Suresh Kumar & Anr vs Saroj Atal
2012 Latest Caselaw 1424 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA No. 482/2011

%                                                            1st March, 2012


      SURESH KUMAR & ANR                                      ..... Appellants
                  Through :              Mr. Paramjit Singh and Mr. Sanjay
                                         Kathuria, Advocates.

                   versus

      SAROJ ATAL                                            ..... Respondent
                            Through :    Mr. Rajat Aneja and Mr. Vaibhav
                                         Jairaj, Advocates.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?



VALMIKI J. MEHTA, J. (ORAL)

1. The challenge by means of this Regular First Appeal (RFA) filed

under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the

impugned judgment of the trial Court dated 29.1.2011 decreeing the suit

filed by the respondent/plaintiff for possession and mesne profits with

respect to the property being Flat No. T-1, 3rd Floor (Front Side), P-92A,

Mayur Vihar Phase-I, Delhi. The impugned judgment is an ex parte

judgment as the appellants/defendants failed to appear in the suit in spite of

service. I am informed that the appellants/defendants had filed an

application under Order 9 Rule 13 CPC to set aside the impugned ex parte

judgment dated 29.1.2011, however, the application under Order 9 Rule 13

CPC has been dismissed, and the counsel for the appellants/defendants

admits that the order dismissing the application under Order 9 Rule 13 CPC

has not been appealed against. The scope of the present appeal is thus

confined to deciding the merits of the impugned judgment, on the position

that there is no pleading filed or evidence led on behalf of the

appellants/defendants.

2. The facts of the present case are that the respondent/plaintiff filed a

suit for possession and damages of the suit property on the ground that the

appellants/defendants had purchased a flat being the first floor, back side,

in the subject property from Smt. Kamlesh Gautam, wife of Sh. Raj Kumar

Gautam, and which flat was sealed by the bank, inasmuch as, the

appellants/defendants failed to repay a loan for which this first floor flat

was equitably mortgaged. When this flat was sealed by the bank, the

appellants/defendants asked the respondent/plaintiff for a short stay in the

suit property, which is the third floor flat, and this was allowed by the

respondent/plaintiff on account of humane consideration. Since the

appellants/defendants failed to vacate the property even after the original

period for which they were allowed to occupy and for the extended period

which is pleaded, ultimately, the subject suit for possession and mesne

profits came to be filed.

3. The respondent/plaintiff proved the documents with respect to the

suit property executed in their favour, being the Agreement to Sell, General

Power of Attorney, Special Power of Attorney and receipt, all of which are

dated 25.9.2001. Out of the aforesaid documents, the General Power of

Attorney and Special Power of Attorney have been duly registered with the

office of Sub-Registrar, Delhi. The respondent/plaintiff also proved and

exhibited before the trial Court an election card, Ex.PW1/6, the legal notice

dated 18.8.2010 as Ex.PW1/7, and the postal receipts pertaining to the

same as Ex. PW1/8 to Ex.PW1/14.

4. As already stated above, since the appellants/defendants failed to

contest the suit, there was no evidence led on their behalf, consequently,

believing the evidence led by the respondent/plaintiff, the suit for

possession was decreed.

5. Learned counsel for the appellants, on query from the Court, does

not dispute that no right, title or interest is claimed by the

appellants/defendants in the suit property. The rights which are claimed of

ownership are only with respect to the two floors on the first floor which

are said to have been purchased from Smt. Kamlesh Gautam, wife of Sh.

Raj Kumar Gautam. It is also not disputed that the appellants/defendants

are persons who in fact availed of the financial limit from HDFC Bank, and

it is the first floor flat which was sealed by the HDFC Bank in September,

2008, and which flat was given as equitable mortgage for the loan which

was taken by the appellants/defendants from the HDFC Bank. One thing,

therefore, is clear that with respect to one flat whatever ownership rights

which the appellants/defendants had qua that flat were fully exercised,

inasmuch as, qua that flat on the first floor loan was taken and equitable

mortgage was created in favor of the HDFC Bank qua that flat. Therefore,

it cannot be said that there is any equity in favour of the

appellants/defendants as they themselves equitably mortgaged with the

HDFC Bank the flat for taking loan and since the loan was not repaid, this

flat on the first floor was sealed by the bank under the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security Interest

Act, 2002. So far as the second flat which was purchased on the first floor

itself by the appellants/defendants from Smt. Kamlesh Gautam, wife of Sh.

Raj Kumar Gautam, a suit for possession has already been filed by the

appellants/defendants against Smt. Kamlesh Gautam and Sh. Raj Kumar

Gautam. Therefore, with respect to both the flats which were purchased by

the appellants/defendants from Smt. Kamlesh Gautam, wife of Sh. Raj

Kumar Gautam, the position is clear in that qua one flat ownership rights

have been exercised by equitably mortgaging the same with the HDFC

Bank and qua the other flat there are disputes with Smt. Kamlesh Gautam

and Sh. Raj Kumar Gautam for which the suit for possession has been filed.

6. Learned counsel for the appellant argues his case under two heads.

The first argument was that the respondent/plaintiff failed to prove any

license deed executed in favour of the appellants/defendants and therefore,

the appellants/defendants cannot be said to be licensee of the

respondent/plaintiff. The second argument is predicated on the basis of a

recent judgment of the Supreme Court in the case of Suraj Lamp

Industries Pvt. Ltd. Vs. State of Haryana and Anr. 183 (2011) DLT 1(SC)

that the documents dated 25.9.2001 executed in favour of the

respondent/plaintiff do not confer any ownership rights and therefore no

suit for possession on the basis of such documents would lie.

7. Before adverting to the arguments as advanced on behalf of the

appellants, it needs reiteration that there are no legal rights of the

appellants/defendants qua the suit property on the third floor, and also,

whatever legal rights were there with respect to the two first floor flats

purchased by the appellants/defendants, rights qua such flats have been

exercised by them i.e. one flat was equitably mortgaged and for the other

flat for which possession was not got from Smt. Kamlesh Gautam, the suit

for possession has been filed.

So far the arguments raised on behalf of the appellants/defendants

are concerned, both of them are interrelated. The arguments are inter-

related because if the documents on the basis of which the

respondent/plaintiff claims ownership are hit by the judgment of Supreme

Court in the case of Suraj Lamp (Supra), then the respondent/plaintiff

cannot be said to be the owner of the suit property, and it is for this reason

that the appellants/defendants have argued that the respondent/plaintiff is

not entitled to possession of the suit property. It is argued on behalf of the

appellants that if the respondent/plaintiff is not the owner of the suit

property, consequently, they cannot be licensees of the respondent/plaintiff,

and therefore, the suit for possession was bound to fail.

8. In my opinion, the issue in the present case is not ownership of the

suit property as is known in law of the respondent/plaintiff, but the issue as

to entitlement to recover possession of the suit property, even assuming

strict ownership may not rest with the respondent/plaintiff. Of course, the

judgment in the case of Suraj Lamp (Supra) squarely applies against the

respondent/plaintiff in the facts of the present case because the documents

in question executed in favour of the respondent/plaintiff are dated

25.9.2001 and the amended provision of Section 53A of the Transfer of

Property Act, 1882 came into force just one day before i.e. on 24.9.2001,

however, it would at best mean that ownership rights as is normally known

would not rest with the respondent/plaintiff, however, possessionary rights

of the suit property cannot be disputed to be that of the respondent/plaintiff.

These possessory rights were created in the year 2001 itself by means of

the documents executed in favour of the respondent/plaintiff. In a suit for

possession a plaintiff has to show better title i.e. entitlement than that of the

defendant and in the present case, besides the fact that respondent/plaintiff

has shown a better entitlement to possession by virtue of the documents

dated 25.9.2001 executed in her favour, the appellants/defendants

themselves do not have any equities in their favour inasmuch as qua both

the flats purchased by them rights have been exercised. Thus, even if the

respondent/plaintiff fails to prove the ownership rights stricto sensu to the

extent of entitlement of possession, the appellants/defendants cannot

defend the suit for possession once no title or interest in the suit property is

claimed by them. The respondent/plaintiff, therefore, need not strictly

prove, that a license deed ought to have been executed before the suit for

possession could be filed by respondent/plaintiff. A license is merely a

right to enter and exit a property and for which there is no deed which is

required to be drawn up. The stand thus of the appellants/defendants of

alleged collusion between the respondent/plaintiff and Smt. Kamlesh

Gautam-sister of the respondent/plaintiff, does not take the case of the

appellants any further because the registered documents executed in favour

of the respondent/plaintiff are of the year 2001 and admittedly

appellants/defendants admit to have got possession of the suit property in

2008. I also take on record the statement of the counsel for the

respondent/plaintiff that the relations of respondent/plaintiff with her sister

have gone bad on account of the dishonesty of her sister-Kamlesh Gautam

and her husband-Raj Kumar Gautam.

9. I may finally state that though I have given the detailed factual

position, legal position, reasoning and conclusions above, the same are only

in deference to the arguments raised on behalf of the appellants/defendants,

however, appellants/defendants really have no case, inasmuch as, they have

not contested the suit, were proceeded ex parte, their application to set

aside the ex parte judgment has already been dismissed, the dismissal order

has not been challenged further and there is therefore no pleading or

evidence of the appellants/defendants in the trial Court.

10. In view of the above, I do not find any reason to interfere with the

impugned judgment and decree. The present appeal is, therefore,

dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J.

MARCH 01, 2012 AK