Smt. Kaushal Aggarwal & Anr. vs Ashok Malhotra & Ors.
2009 Latest Caselaw 579 Del

              * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                           Date of Reserve: 06.2.2009
                                                    Date of Order: 17th February, 2009

CS(OS) No. 165/2009
%                                                                             17.2.2009

        Smt. Kaushal Aggarwal & Anr.             ... Plaintiffs
                           Through: Mr. Ashim Vachher, Advocate

                 Versus


        Ashok Malhotra & Ors.                                       ... Defendants



JUSTICE SHIV NARAYAN DHINGRA

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?

JUDGMENT

The plaintiffs are in possession of ground floor of the property no.

G-40, Nizamuddin (West). The plaintiffs claim to have entered into an oral

agreement to purchase this property from late Smt. Gian Devi and defendant

no.3 for a total consideration of Rs.2,90,000/-. The plaintiffs claim that out of the

sale consideration, they paid Rs.2,35,000/- and the remaining amount of

Rs.55,000/- was to be paid at the time of execution of sale deed. They alleged to

have entered into this oral agreement on or around 15th March, 1984. In the

same property, one Smt. Vimla Malhotra had been a tenant since 1971 at first

floor and barsati floor. Defendants no. 3, 4 & 5 who were the recorded owners of

the property filed an eviction petition against late Smt. Vimla Malhotra under

Section 14(1)(e) of DRC Act. This eviction petition was contested by Smt. Vimla

Malhotra and a leave to defend was granted to her. Ultimately the learned Rent

Controller vide order dated 7th September, 2006 passed an eviction order in

favour of defendants no. 3, 4 & 5 and against Smt. Vimla Malhotra. Plaintiffs

claim that this eviction order was challenged by Smt. Vimla Malhotra by way of a

revision petition. However, Smt. Vimla Malhotra expired on 23rd May 2008. Her

son and daughter, who are defendants no. 1 & 2 herein had agreed to hand over

the vacant possession of the premises in their occupation to defendants no. 3, 4

& 5. The plaintiffs have filed this suit seeking an injunction that defendants no. 1

& 2 be restrained from handing over vacant peaceful possession of suit property

to defendants non. 3, 4 & 5 and Court should pass a decree of permanent

injunction to this effect against defendants no. 3, 4 & 5. In case the possession

had already been handed over by defendants no. 1 & 2, defendants no. 3,4 & 5

be restrained from handing over possession of this property to any third party

and the Court should also pass a mandatory injunction against defendants no. 1

& 2 to hand over the vacant possession to the plaintiffs.

2. The plaintiffs' sole claim in this suit is based on an oral agreement,

which plaintiffs allegedly entered about 25 years ago with the deceased Smt.

Gian Devi and defendant no. 3. An oral agreement to sell, even if it is assumed

was there, does not confer any title in the property on the plaintiffs and on the

basis of this oral agreement the plaintiffs cannot seek an injunction against a

tenant handing over possession of the tenanted premises to the landlord and

lawful registered owners of the property. It is the plaintiffs' own case that

defendant no.3 had got issued a legal notice as back as on 29th April, 1993 on

the plaintiffs asking plaintiffs to vacate the property and it is only after this notice

that the plaintiffs took a plea that there was an oral agreement to sell in respect

of the property in their favour. The plaintiffs had not taken action on the basis of

alleged oral agreement to sell prior to 1993. The plaintiffs filed a suit for specific

performance of this alleged oral agreement to sell only in 2005 i.e. after about 21

years of the alleged agreement. The suit is pending before the Court.

Defendants no. 3, 4 & 5 have also filed a suit for possession against the plaintiffs

in respect of the ground floor, which is in possession of the plaintiffs. The suits

filed by the plaintiffs and defendants are being tried together.

3. I consider that on the basis of an oral agreement to purchase, no

ownership rights can be claimed in a property. The part performance which is

alleged by the plaintiffs cannot be looked into in view of Section 53(A) of the

Transfer of Property Act as the basic and fundamental requirement of Section

53A is that the agreement should be in writing specifying precisely the terms and

conditions of contract. Creation of a right in any manner in immovable property

of more than Rs.100 is compulsorily register-able. Under these circumstances, I

consider that the suit filed by the plaintiffs seeking injunction restraining the

tenant from handing over possession to the landlord lawful owners cannot be

entertained neither the Court can restrain the lawful owners of the property from

exercising their rights in inducting another tenant or another person because of

plaintiffs' claim of entering into an oral agreement to sell of the property around

25 years ago without any document showing that any amount was paid towards

sale of the property. The suit is not maintainable and is hereby dismissed.

February 17, 2009                                   SHIV NARAYAN DHINGRA, J.
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