Delhi High Court

Sh.Suresh Kumar Sharma vs Sh.Fateh Bahadur Singh & Ors. on 28 March, 2011

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment reserved on: 23.3.2011
                         Judgment delivered on:28.3.2011


+            RSA No.129/2006 & CM No.5324/2006



SH.SURESH KUMAR SHARMA                 ...........Appellant
             Through: Mr.K.K.Rohtagi, Advocate.

                   Versus

SH.FATEH BAHADUR SINGH & ORS.                      ..........Respondents

                   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.

1. This appeal has impugned the judgment and decree dated

07.2.2006 which had endorsed the finding of the trial judge dated

21.8.2004 whereby the suit filed by the plaintiffs Fateh Bahadur

Singh and Ors. seeking possession and permanent injunction qua

the suit property i.e. the property bearing No.E-7/149, Sultanpuri,

Delhi had been decreed in his favour.

2. Case of the plaintiffs as is evident from the plaint is that their

father Balak Singh was allotted plot measuring 25 sq. yards by the

Delhi Development Authority (DDA) vide a possession slip in

Sultanpuri, in the year 1977. Their father had constructed a room

and boundary wall on the said plot and started living there. Gokal

Prasad (subsequently arrayed as defendant no.2) was granted

permissive user of the said plot by Balak singh. He was living

there jointly with Balak Singh. Balak Singh fell sick; he went back

to his native village for treatment where he remained confined to

bed for a long time. Balak Singh died in 1985. In July 1985,

plaintiff found that the defendant Suresh Kumar Sharma was

negotiating regarding this property; plaintiffs approached the

defendant and told him that this property belonged to their father

Balak Singh who is the exclusive owner of the said property. On

02.8.1985 notice was sent to Gokal Singh to deliver the possession

of the suit property back to the plaintiff; no person was found living

at the said address. Defendant came in occupation on this

property. On repeated requests by the plaintiff to the defendant

calling upon him to vacate the suit property; he paid no heed. Suit

was accordingly filed.

3. Defence of the defendant was that he had purchased this

property from Gokal Prasad for a valuable consideration and

transfer documents have been executed by Gokal Prasad in his

favour. Suit is also barred by Section 41(i) of the Specific Relief

Act. It is also bad for non-joinder of the parties.

4. Thereafter in the course of the proceedings Gokal Prasad

was also arrayed as a party and impleaded as defendant no.2.

5. Trial judge framed the following seven issued; they read as

follows:

"1. Whether the plaintiffs have no locus standi to file the present suit as alleged by the defendant? OPD

2. Whether the suit is bad for non-joinder of necessary parties as alleged by the defendant ?OPD

3. Whether the suit is barred under Section 451(i) of the Specific Relief Act as alleged by the defendant? OPD

4. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPD

5. Whether the suit is liable to be rejected u/o 7 Rule 11 CPC as alleged by the defendant? OPD

6. Whether the defendant is an unauthorized occupant in the suit property as alleged by the plaintiff? OPP

7. Whether the plaintiffs are entitled to a decree of possession and consequential relief of perpetual injunction as prayed for? OPP"

6. Issues no.6 and 7 are relevant for the present controversy.

On the basis of the oral and documentary evidence it was held that

Balak Singh was admittedly the original allottee of this suit land;

the documents purported to have been executed by the Gokal

Singh in favour of defendant no.1 (Suresh Kumar Sharma) had

been proved as Ex. DW-1/2 to Ex. PW-1/6 which were a GPA,

agreement to sell, affidavit, receipt and will; electricity and water

bills in the name of Gokal Prasad has also been proved as Ex. DW-

1/7 to Ex. DW-1/9. Gokal Singh had been impleaded as a party but

he had not filed a separate written statement. He has come into

the witness box as DW-2; he had supported the stand of the

defendant no.1 and on oath he deposed that he had purchased this

property from Balak Singh and thereafter he had sold it to the

present defendant i.e. Suresh Kumar Sharma. In his cross-

examination he could not give the detail of the date of purchase of

this property from Balak Singh. He admitted that for the sale-

purchase of a immovable property execution of transfer documents

is a must; he had no documentary proof to show that he had

purchased this property from Balak Singh except the allotment slip

Ex.DW-1/1. This allotment slip dated 07.11.1997 issued by the DDA

was admittedly in the name of Balak Singh. He denied the

suggestion that he was not the owner of the suit property and was

not in a position to execute the documents of transfer in favour of

Suresh Kumar Sharma i.e. defendant no.1. On the basis of this oral

and documentary which was adduced before the trial judge, the

trial judge had held that the defendant no.1 had failed to prove that

he has purchased this property from defendant no.2. Defendant

no.2 was not the owner of the suit property; he could not have

transferred title in favour of defendant no.1. The plaintiffs who

were admittedly legal heirs of Balak Singh were entitled to a

decree.

7. In appeal the impugned judgment had endorsed this finding.

The finding returned reads as follows:

"In order to decide the above issue, a primary question arose whether the seller of appellant had the right to transfer the property in his favour. In the entire evidence led on behalf of appellant before ld.trial court, the appellant had not been able to show any document by which the ownership of the property was transferred by Balak Singh to Gokul Prasad. This fact has been admitted by appellant during his cross examination when he examined himself as DW1. He stated that he did not have any proof to show that signature on the documents from DW-1/2 to DW/16 are of Gokul Prasad. He has also stated that except the possession slip in the name of Balak Singh, there is no other document of transfer in favour of Gokul Prasad. The appellant did not examine Gokul Prasad to support his case. Therefore I am unable to agree with the contention raised and grounds taken in this appeal that the impugned judgment has been passed on conjunctures, surmises, presumption. On the other hand I come to the conclusion that ld.Trial Court has rightly considered the evidence led by the appellant. The document Ex.DW-1/2 - Ex.DW- 1/6 not proved that same were executed by Gopal Dass as Gopal Dass or attesting witness not examined. Further no document placed on the record to prove that Balak Singh ever transferred the property to Gopal Dass. When Gopal Dass had no title how could he transferred any title to appellant. Therefore only document Ex.DW-1/2 to DW1/6 not sufficient to establish ownership of appellant in the suit property."

These are two concurrent finding of fact by the two courts

below.

8. This is a second appeal. It has been admitted; on 13.8.2007

the following substantial questions of law were formulated; they

read as follows:

1. Whether respondent no.1 to 6 are barred by the principle of Estoppel from claiming injunction and the possession of the suit property?

2. Whether respondent No.1 to 6 have by acquiescence and by delay of 16 years (1980-1996) lost their right of possession of the suit property?

9. On behalf of the appellant, it has been urged that the fact

findings of the two courts below are perverse. Attention has been

drawn to Section 114(i) of the Evidence Act; it is submitted that

there is a presumption that when a document which creates an

obligation is in the hands of the obligor, the obligation is

discharged. The Court below had wrongly held that the onus to

discharge title in favour of the defendant was upon the defendants;

the defendants had proved on record Ex.DW-1/2 to Ex.Dw-1/6;

establishing title of defendant no.1 in the suit land; thereafter it

was for the plaintiff to rebut this presumption but he has failed to

do so. To support this submission learned counsel for the appellant

has placed reliance upon AIR 2003 SC 4630 Citi Bank Vs. Standard

Charted Bank. It is pointed out that under Section 41 of the

Transfer of property Act an ostensible owner of the property

transfers the same for a consideration, the transfer cannot be

voidable on the ground that the transferor was not authorized to

make it. In this context, it is submitted that Gokal Prasad was well

within his right to have transferred rights in favour of Suresh

Kumar Sharma and this transfer cannot be challenged on the

ground that Gokal Prasad was not authorized to make it. For this

proposition learned counsel for the appellant has placed reliance

upon (1996) 7 SCC 55 Sankra Hali & Sankara Institute Vs. Kishori

Lal Goenka. Attention has also been drawn to Section 115 of the

Indian Evidence Act. It is submitted that the rule of estoppel is

also attracted and defendant no.1 who had on a representation

made to him by Gokal Prasad that he could validly execute the title

documents in his favour, had acted upon this representation and

equity now prohibits a challenge on this score. To support this

submission learned counsel for the appellant has placed reliance

upon AIR 1991 SC 1055 Indira Bai Vs. Anand Kishore. Reliance

has also been placed upon another judgment of Apex Court

reported in AIR 2003 SC 578 B.L.Sreedhar Vs. K.M. Munireddy. It

is pointed out that for all the aforenoted reasons the impugned

judgment of the Court below is liable to be set aside.

10. Record has been perused.

11. Admittedly Balak Singh was the original allottee of the suit

land. Ex.DW-1/1 evidence to this effect was also not disputed. The

defence of the defendant Suresh Kumar Sharma that he had

purchased this property from Gokal Prasad vide the aforenoted

documents Ex.DW-1/2 to Ex.DW-2/6 had been examined and re-

appreciated in the courts below. The question that had arisen for

decision was as to whether Gokal Prasad was himself in a position

to execute such title documents; Gokal Prasad had come into

witness box as DW-2 and he had admitted that there is no

documentary prove to show that he had purchased this property

from Balak Singh; except this bald submission there was no other

documentary evidence with Gokal Prasad to substantiate this fact;

in these circumstances the courts below had rightly held that

Gokal Prasad himself having no title in the suit premises could not

have executed any document of transfer in favour Suresh Kumar

Sharma. These are legal findings based on the oral and

documentary evidence as also the prevailing law. No person can

transfer a better title than that he himself possesses. Findings in

the impugned judgment on this score call for no interference.

12. Section 114(i) of the Evidence Act has no application. This is

a presumption which arises in favour of the obligor which may be

rebutted; this presumption would operate interse only between

defendant no.1 and defendant no.2 and has no effect on the status

of the plaintiff. Section 115 of the said Act has also no application.

This doctrine which is based on a principle of equity speaks of a

representation of fact made by one party which the other party has

believed it to be true and acted upon it; the first party then cannot

retreat from such a representation. This doctrine if applicable

would apply only qua defendants no.1 and 2.

13. Section 41 of the Transfer of Property Act reads as follows:

"41. Transfer by ostensible owner- Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it; provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."

14. It postulates that the consent either expressed or implied, of

the persons interested in immovable property has to be taken

before this section is made applicable. The proviso further states

that that the transferee must after taking reasonable care to

ascertain that the transferor had the power to make the transfer

and thereafter acted in good faith. In this case Gokal Prasad had

admitted in his deposition that he knew that transfer of title can

only be effected only by execution of title documents; he further

admitted that he had no documentary proof to show that Balak

Singh had sold this property to him. Applicability of this section

fails.

15. Substantial question no.2 was never a defence raised by the