Kunti Devi vs Shehnaz Mansoor & Ors.
2010 Latest Caselaw 3463 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Judgment reserved on: 22.07.2010
%                              Judgment delivered on: 26.07.2010

+                          R.S.A. No.181/2007 &
                   C.M.Appl.Nos.9429/2007 & 3045/2008


KUNTI DEVI                                      ......... Appellant
                         Through:     Mr.P.D.Gupta, Advocate

                    Versus

1. SHEHNAZ MANSOOR
2. MANSOOR JAMAL
3. DELHI DEVELOPMENT AUTHORITY
4.MUNICIPAL CORPORATION OF DELHI      ..........Respondents
                  Through: Mr.L.K.Singh, Advocate for the
                           respondent no.1 &2.
                           Mr.Mitesh Mishra and
                           Mr.Shashi Ranjan, Advocates
                           for respondent no.3

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.

1. Kunti Devi is the appellant in this second appeal. She had

commenced litigation in the trial court by filing a suit for

permanent and mandatory injunction on 17.4.1996. It had been

averred that Mst.Shehnaz Mansoor and Mansoor Jamal

(respondents in the present appeal who have filed cross objections)

are illegal and unauthorized occupants in the suit property. She

had accordingly sought a prayer restraining them from making any

further construction in property no.6514, Ahata Kidara Estate,

Idgah Road, Delhi. A second prayer had been made that the

defendants should be directed to demolish all illegal/unauthorized

construction already raised by them.

2. The case of the plaintiff was that she had become the owner

of this property after the death of her husband Pishori Lal Sahni by

virtue of a will dated 26.9.1974. Her husband had purchased this

property from its erstwhile owner vide sale deed dated 7.1.1972. A

portion of this property measuring about 50 sq.yds. had been sold

to defendant no.1. A part portion was under the tenancy of Hari

Om who has since vacated the property and handed over the same

to defendant no.1 who was in unauthorized and illegal occupation

of the same.

3. Defendants no.1 & 2 in their written statement had stated

that the plaintiff has no right and title to the suit property. She has

sold the same to Vijay Kumar and Raman Kumar who in turn had

sold it to the answering defendants vide an agreement to sell dated

11.7.1994 and they are in legal and lawful occupation of the suit

premises.

4. Seven issues were framed before the trial court. Issues no.5

& 6 relating to the relief sought by the plaintiff for permanent and

mandatory injunction were decided together. It was held that the

plaintiff had proved Ex.PW-1/1 dated 7.1.1972 which was a

conveyance deed depicting the ownership of the property with her

husband. The letter of mutation executed by the MCD in her

favour was exhibited as Ex.PW-1/2. Trial court had further noted

that it was admitted case between the parties that the plaintiff had

thereafter sold some portion of the suit property to defendant no.1;

case of the defendant was that he had purchased this share of the

property from Raman Kumar and Vijay Kumar. The defendants had

proved on record Ex.DW-1/P-2 which was the judgment of the sub-

judge decreeing a suit for specific performance in favour of Raman

Kumar and Vijay Kumar directing the plaintiff i.e. Kunti Devi to

execute the sale deed in respect of half portion of the suit property

i.e. 6514, Sadar Thana Road, Western Side in favour of Raman

Kumar and Vijay Kumar. The defendants had proved this

document on record to substantiate their submission that in this

manner Raman Kumar and Vijay Kumar had become the owner of

this half portion of the property and defendants no.1 & 2 had

validly purchased this half portion from the said Vijay Kumar and

Raman Kumar in the year 1994. It had further come on record that

this decree for specific performance which was passed between the

parties had never been executed. Trial court had further held that

these facts which were material for the controversy in issue had

been concealed by the plaintiff. Her testimony was suspect. She

was not entitled to the discretionary relief sought by her for

mandatory injunction. Trial court had held that apart from the

decree Ex.DW-1/2 passed in the suit inter se between the Kunti

Devi and Raman Kumar and Vijay Kumar, there was no

documentary evidence of ownership of the suit property with

defendants no.1 & 2. Further the decree for specific performance

had not been executed and as such there was no effective legal

title with Raman Kumar and Vijay Kumar on the basis of which they

could have sold this property to Defendants no.1 & 2. Vijay Kumar

and Raman Kumar themselves not having got any sale deed

executed in their favour; they could not have transferred a better

title to defendants no.1 & 2 and as such defendants no.1 & 2 were

held to be unauthorized occupants in the suit property. Defendants

no.1 & 2 were however restrained from raising any illegal

construction in the suit property. Suit was disposed of in the above

terms.

5. Judgment of the trial court was upheld in appeal. The appeal

was disposed of on 21.4.2007. Appellate court had held that to

effect a transfer of immovable property of more than Rs.100/- a

compulsory registration under Section 17 of the Registration Act,

1908 is mandated. Provisions of Section 49 of the said Act were

also considered and their effect thereto. Findings of the trial court

were accordingly upheld.

6. The second appeal was admitted on 3.9.2008 on which date

the following substantial questions of law raised by the parties i.e.

by the appellant and the respondents (in their cross objections)

were formulated. Order dated 3.9.2008 inter alia reads as under:

"Whether the courts below were justified in declining the relief of mandatory injunction to the appellant after holding that the respondents no.1 and 2 were in unauthorized occupation of the suit property?"

Insofar as the cross-objection of the respondent are concerned, the following substantial question of law arises for consideration:-

"Whether the status of respondents no.1 & 2 in the suit property could be said to be that of an unauthorized occupant despite the fact that they claimed to be successor-in-interest of Raman Kumar and Vijay Kumar who enjoyed legal protection?"

7. Respondent has pleaded the doctrine of part performance as

contained in Section 53-A of the Transfer of Property Act

(hereinafter referred to as „the TPA‟) to substantiate his arguments

of a legal possession. For this proposition reliance has been placed

upon (2002) 3 SCC 676 Shrimant Shamrao Suryavanshi & Anr. vs.

Pralhad Bhairoba Suryavanshi (dead) by LRs & Ors. It is submitted

that keeping in view the object and purpose for which this

provision was engrafted in the said Act, the defence of a transferee

to protect his possession is available to the present respondent.

Reliance has also been placed upon AIR 1957 Andh.Pra.854

Yenugu Achayya & Anr. vs. Ernaki Venkata Subba Rao & Ors.; the

defence of possession by the transferee against the transferor can

be enforced. It is submitted that AIR 1983 Punjab & Haryana 323

Chaman Lal vs. Surinder Kumari also supports the stand of the

respondent; to the same effect is the propositions as laid down in

the judgment reported in AIR 2000 Bombay 337 Balasaheb

Manikarao Deshmukh and Anr. vs. Rama Lingoji Warthi.

8. The objection raised by the learned counsel for the appellant

that the defence of Section 53-A of the TPA had not been taken in

the written statement and nor raised in the first appeal; it cannot

now be agitated. This argument has to be noted only to be

rejected. The facts of the case are admitted; there is no dispute on

them. It is only the legality of the doctrine which has to be

interpreted and which finds specific reference in the cross

objections filed by the respondent. There is no merit in this

objection of the respondent.

9. Section 53-A of the Transfer of Property Act, 1882 has been

imported from the english equitable doctrine of part performance

which was inserted principally for the protection of ignorant

transferees who take possession or spend money for

improvements, relying upon documents which are ineffective as

transfers or on contracts which cannot be proved for want of

registration. The protection given by this Section is available to a

defendant who is in possession; being an exception to the express

provision that contracts of immovable property require compulsory

registration, such a defence if and when taken has to be strictly

construed.

10. The conditions necessary for the application of this doctrine

are:

(i) That the transferor has contracted 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;

(ii) that the transferee has in part performance of the contract take possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract;

(iii) that the transferee has done some act in furtherance of the contract; and

(iv) that the transferee has performed or is willing to perform his part of the contract.

This had been reiterated by the Supreme Court in AIR 1970

SC 546 Nathulal vs Phool Chand.

11. The contention of the defendant that the aforenoted

ingredients have been fulfilled in his case and he is entitled to the

defence under this doctrine of part performance finds force.

12. Admittedly, the suit inter se for specific performance and

permanent injunction filed by Vijay Kumar and Raman Kumar

against Kunti Devi had been decreed vide judgment Ex.DW-1/P-2

dated 21.7.1982 which has since attained finality. This judgment

had been passed by the court of Shri D.S.Bawa. Initially, the

plaintiff had not brought these facts to the knowledge of the court

but when the defendants produced a certified copy of the said

judgment, she had no answer. It was proved on record that in

terms of this judgment the plaintiff Kunti Devi had been directed to

execute the sale deed of half portion of the suit property in favour

of Raman Kumar and Vijay Kumar. It had also come on record that

this decree had not been executed and the sale deed had not been

executed by Kunti Devi in favour of Raman Kumar and Vijay

Kumar. The defendants were thus purchasers of this half portion

of the suit property from Raman Kumar and Vijay Kumar in whose

favour admittedly no sale deed had been executed. It has however

been proved on record that Raman Kumar and Vijay Kumar had

established their right to obtain a decree of specific performance

against Kunti Devi qua this suit property and in terms of which

they had transferred their rights in this suit property to the present

defendants. The present defendants are claiming their title

through Raman Kumar and Vijay Kumar. PW-1 in her version

before the trial judge has also admitted that the defendants are in

possession of this portion of the suit property since 1994 i.e. much

before her filing the present suit which had been filed by her on

17.4.1996.

13. In (2003) 7 SCC 350 Ramesh Chand Ardawatiya vs. Anil

Panjwani while construing the provisions of Section 53-A of the

TPA, the Supreme Court had held that if a transferee is in

possession in part performance of a contract for sale such a

transferee may protect his possession even against the true owner.

He will not have title to the property yet if he has been inducted

into the possession by the rightful owner and is in peaceful and

settled possession of such property he is entitled in law to protect

the possession until dispossessed by due process of law by a person

having a title better than what he has.

14. Applying the ratio of this judgment, it is clear that the

respondents had obtained valid and legal possessory rights from

Raman Kumar and Vijay Kumar and were in possession of the suit

property, even as per the plaintiff w.e.f. 1994. Respondents are

since then in peaceful and settled possession of this property. They

are thus entitled in law to the protective umbrella of a legal

possession until dispossessed by a due process of law. The finding

of the courts below in declaring them to be in unauthorized

possession and unlawful occupants is an incorrect finding based on

an incorrect proposition of law. Such a transferee is adequately

protected under Section 53-A of the Transfer of Property Act.

15. The cross-objection filed by the respondent are accordingly

answered as follows:

The respondents/defendants are protected under the shield

of Section 53-A of the Transfer of Property Act; respondent no.1 &

2 were successors in interest of Raman Kumar and Vijay Kumar

who had legal possessory rights who in turn transferred the same

to respondents no.1 & 2; respondents no.1 & 2 are not

unauthorized occupants but being in peaceful and settled

possession of this property are entitled in law to be protected until

dispossessed by a due process of law.

16. The substantial question of law raised by the appellant reads

as follows:

"Whether the courts below were justified in declining the relief of mandatory injunction to the appellant after holding that the respondents no.1 & 2 were in unauthorized occupation of the suit property?"

17. This question had been framed qua the query raised by the

appellant wherein she was aggrieved by the fact that her relief for

mandatory injunction had been declined notwithstanding the fact

that respondent no.1 & 2 had been held to be in unauthorized

occupation of the suit property.

18. The finding of this court on the cross objection preferred by

the respondents no.1 & 2 is that respondents no.1 & 2 are in legal

occupation of the suit property. Nevertheless this substantial

question of law has to be answered.

19. Plaintiff had filed a suit for permanent and mandatory

injunction. The title deed of the suit property Ex.PW-1/1 and the

letter of mutation executed by the MCD in her favour had been

proved as Ex.PW-1/2. It has also come on record that a decree for

specific performance had been passed in favour of Raman Kumar

and Vijay Kumar and the plaintiff Kunti Devi had been directed in

terms of judgment Ex.DW-1/P-2 to execute the sale deed in favour

of Raman Kumar and Vijay Kumar qua this suit property; yet this

decree remained unexecuted. The registered title of the suit

property continued to vest in name of the plaintiff.

20. The suit of the plaintiff had been partly decreed by the trial

court. Testimony of PW-1 the plaintiff who had proved these

documents of title had been taken into consideration. She was

admittedly not in possession of the suit property since 1994 i.e.

prior to the date of filing of the suit. The trial judge had

appreciated her version that she was making bi-monthly visits to

the suit property, not knowing how many floors are constructed

there or which part of the property had been illegally or

unauthorizedly constructed or when such construction had been

raised by respondents no.1 & 2 in the suit property. Written

statement filed by D-4/MCD was also rightly considered wherein it

had been stated that no unauthorized construction of the suit

property had been noticed by the department; the inspection note

was dated 13.1.2003.

21. The mere bald averment of the plaintiff that there was

unauthorized construction raised by the defendant without

specifying the details therein which remained unsupported by the

version of the MCD, was held to be one reason for declining to the

plaintiff the relief of mandatory injunction. There was yet another

reason. PW-1 in her version on oath had denied that any decree

dated 21.7.1982 had been passed against her in the suit filed by

Raman Kumar and Vijay Kumar for specific performance. In spite

of notice under Order 12 Rule 8 CPC having been served upon the

plaintiff to produce the documents relating to the said suit, she

failed to produce them. She even denied that any suit had been

filed by Rakesh Kumar and Vijay Kumar against her. It was only

when the judgment and the decree Ex.DW-1/P2 had been brought

on record that the plaintiff had no answer. These were held to be

material suppressions by the plaintiff which had been held to be

another ground for disentitling her to the discretionary relief of

mandatory injunction. Defendants were however restrained from

making any further construction in the suit property.

22. In ILR (2001) II Delhi 690 Rohit Dhawan Vs. G.K.Malhotra &

Anr. on an application under Order 39 Rule 1 & 2 CPC seeking

grant of a temporary injunction material facts relating to the

factum of the termination of earlier agreements between the

plaintiff and the defendant having been suppressed, the relief of

injunction had been refused. It was held that a deliberate attempt

on behalf of either party to suppress material facts would disentitle

such a party for such a relief.

23. In I (2009) SLT 231 G. Jaysharee & Ors. Vs. Bhagwandas S.

Patel & Ors., the Supreme Court had held while determining the lis

in a suit for specific performance of a contract, no legal principle in

absolute terms can be laid down; relief of mandatory injunction is

contained in Section 39 of the said Act; Court has to weigh the

amount of mischief done or threatened to the plaintiff and compare

it with that of the defendant in the event of grant of an injunction.

Applying the ratio of this principle the balance of convenience in

these circumstances does not lie in favour of such a plaintiff.

24. There is no dispute to the proposition that the relief of

injunction is a discretionary relief and a discretion which is vested

in the Court has to be exercised fairly, judiciously and not

capriciously or arbitrarily. Vital facts which have a direct and

material bearing on the case and which are deliberately and

intentionally not brought to the notice of the court in spite of

specific queries and questions raised amount to an intentional

concealment; such a party has not come to the court with clean

hands; such a party is not entitled to the discretion of the court.

25. Applying these principles as also the facts of the case it was

rightly held by the courts below that the plaintiff was not the right

person who could be relied upon to substantiate the averments that

there had been any illegal or unauthorized construction by the

defendants. The relief of mandatory injunction had rightly been

refused by the Courts below.

26. The argument of the learned counsel for the appellant that

the MCD had, in fact, played a fraud upon the court; the inspection

note dated 13.1.2003 evidences that the inspection had been

conducted in the year 2003 i.e. almost nine years after the plaintiff

had filed her suit; this delay in the inspection by the department

was for deliberately malafide reasons; the entire proceedings stand

vitiated is an argument which necessarily has to be repelled. This

is not a fact finding court; the two fact finding courts below were

the courts who could delve into the facts. The allegation of fraud

qua the MCD made at this stage does not in any manner advance

the substantial question of law which has been raised before this

court.

27. Substantial questions of law are answered accordingly.

Appeal is disposed of in the above terms. All the pending

applications are also disposed of.

INDERMEET KAUR, J.

JULY 26, 2010 rb