Delhi High Court
Dilip Jain vs Kishan Pal & Anr. on 26 July, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.87/2011
% July 26th, 2011
DILIP JAIN ...... Appellant
Through: Mr. C.S.Bhandari, Advocate
VERSUS
KISHAN PAL & 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?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
+ CM No. 10705/2011 (U/o 32 Rule 15 CPC)
This is an application for appointing the father of the appellant to
prosecute the appeal on the ground that the appellant is of unsound mind.
On a query to the counsel for the appellant, it transpires that the appellant in
fact is in jail for certain offences. I, therefore, while allowing the present
application make it absolutely clear that I am allowing the present
application only for the limited purpose for hearing arguments in this appeal
which in any case is without merits and is being dismissed. The present
RSA 87/2011. Page 1 of 6
application is therefore allowed for a very limited purpose for arguments of
the present RSA only.
Nothing contained in this order will in any manner be used by the
appellant Sh. Dilip Jain in the criminal cases which are said to be pending
against him.
Application stands disposed of.
CM No.10704/2011 (Exemption)
Exemption allowed subject to just exceptions.
CM stands disposed of.
CM No.10706/2011 (delay in re-filing)
Delay of 40 days in re-filing the appeal is condoned subject to just
exceptions.
CM stands disposed of.
+RSA No. 87/2011
1. The present regular second appeal challenges the impugned judgment
of the appellate court dated 16.12.2010, which has dismissed the appeal of
the present appellant against the judgment and decree of the first court
dated 14.7.2009 whereby the suit for specific performance and possession
was decreed.
2. The facts of the case are that the respondents filed a suit for specific
performance and possession against the appellant/defendant with the
averments that the appellant had agreed to sell the shop premises
RSA 87/2011. Page 2 of 6
measuring 7.7 sq. yards (8 X 10) out of Khasra No. 697, Nathu Colony,
Village Saboli, Shahdara, Delhi. The right to the property was claimed by
plaintiffs/respondents by virtue of registered documents being the
Agreement to Sell, General Power of Attorney and Receipt dated 21.4.1989.
The appellant in his defence alleged that the documents were not the
documents of transfer or title but were executed allegedly for a loan of
Rs.50,000/-. The appellant has been disbelieved by both the courts below
and it has been held that the documents in questions were in fact documents
of transfer of titling the property for a sum of Rs.2,50,000/-. The trial court
has succinctly given the appropriate findings in paras 16 to 18 of the
impugned judgment and which reads as under:-
"16. In the instant case, the appellant has alleged that in
December, 01 a sum of Rs.50000/- was taken as a loan from
respondents against the security of the documents Ex.PW1/A
to C dated 21.04.89. It is quite strange that exact date of
taking the loan is (not sic) reflected by the appellant. There is
no writing to this effect. There is no evidence to this effect.
More bard assertion is not enough. The second plea that a
sum of Rs.2.50 lacs was not given to him also doesn't find
support from the record. There is no evidence from the
appellant in support of his contention. On this contrary, the
evidence adduced by the respondents is cogent and
convincing. PW1&2 have categorically stated that appellant
agreed to sell the suit property for a sum of Rs.2.50 lacs. The
payment was made to the appellant by them in the presence
of PW3 who has fully supported the case of the respondents.
There is nothing on the record that PW3 has any motive to
depose against the appellant. Nothing has come on record to
view his testimony with the aid of spectacles. On 19.01.02
parties to the suit alongwith PW3 and father of the appellant
went to the office of Sub-Registrar-IV, Delhi where PW4
drafted the documents namely GPA, agreement to sell,
affidavit, Will, and receipt dated 19.01.02 at the instructions
RSA 87/2011. Page 3 of 6
of the appellant who even paid the charges to him. There is
nothing in his cross examination that documents in question
were not drafted as per the dictation of the appellant. Sh.
Shivsen Jain was also present at the time of the execution of
documents in question and he has put his signatures on
documents namely Ex.PW1/D to H. He could have easily
objected at that time if payment was not received by the
appellant. The documents Ex.PW1/A to C of the suit property
in the favour of appellant were handed over to the
respondents. The GPA Ex.PW1/D was duly presented for
registration before Sub-Registrar-IV, Seelampur, Delhi. The
said document is duly registered. There is a presumption that
a registered document is validly executed. All this show that
the documents namely Ex.PW1/D to H were duly executed by
the appellant in favour of respondents after the receipt of
entire sale consideration amount of Rs.2.50 lacs. The
appellant has failed to prove by leading any evidence that
consideration amount was not paid by the respondents to
him. The appellant has failed to prove that the documents
were executed without any consideration.
17. Learned counsel for the appellant submitted that GPA
Ex.PW1/D in favour of respondents was duly concelled by him
through cancellation deed Ex.DW1/4 as such no support could
be drawn from Ex.PW1/D. Heard and perused the record. It is
clear from the record that the appellant executed GPA,
agreement to sell, Will, receipt and affidavit Ex.PW1/D to H in
favour of the respondents. He has received the entire sale
consideration amount was paid to the appellant. The GPA was
registered. The constructive possession was given. In these
circumstances, an interest stands created in favour of the
respondents U/s 202 of Indian Contract Act, 1872. Support is
drawn from Asha M. Jain v. Canara Bank and others, 94
(2001) DLT 841 and Shikha Properties Pvt. Ltd. v.
S.Bhagwat and others, Manu/DE/0159/1998. No notice
was given by the appellant to the respondents before
cancellation of the attorney Ex.PW1/D and all these facts to
my mind, the cancellation of GPA Ex.PW1/D doesn't have any
effect.
18. Learned counsel for the appellant submitted that
possession was not delivered to the respondents because
entire payment was not received. Learned counsel for the
respondents, on the other hand, urged to the contrary. Heard
RSA 87/2011. Page 4 of 6
and perused the record. The documents in question reflect
that possession of the suit property has been handed over to
the respondents though in fact physical possession was not
delivered. The constructive possession was given to the
respondents by executing the documents. The appellant was
allowed to remain in the suit property at his request as such
argument doesn't hold water." (underlining added)
3. In my opinion, no fault whatsoever can be found in the aforesaid
findings inasmuch as it has been established on record that the appellant
went to the office of the Sub-Registrar where the documents were drafted by
PW-4 Sh. M.P.Singh, Advocate. It has been further established that
thereafter there was registration before the sub-Registrar. PW-3 Sh. Omkar
proved the payment of money of Rs.2.5 lacs in his presence. The most
important aspect is that the appellant/defendant led no evidence and his
evidence was closed. The orders by which the evidence was closed was
thereafter sought to be recalled by filing of an application for leading
additional evidence and which was dismissed. Both these orders became
final as the same were not challenged by the appellant.
4. It is necessary before a regular second appeal can be entertained that
there must arise not only a question of law but a substantial question of law.
Where there are registered documents which show transfer of interest in the
property by virtue of provisions of Section 53-A of the Transfer of Property
Act, 1882 read with 202 of the Contract Act, 1872, it cannot be believed that
the interest in the property was not transferred. A Division Bench of this
RSA 87/2011. Page 5 of 6
court has upheld the nature of such transactions in its judgment reported as
Asha M. Jain Vs. Canara Bank & Ors 1994 (2001) DLT 841.
5. No substantial question of law arises.
6. Dismissed.
JULY 26, 2011 VALMIKI J. MEHTA, J.
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