Dinesh Chandra Das vs Jagdish Chandra Chanana ...
2011 Latest Caselaw 3830 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  RSA No.34/2011 & CM No. 2846/2011

%                                                     9th August, 2011
DINESH CHANDRA DAS                                          ...... Appellant

                                   Through:      Mr. H. Banerjee, Advocate
                               VERSUS

JAGDISH CHANDRA CHANANA (DECEASED)
THROUGH LRS.                                ...... Respondents

Through: Mr. Sanjiv Bahl and Mr. Vikram Arora, Advocates.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this regular second appeal is to

the impugned judgment dated 23.11.2010 passed by the Appellate

Court, and by which judgment, the Appellate Court set aside the

judgment of the trial court which had dismissed the suit for possession

of the plaintiff(now deceased and represented by his legal

heirs/respondents) and decreed the suit for possession and mesne

profits.

2. The facts of the case as stated in the plaint were that the

appellant herein had sold the subject property to the original plaintiff

by means of the usual documents being the Agreement to Sell, Power

of Attorney, Receipt etc., dated 9.4.1999. By means of these

documents, after the interest in the property was transferred to the

plaintiff, the appellant had entered into a rent agreement with the

plaintiff. It was also stated that subsequently another rent agreement

was executed between the parties on 7.3.2000. It was further the

case in the plaint that rent was paid by means of cheques till

execution of the second rent agreement, however, thereafter the rent

was not paid. The appellant laid out a defence in the written

statement that the documents in question were fabricated documents

as the signatures of the appellant/defendant were obtained on certain

blank and typed papers under the influence of liquor and a

representation had been made to him that he was only signing as a

witness to a money transaction between the original plaintiff and the

brother of the defendant. The appellant stated that he was a habitual

drunkard and the documents have been signed under coercion and

the influence of liquor. It was stated that the cheques which were

signed by him were blank and taken from him on the pretext of paying

installments of repayment of the loan given by the plaintiff to his

brother. It was argued that there was no question of selling of the

property because the value of the same was Rs.8,00,000/- whereas

the sale consideration was only Rs.80,000/-.

3. By the impugned judgment dated 23.11.2010, the

Appellate Court has referred to the proved documents being the

Agreement to Sell and Purchase (Ex.PW1/1), registered General Power

of Attorney (Ex.PW1/2), Receipt of Rs.80,000/- (Ex.PW1/3), the Rent

Agreements dated 9.4.1999 and 7.3.2000 (Ex.PW1/4 and Ex.PW1/5)

and other documents being the legal notices and the postal receipts to

come to a conclusion that actually the property was sold to the

original plaintiff and the appellant was thereafter inducted as a tenant

for which rent was paid by means of cheques. An issue had come up

as to whether the original documents by which interest was

transferred in the suit property were in the possession of the appellant

as was claimed by him or with the respondents, and to ascertain

which, the Appellate Court directed production of the documents and

it was found that the documents were in fact in the control and

possession of the respondents who produced the same. It was thus

established that the stand taken up by the appellant/defendant that

the original documents of transfer of interest in the property were with

him was false. The Appellate Court has thereafter referred to various

inconsistencies in the evidence on behalf of the appellant and also the

fact that no suggestions were given to the witnesses of the plaintiff

that the subject documents were executed under the influence of

liquor. The appellant/defendant in fact went to the extent of denying

his own signatures on the written statement filed by him in the suit

and also denied the signatures on the vakalatnama filed. The

Appellate Court has thereafter referred to the fact that by means of

the subject documents, interest in the property was transferred and

reference was made to Kuldeep Singh Suri Vs. Surinder Singh

1999 RLR 20. The Appellate Court thereafter referred to Section 116

of the Evidence Act, 1872 to arrive at a finding that the appellant is

estopped from denying the title of the respondents to the property

because a tenant had no right to dispute the ownership of the

landlord.

4. Learned counsel for the appellant argued that the

Appellate Court fell into an error in setting aside the judgment of the

trial court because the Appellate Court has proceeded as if the suit

was a suit by an owner for possession against a trespasser whereas,

the suit was a suit for possession by a landlord against a tenant and

since relationship of landlord and tenant has not been established, the

Appellate Court has committed a perversity which raises a substantial

question of law.

5. In my opinion, the contention of the counsel for the appellant is

wholly misconceived. The Appellate Court besides referring to the

documents of transfer of interest in the property being Agreement to

Sell, Power of Attorney, Receipt etc., has referred to the Rent

Agreements dated 9.4.1999 and 7.3.2000 which have been exhibited

as Ex.PW1/4 and Ex.PW1/5. The facts with respect to payment of rent

by cheques are also on record. I may note that in Delhi transfer of

interest in an immovable property was taking place pursuant to

Section 53 A of the Transfer of Property Act, 1882 which dealt with the

doctrine of part performance and also irrevocability of a General

Power of Attorney given for consideration by virtue of Section 202 of

the Contract Act, 1872. Such transactions have been recognized by a

Division Bench of this court in the judgment of Asha M. Jain Vs.

Canara Bank & Ors 2001 (94) DLT 841. The trial court therefore

had erred in holding that such documents did not transfer interest in

the property and the Appellate Court has therefore rightly arrived at a

finding that such documents in fact did transfer interest in the

property. As already stated, the relationship was proved by means of

exhibiting of Rent Agreements and the fact that cheques were in fact

given for payment towards rent. The Appellate Court was also rightly

entitled to disbelieve the appellant who stated that documents were

signed from him under coercion and the influence of liquor, because in

my opinion, the plea of coercion and signing under influence of liquor

are clearly irreconcilable because if the person is under influence of

liquor, he cannot be said to have signed the documents under

coercion and at best it would amount to lack of necessary state of

mind to enter into valid documentation. Further, if really the appellant

was allegedly under the influence of liquor and had accordingly signed

the documents, there was no question of thereafter signing a

subsequent rent agreement and also making payments of rent by

cheques. It is unbelievable that appellant would make payment of

monies on the ground that the appellant was allegedly repaying the

loan which was given to his own brother. The entire case as set up

was unbelievable especially as the appellant denied his own

signatures on the written statement as also on the vakalatnama filed

in favour of his counsel.

The argument that the property could not have been transferred

because consideration stated in the document was inadequate is

without merit because inadequacy of consideration is never a ground

for setting aside a transaction. Unfortunately, on many an occasion,

for some reason or the other, parties sometimes choose not to put the

entire consideration in the documents, by which, interest in the

property is transferred. So far as the stated consideration of

Rs.80,000/- is concerned, it has been admitted to have been received

by the appellant by means of encashment of the cheque which have

been credited to his account. I may also note that at no point of time

any notice was given by the appellant that the original plaintiff had

got the documents signed from him under the influence of liquor and

therefore the said documents have no effect in law.

6. Before a second appeal under Section 100 CPC is

entertained, existence of a substantial question of law is a sine qua

non. It is not the existence of only a question of law but a substantial

question of law. In my opinion, the aforesaid facts do not show any

perversity in the impugned judgment of the Appellate Court so as to

raise a substantial question of law. In fact, if I would sit as a court of

first appeal, the impugned judgment would not be liable to be set

aside because it exhaustively discusses the exhibited documents, one

of which was registered being the General Power of Attorney, the

execution of the rent agreements and payments of rent by means of

cheques and the lack of credibility in the stand of the appellant.

7. In view of the above, there is no merit in the second appeal

which is therefore dismissed leaving the parties to bear their own

costs. Trial court record be sent back.

AUGUST 09, 2011                                VALMIKI J. MEHTA, J.
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