Ghanshyam vs Yogender Rathi
2011 Latest Caselaw 383 Del

A-7
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 21.01.2011


+            RSA No.314/2006 & CM No.10006/2008

GHANSHYAM                                 ...........Appellant
                         Through:    Mr.M.S. Krishnamoorthy,
                                     Advocate.

                   Versus

YOGENDER RATHI                            ..........Respondent
                         Through:    None.


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)

1. This appeal has impugned the judgment and decree dated

03.8.2006 which has endorsed the finding of the trial judge dated

18.8.2005 whereby the suit filed by the plaintiff Yogender Rathi

seeking a decree of possession and mesne profits had been decreed

in his favour.

2. This is a second appeal. On behalf of the appellant, it has

been argued that the Court below had erred in decreeing the

aforenoted suit on the purported documents of title set up by the

plaintiff i.e. agreement to sell, registered general power of

attorney, receipt dated 10.4.2002; the said documents could not be

relied upon to set up title in the absence of a registered sale deed

which the plaintiff did not have; the ownership of the plaintiff not

having been proved in the suit property, decree could not have

followed. The substantial questions of law have been formulated

on page 5 of the appeal. Counsel for the appellant has placed

reliance upon AIR 1987 Delhi 36 Imtiaz Ali Vs. Nasim Ahmed; AIR

2003 Delhi 120 G.Ram Vs. Delhi Development Authority ; (2009) 7

SCCC 363 Suraj Lamp & Industries (p) Ltd. Vs. State of Haryana &

Anr. to support his submission. It is pointed out that a transfer of

immovable property valued at more than `100/- can be effected

only through a registered sale deed. The agreement to sell, GPA,

affidavit and receipt could not thus confer or transfer title. It is

pointed out that in the judgment of the Apex Court report in Suraj

Lamp Industries (supra), the Court had deprecated this practice of

"power of attorney" sales.

3. None has appeared for the respondent in spite of service.

4. The trial court on the pleadings of the parties had framed

four issues. This contention now raised was not raised before the

trial judge. Even in the first appellate Court the grievance was

that the documents had been got executed by him fraudulently and

through mis-representation. Be that at it may, this Court shall deal

with this submission made by the learned counsel for the appellant.

5. The plaintiff in his plaint has specifically averred that the

defendant had executed the aforenoted document i.e, agreement to

sell, registered GPA, and receipt dated 10.4.2002 in his favour and

coupled with these documents the possession of the suit property

had been handed over by the defendant to the plaintiff on

10.4.2002 itself. The written statement filed by the defendant has

been perused. There is no specific denial on this count. It has not

been denied that the suit property has not been handed over to the

plaintiff. His contention was that these documents had been

prepared under mis-representation and in collusion with one Smt.

Gomati wherein signatures of the defendant had been obtained

fraudulently.

6. Before this Court today the execution of these documents has

not been disputed. Only question is; whether these documents had

created an effective title in favour of the plaintiff?

7. The evidence adduced before the Courts below had

established that apart from the aforenoted documents executed on

10.4.2002 the defendant had also given physical possession of the

property to the plaintiff. This court in 94 (2001) DLT 841 Asha M.

Jain Vs. Canara Bank & Ors. had occasion to examine the value of

such documents and if they could transfer title in favour of the

claiming party. In this judgment, the Court relying upon the

earlier judgment of this court reported in 76(1998) DLT 236 Kuldip

Singh Vs. Surinder Singh had observed that power of attorney sale

is a common mode of sale of immovable property in Delhi; where

such like documents i.e. power of attorney is for consideration and

the bargain is followed by delivery of possession it would amount

to a valid transfer. In this case, the aforenoted documents had

been executed for consideration and coupled with deliver of

possession, the Courts below had rightly relied upon them to

decree the suit in favour of the plaintiff. No substantial question of

law having arisen the appeal as also the pending application is

dismissed in limine.

INDERMEET KAUR, J.

JANUARY 21, 2011 nandan