008, the learned

counsel for the appellant urged that there are various

judgments recognizing creation of interest in immovable

property through irrevocable power of attorney where the

interest created is on account of consideration passing

between the grantee and the grantor. Counsel further urged

that the respondents had failed to establish title as pleaded by

them. Counsel urged that the document Mark 'A' and Mark 'B'

could not be considered. Lastly, counsel urged that the effect

of registration of the FIR, proceedings under Section 107/150

Cr.P.C. and restoration of possession by the police as also the

suit for possession filed by respondent No.1 were not

considered by the learned Trial Judge. Learned counsel urged

that admittedly appellant was in possession of the suit

property, a fact evidenced from the suit filed by respondent

No.1 under Section 6 of the Specific Relief Act 1963.

18. Per contra, learned counsel for the respondents

urged that the proceedings initiated by respondent No.1 under

Section 6 of the Specific Relief Act 1963 and the suit for

injunction filed by the appellant were around the same time

when an FIR for trespass was registered against the appellant

and proceedings initiated under Section 107/150 Cr.P.C.

Counsel urged that admittedly, in the proceedings under

Section 107/150 Cr.P.C. it was held that the respondents were

in possession of the property and that the appellant had

trespassed into the same resulting in possession being

restored to the respondents.

19. Thus, counsel urged that nothing turns on the

earlier litigation between the parties.

20. Ex.PW-1/D-2 is the FIR dated 26.11.2002; being FIR

No.414, PS: Seelam Pur registered against the appellant for the

alleged offence of trespass. The proceedings under Section

107/150 Cr.P.C. commenced pursuant to DD No.21-A dated

6.11.2002. The suit for injunction was filed by the appellant on

15.11.2002. The date on which respondent No.1 filed the suit

for possession is not on record, but as pleaded in the plaint

resulting in the instant proceedings, the said suit was filed in

the month of November 2002.

21. It is thus obvious that the month of November 2002

was an eventful month in the life of the parties when they went

into dispute on the question of title. In the month of November

2002 there was inchoate evidence as to who was in possession

of the property. Ultimately, in the proceedings initiated under

Section 107/150 Cr.P.C. a prima facie view was taken by the

authorities that the respondents were in possession of the

property. Possession of the appellant was found to be prima

facie unlawful. Possession was restored to the respondents.

22. Thus, the issue between the parties has to be

decided not with reference to the nebulous events which took

place in the month of November 2002, but on the basis of

concrete evidence. Thus, no infirmity has entered into the

impugned judgment by non consideration of the previous

litigation and the criminal proceedings for offence of trespass

and breach of peace.

23. Appellant, being the plaintiff, has to succeed on his

own strength. Appellant has asserted title to the suit property

and must succeed on the basis of the evidence led by him.

24. As noted above, appellant claims half title to the

suit property under Mst.Sabnam Sahar and half title under

Mst.Fakhre Nasir.

25. Ex.PW-1/2 to Ex.PW-1/6 are the documents

purportedly executed on 7.2.1999 by Mst.Sabnam Sahar in

favour of the appellant.

26. Indeed, as noted by the learned Trial Judge neither

document refers to the title of the executant, namely

Mst.Sabnam Sahar. How did Mst.Sabnam Sahar acquire title to

the 75 sq. yds. land sold by her has not been disclosed in any

document. We note that no document of title of the previous

owner has been proved on record.

27. The only reference to a semblance of title are the

recitals in Ex.PW-1/2, being the general power of attorney

purportedly executed by Mst.Sabnam Sahar in favour of the

appellant. The recital reads as under:-

"This deed of general power of attorney is executed at Delhi on this 7th day of January, 1999, by Shrimati Shabnam Sahar wife of Shri Haji Mohd. Bashir resident of 1299, Pahari Imli, Jama Masjid, Delhi-6, as one of the general attorney of Shri Sayed Nazir Ali son of Late Shri Sayed Mohd. Ali vide deed of GPA, executed on dated 29.10.1993, at Delhi, who is also the general attorney of Shri Mohd. Bashir son of Late Shri Mohd. Ameer and Shri Mohd. Naseer son of Late Mohd. Ameer vide deed of GPA, executed on dated 8.10.1993, at Delhi, who are also the general attornies of Shri Anis Ahmed son of Shri Sultan Ahmed vide deed of GPA, executed on dated

19.10.1981, at Delhi, hereinafter called the Executant, (Indian), in favour of Shri Firasat Khan son of Shri Aziz Khan resident of 948, Gali No.30/9, Jafrabad, Shahdra, Delhi, hereinafter called the general attorney, (Indian)."

28. Indeed, the purported general power of attorney

executed by Sayed Nazir in favour of Mst.Sabnam Sahar has

not seen the light of the day.

29. Qua the remaining 75 sq. yds. land title whereto is

claimed by the appellant under Mst.Fakhre Nasir i.e. Ex.PW-

1/8, we note that there are no recitals as to how Mst.Fakhre

Nasir acquired title to 75 sq. yds. of land. Indeed, no

document has been proved or other evidence led by the

appellant to prove Mst.Fakhre Nasir's title to 75 sq. yds. of

land.

30. Thus, the view taken by the learned Trial Judge that

the appellant has failed to prove that Mst.Sabnam Sahar

owned 75 sq. yds. of land and that Mst.Fakhre Nasir owned the

remaining 75 sq. yds. of land cannot be faulted with.

31. The inevitable consequence of said view would be

that the appellant has failed to prove any title to the suit

property.

32. This is not the end of the matter.

33. As noted hereinabove, the learned Trial Judge has

noted that in the special power of attorney purportedly

executed by Mst.Sabnam Sahar in favour of the appellant i.e.

Ex.PW-1/3, it has been clearly recorded that pursuant to the

power vested in the appellant under the power of attorney he

was authorized to get vacated the 75 sq. yds. land with built

upon structures thereon. Learned Trial Judge has correctly

noted that the recital in Ex.PW-1/3 ran contrary to the

covenant recorded in the agreement to sell, Ex.PW-1/5, that

vacant physical possession was handed over by Mst.Sabnam

Sahar to the appellant on 7.1.1999.

34. Further, as noted by the learned Trial Judge,

Mst.Sabnam Sahar who appeared as PW-6 admitted in cross

examination that she never was in physical possession of the

suit property.

35. We may only add that on being cross examined,

Mst.Sabnam Sahar stated : "it is correct that I never stayed in

the suit premises .... sister of my husband namely Firdos is

living there. I do not know since when Firdos is staying in the

house in dispute. Vol. She is there before my marriage. I got

married in 1991." She further admitted in cross examination:

"I did not hand over actual physical possession. Ownership

was transferred."

36. It is apparent that Mst.Sabnam Sahar never

transferred possession to the appellant.

37. It would be interesting to note that the lady 'Firdos'

referred to in the statement of Mst.Sabnam Sahar is none else

except Mst.Firdos the first respondent.

38. It would further be relevant to note that neither

Mst.Sabnam Sahar nor Mst.Fakhre Nasir got their names

mutated in the municipal records as persons liable to pay

property tax for the property in question. No electricity bill or

for that matter any document linking possession of

Mst.Sabnam Sahar and Mst.Fakhre Nasir to the suit property

has been brought on record.

39. Looked at from any angle, on the evidence on

record, view taken by the learned Trial Judge cannot be faulted

with. The evidence probablizes the view taken by the learned

Trial Judge.

40. Though insignificant, but it lends assurance and

credibility to the view taken by the learned Trial Judge is the

fact that the documents marked 'A' and marked 'B' tend to

prima facie establish that Anees Ahmed purchased the entire

suit property ad-measuring 150 sq. yds. from Kishan Lal and in

turn, appointed Md.Bashir as his general attorney. Ex.DW-1/1,

being the agreement to sell relating to 75 sq. yds. of land in

favour of respondents No.2 to 4 has been executed by Mohd.

Bashir. The recital in Ex.PW-1/2, the general power of attorney

relied upon by the appellant assumes significance because the

same records that Anees Ahmed had executed a power of

attorney in favour of Md.Bashir.

41. It appears to be a case where the appellant had

some vague knowledge of prior title and has made inchoate

recitals in the general power of attorney Ex.PW-1/2.

41. We find no merit in the appeal.

42. The appeal is dismissed with costs.

PRADEEP NANDRAJOG, J.

SUNIL GAUR, J.

AUGUST 14, 2008 mm