Delhi High Court
Bimla Devi vs Delhi Development Authority & ... on 2 February, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 02.02.2011
+ RSA No.22/2011
BIMLA DEVI ...........Appellant
Through: Mr.Anuj Jain, Advocate.
Versus
DELHI DEVELOPMENT AUTHORITY & ORS.
..........Respondents
Through: Nemo.
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. (Oral)
CM No.2257/2011 (for exemption)
Allowed subject to just exceptions.
RSA No.22/2011
1. This appeal has impugned the judgment and decree dated
21.10.2010 which has endorsed the finding of the trial judge dated
27.11.2009 whereby the suit filed by the plaintiff Smt. Bimla Devi
seeking declaration, permanent and mandatory injunction against
the defendant no.1 and 2/Delhi Development Authority
(hereinafter referred to as 'the DDA') to the effect that letter of the
DDA dated 22.1.1999 cancelling the lease of plot bearing No.1,
Pocket No.1, Sector A-9, Narela Residential Scheme, Delhi (which
was a lease in favour of Daljeet Singh; defendant no.3) was
dismissed.
2. Plaintiff had allegedly purchased the aforenoted suit property
from defendant no.3 for a consideration of Rs.3,45,000/- vide
General Power of Attorney, Agreement to sell, Special power of
Attorney, Receipt, Affidavit, all dated 14.8.1995. Her contention
was that physical and vacant possession of the suit property had
been delivered to her on 12.3.1996. Admittedly on the date when
the said documents were executed i.e. on 14.8.1995 possession of
the suit property had not been given to the plaintiff.
3. Defendant no.3 had been proceeded ex parte. Defence of
defendants no.1 and 2 was that the plaintiff has no right or title to
the suit property; lease/allotment had been executed by the DDA in
favour of defendant no.3; there was no privity of contract with the
plaintiff.
4. Admittedly the allotment Ex.DW-1/1 issued by the DDA in
favour of defendant no.3 is dated 01.11.1992; this was for the
allotment of the alternate plot. The possession of this suit land had
been handed over to defendant no.3 vide Ex.DW-1/3 dated
28.2.1996. On the date when the aforenoted documents i.e. the
documents dated 14.8.1995 had been executed by the defendant
no.3 in favour of the plaintiff, defendant no.3 himself was not in
possession of the suit land; he had received possession of the suit
land only on 28.2.1996. Even in the plaint it has categorically been
contended that the documents dated 14.8.1995 by virtue of which
defendant no.3 had transferred title of the suit land to the plaintiff
were not coupled with the delivery of the vacant possession of the
suit land; possession had been given to him on 12.3.1996.
5. The judgment relied upon by the learned counsel for the
appellant reported in 1999 RLR 20 Kuldip Singh Suri Vs. Surinder
Singh; no doubt recognizes mode of sales of immovable property
through power of attorney but it has to be coupled with a delivery
of actual physical possession. The ratio of the said judgment is
inapplicable to this factual scenario as admittedly the date when
the documents i.e. power of attorney, receipt, will and affidavit
were executed by the defendant no.3 in favour of the plaintiff i.e.
on 14.8.1995; they had not been accompanied by the delivery of
physical possession of the suit land. This has been correctly
appreciated in the impugned judgment.
6. This is a second appeal Court. It is only when a substantial
question of law arises can this Court interfere; and on no other
count. Both the facts finding Courts below have delved into the
arguments now urged before this court. It was rightly held that
the plaintiff is not entitled to the equitable relief of injunction or
declaration as the aforenoted documents did not transfer title in
favour of the plaintiff. The lease deed Ex.DW-1/1 dated 21.6.1996
executed by the DDA in favour of Daljeet Singh also contained an
express bar of transfer of property for the next 10 years and
thereafter also only with the permission of the DDA. Admittedly as
is evident from the record no such permission had been taken.
The transfer of the land by Daljeet Singh in favour of the plaintiff
was not a valid transfer and was rightly so as held both the Courts
below.
7. The arguments of the learned counsel for the appellant that a
sale in future is recognized under Section 6 of the Transfer of
Property Act, 1882 is a misconceived argument and reliance for
this proposition upon the judgment reported in AIR(32) 1945 Cal
355 Prem Sukh Gulgulia Vs.Habib Ullah is misplaced. This was a
case where the agreement had embodied that if N was successful
in purchasing the properties at the execution sale which was to
take place on the next date, he would convey 1/3rd share to S and
if he fails to do so he would refund the said money to S; thereafter
he would execute the conveyance after confirmation of the sale.
This was a contingent agreement which was to be fulfilled on the
happening or a non-happening of an event. Reliance by the
learned counsel for the appellant on AIR 1976 Madras 321 The
Chief Controlling Revenue Authority Vs. Jagadambal is also
misplaced. This was a case under Section 57(1) of the Indian
Stamp Act and the bequeath of properties in terms of a will was
under question. This Court is unable to understand how this
judgment is applicable.
8. Substantial questions of law have been formulated on page 3
of the memo of appeal; they reads as follows:
a)What is the meaning of bonafide purchaser and ostensible
purchaser under Section 41 of Transfer of Property Act and
whether in the given facts and circumstances the findings of
Hon'ble Appellate Court and Trial court are perverse by holding
the appellant being not the bonafide purchaser/ostensible owner
of the property in question specially in view of Section 41 of
Transfer of property Act?
b)Whether under Section 5 & 6 of Transfer of Property Act, 1882,
the interest in the immovable property having been allotted by
Delhi Development Authority to one person with full consideration
amount paid and the number the property being given can be
transferred as handing over the possession of the same only
remained a mere formality which can be given in future?
c)Whether the finding of Appellate court and Trial Court are
perverse is not granting the decree of declaration as the Hon'ble
Courts below has held that there is no property transferred on
14.8.1995 by respondent no.3 to the appellant and accordingly
since there is no violation of terms and conditions of the allotment
letter and perpetual lease deed, there was no occasion for DDA
(respondent no.1 and 2) to cancel allotment letter and perpetual
lease deed on the ground of the transfer of the same.
d)Whether the DDA can unilaterally incorporate, modify, change
the terms and conditions of allotment by incorporating additional
condition in the lease deed which was absent in the allotment
letter?
e)Whether the DDA can be allowed to deviate from its rules,
regulations, notifications, circulars, scheme with regard to the
transfer of leasehold rights into freehold rights of the properties
purchased/sold by way of power of attorney, agreement to sell,
WILL, special power of attorney etc.?"
9. No such substantial question of law has arisen. Accordingly,
the appeal as also pending application is dismissed in limine.
INDERMEET KAUR, J.
FEBRUARY 02, 2011
nandan
