Smt. Hardip Kaur vs Smt. Kailash & Anr.
2010 Latest Caselaw 4633 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELH
+                    RFA NO. 648 OF 2006

                                   Date of Decision: 1st October, 2010


#     SMT. HARDIP KAUR                            ..... Appellant
              Through: Mr. Pradeep Kumar Yadav, Mr. Kaushal
                       Yadav and Mr. H.M. Singh, Advocates

                                 Versus

$     SMT. KAILASH & ANR.                        ..... Respondents
^              Through: Mr. Sanjeev Sindhwani and Mr. Neeraj
                        Yadav, Advocates.


      CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN

1. Whether Reporters of local papers may be allowed to see
   the Judgment?(No)

2. To be referred to the Reporter or not?(No)

3. Whether the judgment should be reported in the digest?(No)


                         JUDGMENT

P.K.BHASIN, J:(ORAL)

The appellant is unsuccessful plaintiff in a suit for possession and

damages/mesne profits for unauthorized occupation of her property in

East of Kailash by the respondents herein and one Smt. Mohinder Kaur

who, however, had died during the pendency of the suit. The suit has

been dismissed by the trial Court vide judgment and decree dated 19th

September, 2006.

2. The suit for possession and damages/mesne profits was filed by the

appellant-plaintiff (who shall hereinafter referred to as 'the plaintiff') on

the allegations that she was owner of property no. E-318, East of Kailash,

New Delhi and she had agreed to sell the first and second floors of the

said property to Smt. Mohinder Kaur (who was impleaded in the suit as

defendant no. 1 and who shall hereinafter be referred to as 'the deceased

defendant no. 1') on 5th June, 1989 for a sale consideration of ` 4,50,000

and possession of the first and second floors was also handed over to her.

As per the agreement to sell the deceased defendant no. 1 was to take

certain steps for obtaining sale permission from the Delhi Development

Authority but she did not do that for three years and so the agreement

became time barred and unenforceable. On 9th March, 1992 the plaintiff

cancelled the General Power of Attorney executed by her in favour of the

son of the deceased defendant no. 1 and the deceased defendant no. 1

sometime in July/August 1992 allowed the defendants no. 2 and 3 to

illegally occupy first, second and third floors. The plaintiff then called

upon the defendants to hand over the vacant possession of her property to

her but they did not accede to that demand and, therefore, she filed the

suit for possession as well as damages/mesne profits for unauthorized

occupation of the three floors of her property (to be referred hereinafter as

'the suit property').

3. The deceased defendant no. 1 filed her written statement in which

her defence was that she had purchased three floors from the plaintiff and

she had further sold those floors to the defendants no. 2 and 3 vide

agreement to sell dated 1st September, 1992 executed by her in favour of

defendant no. 2. It was also pleaded that the plaintiff having already sold

the three floors to her vide agreement to sell dated 5th June, 1989 was

estopped from claiming that she was still the owner thereof. The deceased

defendant no. 1 also pleaded that she had no knowledge about the

cancellation of the sale documents and that in any event the General

Power of Attorney and agreement to sell executed by the plaintiff could

not be cancelled/revoked so the cancellation of the agreement to sell, if

any, was of no effect.

4. Defendants no. 2 and 3 filed a joint written statement in which they

took the plea, inter-alia, that they were not unauthorized occupants of the

suit property but were the lawful owners thereof having purchased the

same from the deceased defendant No.1 after execution of various

documents including an Agreement to Sell.

5. The aforesaid pleadings of the parties have left for the following

issues by the trial Court:-

1. Whether there exists any cause of action in favour of the plaintiff to file the present suit against the defendants 2 and 3? OPP.

2. Whether the suit has not been properly valued for the purposes of Court- fees and jurisdiction? OPD

3. Whether the agreement of sale executed by the plaintiff in favour of defendant no. 1 became time barred because of non-performance of agreement by defendant no. 1? If so, to what effect? OPP.

4. Whether the defendants 2 and 3 are the lawful owners in possession having purchased the property from defendant no. 1 for a valuable consideration? OPD.

5. Whether the plaintiff is the owner of the suit premises? OPD.

6. Whether the plaintiff had any right to terminate the registered General Power of Attorney executed in favour of defendant no. 1 dated 5th June, 1989? If so, its effect?

7. Whether the plaintiff is entitled to any mesne profits/damages. If so, at what rate, from whom and for what period?

8. Relief."

6. The learned trial Judge after considering the evidence adduced from

both the sides came to the conclusion that by virtue of various documents

executed by the plaintiff in favour of the deceased defendant No.1 and her

son the defendant No.1 had become the owner of the suit property and

consequently plaintiff could not have cancelled/revoked those documents

including the Agreement to Sell dated 5th June, 1989. It was also held

that, in fact, there was a default on the part of the plaintiff in performing

her part of the contract and that even if the deceased defendant no. 1 had

not perfected her title the suit could not be decreed. The learned trial

Court also rejected the plaintiff's claim that only first and second floors of

her property were agreed to be sold to the deceased defendant No.1 and it

came to the conclusion that even the terrace floor was agreed to be sold to

the deceased defendant No.1 by the plaintiff. As a consequence of these

findings, the plaintiff's suit came to be dismissed.

7. During the course of hearing of this appeal the arguments from the

side of the defendants no. 2 and 3(respondents herein) mainly centered

around the controversy as to whether the plaintiff could have revoked the

General Power of Attorney executed by her in favour of the son of the

deceased defendant No.1 as also the availability of the benefit of Section

53-B of the Transfer of Property Act to them. The counsel for the

plaintiff, however, argued that the trial Court has not considered at all the

effect of cancellation of the entire sale deal by her and had wrongly

confined its decision only on the revocability of the power of attorney

executed by her in favour of the son of the deceased defendant no. 1 and it

had also been wrongly concluded that the agreement to sell dated 5 th June,

1989 had not become unenforceable because of the deceased defendant

no. 1 not getting it specifically enforced within the limitation period.

8. However, I need not go into the merits of these rival submissions at

present for the view which I intend taking in the matter. The plaintiff

claimed to have cancelled the deal with the deceased defendant no. 1 for

the sale of the two floors of her property alleging breach of terms thereof

by the deceased defendant no. 1. The stand of the deceased defendant no.

1 in her written statement was that she had no knowledge of the

cancellation of various documents executed in her favour by the plaintiff

and also that the agreement to sell and the power of attorney in any case

could not be cancelled/revoked by the plaintiff since she had accepted the

sale consideration. Since the deceased defendant no. 1 had not admitted

the cancellation of the various documents executed by the plaintiff in her

favaour for the sale of the suit property to her before the execution of the

agreement to sell with defendant no. 2 the trial Court should have framed

an issue in respect of this material question of fact and returned its

findings on that issue. If such an issue had been framed the Court would

have come to the conclusion either to the effect that the agreement of sale

with the deceased defendant no. 1 to the knowledge of the deceased

defendant no. 1 or that the same had not been cancelled at all.

I am of the view that a very material issue of fact has not been

framed and tried by the trial Court which was essential for the right

decision of the case. So, it is a fit case for remand under Order XLI Rule

25 of the Code of Civil Procedure after framing an additional issue.

9. Accordingly, the following additional issue is framed:-

1. Whether the sale transaction between the plaintiff and deceased defendant no. 1 in respect of the suit property was cancelled by the plaintiff. If so, to what effect?

10. The matter is now remanded back to the trial Court with a direction

for giving its decision on the aforesaid additional issue and to return its

findings to this Court within three months.

11. The case shall be now taken up by the trial Court on 28th October,

2010 and the appeal shall be placed before the Court again for hearing

after receipt of the findings of the trial Court on the additional issue.

OCTOBER 01, 2010/pg                                         P.K. BHASIN,J