Shri Dal Chand (Deceased) Through ... vs Bharat Singh & Anr.
2011 Latest Caselaw 2560 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 12.05.2011

+                   R.S.A.No. 68/2011 & CM Nos.7569-71/2011

SHRI DAL CHAND (DECEASED) THROUGH HIS LRS
                                        ...........Appellant
                  Through: Mr. Kedar nath Tripathy,
                           Advocate.

                    Versus


BHARAT SINGH & ANR.                               ..........Respondent
                  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)

1 This appeal has impugned the judgment and decree dated

15.02.2011 which has reversed the finding of the trial Judge

22.10.2009. Vide judgment and decree dated 22.10.2009, the suit

filed by the plaintiff Bharat Singh seeking possession of the suit

property (plot measuring 50 sq. yards bearing khasra No.193/3,

Khichripur, Shahdara) had been dismissed. The impugned

judgment had reversed this finding; suit of the plaintiff stood

decreed.

2 This is a second appeal. It is yet at its admission stage. It is

pointed out that the impugned judgment decreeing the suit of the

plaintiff for possession of the suit property on the basis of

documents i.e. general power of attorney, agreement to sell,

receipt and Will is illegal; said documents do not create any title;

finding by the first appellate court on this score creating a title is

a perversity and is liable to be set aside.

3 The appeal as aforenoted is yet at the stage of admission.

Notice had not been issued to the respondents.

4 The case of the petitioner is that he has become owner of

the aforenoted suit property by virtue of the aforenoted

documents i.e. general power of attorney, agreement to sell,

receipt and Will all dated 13.12.1989 whereupon a sum of

`35,000/- had been paid by him to Kishan Lal and Kishan Lal had

executed the said documents in his favour; along with the

execution of the aforenoted documents vacant physical possession

of the suit property had also been delivered to the plaintiff on the

same day i.e. 13.12.1989. Kishan Lal had in fact purchased this

property from Dal Chand who was the original owner of this plot.

On 18.04.1990 when the plaintiff returned, he found that

defendants No. 1 & 2 had encroached upon his property and

raised a wall therein; criminal complaint was filed. Defendant

refused to hand over the property to the plaintiff; the plaintiff

learnt that the defendant is negotiating a fresh transaction of the

suit property.

5 The defence of the defendant was that he had not sold this

property to any person; they denied that the plaintiff had

purchased this property from the aforenoted person namely Kishal

Lal. As already noted, the trial Judge had dismissed the suit of the

plaintiff holding that these document do not create a interest in

his favour and in the absence of sale deed, it could not have done

so. The impugned judgment had held otherwise.

6 The finding returned in the impugned judgment as follows:-

"11. The suit property was originally owned by Dal Chand who has allegedly sold the same to Kishan Lal through GPA, agreement to sell and receipt dated 01.03.89. All these documents were marked though originals are placed on record. The receipt is duly registered with Sub Registrar. Kishan Lal on the basis of said documents has sold the suit property to the appellant and executed GPA, agreement to sell and receipt Ex.PW1/1 to 1/3 dated 13.12.89. The receipt is duly registered with Sub Registrar IV, Delhi. The bargain was followed by possession as PW1 categorically stated that possession was delivered to him by Kishan Lal. The plea of the respondents is that they have been in possession for the last more than six years is no more than a bald plea as no evidence to this effect is on the record. The documents coupled with delivery of possession created interest in favour of appellant by virtue of

section 202 of Indian Contract Act. In Rehmat Bee v. Noor Mohd. and others, 2010 (120) DRJ 85, it was held by their lordship in para 29 that "U/s 53A of Transfer of Property Act, the transferee who has got an unregistered document of a contract of sale in his favour coupled with actual delivery of possession of the suit property can use it as a protective shield against the transferor or any person claiming under him. It was held in para 31 that agreement to sell, power of attorney and receipt coupled with an oral evidence transfers the title of suit property in favour of plaintiff". In the instant case, GPA, agreement to sell and receipt were executed by Kishan Lal in favour of appellant. The receipt is duly registered. There was delivery of possession as apparent from the testimony of PW1 and there is no oral evidence from respondents to controvert the claim of the appellant. No doubt agreement to sell doesn't create any title but in the instant case, agreement to sell is followed by the execution of GPA and receipt and delivery of possession. All this show that there is transfer of title in favour of appellant. Reliance is placed upon Rehmat Bee v. Noor Mohd. and others, supra.

12. The respondents have claimed that they have been in possession for the last six years in their own rights. The respondents have not led any evidence to substantiate their claim with respect to their possession. They have further failed to explain the capacity in which they have been in possession of the suit property. They have even failed to explain that they have possessory rights to retain the possession of the suit property. A bald plea is not enough unless supported by an evidence.

13. The plea of the respondents is that receipt in question is false, fictitious and forged as it doesn't reflect plot No., khasra number, locality and area of plot. The plea is devoid of any merit. It is correct that receipt Ex.PW1/3 doesn't reflect the particulars of the suit property but the receipt has to be seen alongwith GPA and agreement to sell which reflects the description of the suit property. Merely because boundaries are not described, it doesn't mean that the document is fabricated. Moreover, the document in question i.e. receipt is duly registered and there is nothing to doubt its genuineness. The very

execution of GPA, agreement to sell and receipt show that seller knew which land has been sold. There is no evidence on the record to substantiate the plea advanced by the respondents.

14. There is transfer of title in favour of the appellant. The respondents have failed to show the capacity in which they have been in possession of the suit property as such appellant is entitled for the possession of the suit property. The respondents have failed to show their right, title or interest in the suit property as such they have no right to create third party interest of any kind in the suit property."

7 The court had noted that the execution of the aforenoted

documents coupled with the factum of delivery of possession

created an interest in immoveable property; further the defence

had not been able to establish their claim qua the suit property;

except their bald averment that they were the owners of the suit

property, no document to the said effect had been filed. This

finding in the impugned judgment does not suffer from a

perversity. It does not in any manner call for any interference.

8 Substantial questions of law have been embodied on page 2

of the body of the appeal. No substantial question of law has

arisen. Appeal as also pending applications are dismissed in

limine.

INDERMEET KAUR, J.

MAY 12, 2011 a