Smt. Kamlesh Kaur vs R.K.Gupta & Anr.
2011 Latest Caselaw 282 Del

 *          IN THE HIGH COURT OF DELHI AT NEW DELHI
 +                        RFA No. 556/1999


 %                                                    18th January, 2011
SMT. KAMLESH KAUR                                        ...... Appellant
                                       Through:    Mr. Paramjit S. Bindra,
                                                   Adv.
                          VERSUS

R.K.GUPTA & ANR.                                   ...... Respondents

                                       Through:    None.

 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? Yes

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

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of the present first appeal under Section

96 of the Code of Civil Procedure, 1908 is to the impugned judgment

and decree dated 24.7.1999 whereby the suit of the

respondents/plaintiffs for possession and mesne profits was decreed

against the appellant/defendant.

2. The facts of the case are that one Sh. Ram Singh was the owner

of the suit property being Flat No. C-216, DDA Flats, Saket, New Delhi.

Sh. Ram Singh died on 20.1.1995 and whereafter this flat was

transferred in the name of his widow Smt. Jagdip Kaur because all

other legal heirs executed relinquishment deeds in favour of Smt.

Jagdip Kaur. One such legal heir was Sh. Trilochan Singh, husband of

the appellant. Smt. Jagdip Kaur, by means of the usual documents as

prevalent in Delhi being the agreement to sell, power of attorney and

affidavit etc., transferred the property for consideration in favour of

respondents/plaintiffs. Since the appellant had no title in the property,

she was claiming only as a licensee through her husband who was the

co-owner, and because the appellant failed to vacate the property, the

subject suit for possession and mesne profits was filed.

3. After the pleadings were complete, the trial court framed the

following issues.

1. Whether O.P.Gupta plaintiff No.2 is the owner of the premises in dispute? OPP

2. Whether the suit is liable to be stayed u/s 10 CPC? OPD

3. Whether the suit is not maintainable as alleged in preliminary objection of the WS?OPD

4. Whether the suit has not been properly valued and this court has no pecuniary jurisdiction to try the suit?

5. Whether the defendant is in possession of the whole house?

6. Whether the plaintiff No.2 is entitled to possession of the premises?

7. Whether the occupation of the premises of the defendant is lawful in its own right? OPP

8. Whether plaintiff No.2 is entitled to claim mesne profits and damages from defendant @ Rs.1000/- per month?

9. Relief.

4. The core issues which have been decided by the trial court are

Issue Nos.1 and 7. These issues have been dealt with in paragraphs 6

to 8 and 14 of the impugned judgment and which read as under:-

"6. From the evidence which has come on record and from the documents proved and placed on record what transpires is that flat No.2 C-216, Malviya Nagar, Saket residential scheme originally belonged to Shri Ram Singh. Ms. Jagdip Kaur is daughter of Ram Singh. Ram Singh died on 20.01.95. After death of Ram Singh this flat was transferred in the name of Ms. Jagdip Kaur in the record of DDA. All legal heirs of Ram Singh executed relinquishment deed in favour of Ms. Jagdip Kaur and they also filed their affidavits that none of the other legal heirs would make any claim in respect of the property. Ram Singh had left behind following legal heirs:-

     S.No. NAME               AGE             MAJOR/MINOR       RELATIONSHIP WITH THE

     DECEASED

     1.   Sujan Kaur      65 Yrs.     Major         Wife
     2.   Jasbir Singh    39 Yrs.     Major         Son
     3.   Trilochan Singh 34 Yrs.    Major         Son
     4.   Mohinder Singh 32 Yrs.     Major          Son
     5.   Gurdeep Sihgn    30 Yrs.   Major          Son
     6.   Prakash Kaur     42 Yrs.    Major          Daughter
     7.   Jagdeep Kaur     35 Yrs.    Major          Daughter

8. The plaintiff No.2 was sold this property by Jagdip Kaur. The selling was done by accepting the entire consideration and execution documents like Power of Attorney, Agreement to Sell, Affidavit of Jagdip Kaur, etc. The defendant has raised the issue that the plaintiff had no authority to file this suit since he was not the registered owner of the property. The suit has been filed in the name of the attorney himself and in the of proposed buyer.

The counsel for plaintiffs stated that for practical purposes plaintiff No.2 was the owner of the property. He was handed over possession of the property by the previous owner and he paid entire consideration. It is contended that plaintiff had every right

to file the suit. Plaintiff relied upon 79(1999)DLT PAGE 210 wherein the Hon‟ble High Court was dealing with a case of landlord and tenant and the Hon‟ble High Court held that a person invoking sec. 14(e) of DRCA need not be absolute owner. The Hon‟ble High Court further held that in Delhi it is common knowledge that property is transferred and re-transferred on the basis of Power of Attorney and the word „owner‟ has not to be construed in the strictest sense and a transferee on the basis of second power of attorney can file the eviction of a tenant, which property had been constructed by the previous transferee and who has inducted the tenant on the basis of second power of attorney. I consider that the same principle will apply in the present case also. In that case the question was of a tenant; in the present case the defendant is not even a tenant. Her husband was only living in the premises because he was son of Ram Singh. After the death of Ram Singh his share in the property was 1/7 th which he relinquished in favour of Jagdip Kaur. So, he was not left with any share. Defendant right flew from her husband. She had a right over the property of her husband and not over any other property. I, therefore, consider that if she was living in a premises which did not belong to her husband during the lift time of Ram Singh, she was living only as a licencee and after the death of Ram Singh also her status could not be more than that of a licencee. I, therefore, consider that in respect of a licencee and trespasser, plaintiff No.2 who has purchased the property on the basis of power of attorney, Agreement to Sell and has paid entire consideration can bring a suit for possession. He is the owner of premises for all practical purposes. I, therefore, decide this issue in favour of the plaintiff and against the defendants.

14. The defendant has not stated under what right she was in possession of the property. She simply stated that she was in lawful possession of the property. She is not the owner of the property. She is not tenant in the property. She does not claim to be licencee of the property. According to her own testimony, the property originally belonged to Ram Singh, her father in law and after his death seven legal heirs became owner of the property. Her husband was one of those legal heirs who was entitled to 1/7 th share. She. under no stretch of imagination, can be said to be in lawful possession of the property. In view of the fact that her husband relinquished his rights in favour of his sister and his sister sold out the property to the plaintiff No.2, the contention of the defendant that she was in possession of the property as a matter of right, therefore, is not correct. A person can be in lawful

possession of the property only if he is owner of the property or he is in the property by the owner or he has acquired the property by prescription. None is the case of the defendant. The issue is, therefore, decided against the defendant and in favour of the plaintiff."

5. No fault can be found with the aforesaid discussion and

conclusions of the trial court because it is not necessary and as argued

by the learned counsel for the appellant that there has to be a

registered title document in favour of the respondents/plaintiffs. By

virtue of Section 53-A of the Transfer of Property Act, 1882 as then

applicable, and Section 202 of the Contract Act, 1872 transfer of

properties were taking place in Delhi by means of agreement to sell,

power of attorney, will, affidavit etc., and which is now a recognized

mode of transaction. The sum and substance of these documents is

that the rights to enjoy the benefit of the property including possession

is given to the person in whose favour these documents are executed.

Accordingly, I do not agree with the counsel for the appellant that the

suit was not maintainable because there was no registered title in

favour of the owner of the property. The respondents had the

necessary right and title so required to claim possession from the

appellant.

6. Another issue which was argued by learned counsel for the

appellant was that the appellant had a right to possesses the property

in lieu of a right of maintenance under Section 39 of the Transfer of

Property Act, 1882. Clearly, this argument is wholly misconceived

because admittedly, this plea which has a factual basis was not raised

in the pleadings in the trial court and nor was any issue framed on the

same and also no arguments on this basis were advanced before the

Trial Court. The counsel for the appellant argues that the plea of

defence under Section 39 is a legal plea and therefore ought to be

entertained by this court. I am however unable to agree for the reason

that there are various defences which are available to a person when a

right is claimed by an opposite party under Section 39 of the Transfer

of Property Act. These defences include the defence that the

transferee is a bonafide purchaser for value without notice. Therefore,

if the benefit of Section 39 of the Transfer of Property Act, assuming

the same was available to the appellant, was required to be

adjudicated, it was necessary that the same ought to have been raised

in the pleadings so that an adequate opportunity was given to the

respondents to meet the case and to take appropriate defences and to

lead evidence in support of the defences. In the facts of the present

case therefore, the appellant cannot raise the plea under Section 39 of

the Transfer of Property Act which is not a legal issue and the same is

a mixed question of fact and law requiring evidence.

7. In view of the above, since the respondents/plaintiffs are very

much entitled to the benefits of the subject property including

possession and the fact that the appellant has no legal title to the

property I do not find any error in the impugned judgment and decree.

The appeal is therefore dismissed leaving the parties to bear their own

costs. Interim orders stand vacated. Trial Court record be sent back.

JANUARY 18, 2011                               VALMIKI J. MEHTA,J
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