Prem Raj vs Babu Ram Gupta & Others
2012 Latest Caselaw 5237 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CS(OS) No. 2043/1989
%                                                            3rd September, 2012

         PREM RAJ                                         ......Plaintiff
                            Through:     Mr. V.P.Chaudhary, Sr. Adv. with Mr.
                                         Mritunjay Chaudhary, Adv.


                            VERSUS

         BABU RAM GUPTA & OTHERS                ..... Defendants
                     Through: Mr. Dinesh Kumar Gupta and Mr. Vikas
                              Mishra, Adv. for D-4 and D-9.

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

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.

The subject suit has been filed by the plaintiff for declaration and possession

with respect to the plot bearing no. 5, Block No. 60, W.E.A. Ramjas Road, Karol

Bagh, New Delhi, admeasuring 569 sq. yards (hereinafter the suit property). The

plaintiff claims various reliefs of declarations and possession qua the suit property

effectively to get cancelled the sale deed dated 3.9.1983 executed in favour of the

defendant nos. 1 and 2 by the defendant no.3 as the power of attorney holder of the

plaintiff, and the subsequent sale deed dated 6.8.1984 executed by the defendant

nos. 1 and 2 in favour of defendant no.4. Mesne profits are also claimed.

Presently the owner of the property is defendant No.9 under the sale deed dated

14.9.2006 executed by the defendant No.4.

2. Though there are a total of nine reliefs which are claimed in the plaint, in

sum and substance what the plaintiff seeks is cancellation of all documents

whereby ownership of the suit property is vested presently with the defendant no.9

and for revesting of the same with the plaintiff. It is not disputed between the

parties that defendant no.9 is as on date claiming ownership of the suit property

under a registered sale deed dated 14.9.2006. This document will also have to be

cancelled in case the plaintiff has to be granted reliefs in the present suit, though

such a relief is not claimed in the suit plaint.

3. Before proceeding ahead I must note that the original plaintiff in the suit one

Sh. Prem Raj who had entered into two Agreements to Sell dated 9.2.1981 (Ex.P-

2) and 14.4.1981 (Ex. PW1/D5) with the defendant nos. 1 and 2 with respect to the

suit property, died during the pendency of the suit and his legal heirs have been

brought on record. Some of the legal heirs have further died and legal heirs of

such legal heirs have also been brought on record. For the sake of convenience

reference in this judgment to the plaintiff would mean to the original plaintiff, and

wherever the context so requires then to his legal heirs.

4. The facts of the case are that the plaintiff was the perpetual lessee of

the suit property under a lease deed executed in his favour by the Delhi

Improvement Trust on 27.08.1943. As per the plaint (and which has been

amended about four times) what the plaintiff states is that plaintiff had entered into

two Agreements to Sell dated 9.2.1981 and 14.4.1981, Ex. P-2 and Ex.PW1/D5,

with the defendant Nos. 1 & 2 for a total consideration of ` 95,000/- of which `

85,000/- is said to have been received as per the plaint, though now before me it is

admitted that the entire consideration has been received by the plaintiff. The

plaintiff had also executed two Power of Attorneys. First is a Special Power of

Attorney dated 14.04.1981 (Ex. D-4/4) in favour of the defendant No. 3 (wife of

defendant No.1) for making necessary applications with all the Governmental

Authorities; and the second General Power of Attorney (Ex. D4/5) of the same date

(which is a registered Power of Attorney) entitles the defendant No.3 to act on

behalf of the plaintiff in any and every manner with respect to the suit property.

As per the plaint, the said two power of attorneys have been cancelled by the

plaintiff by means of a registered notice dated 17.02.1983. There are further

averments in the amended plaint with respect to the transaction encompassed in the

Agreements to Sell dated 09.02.1981 and 14.04.1981 being void and unenforceable

in law because of the provisions of the Urban Land (Ceiling and Regulations) Act,

1976 (hereinafter the 'ULCR Act'). There are further averments in the plaint that

the sale deeds which have been registered in favour of defendant Nos. 1 & 2,

acting through the plaintiff's power of attorney holder defendant no.3, are void as

no permission was also obtained from the Income Tax Authority. In view of the

aforesaid facts plaintiff seeks the recovery of possession and cancellation of the

documents being the chain of sale deeds by which originally the defendant Nos. 1

& 2 became the owners, thereafter defendant No. 4 became the owner and

presently the defendant No. 9 is the owner.

5. In this suit written statements have been filed jointly on behalf

defendant Nos. 1 to 3. A separate written statement was filed by the defendant No.

4. Pursuant to amendment being allowed to the plaintiff and amended plaint filed,

additional written statement was filed by the defendant No. 4. Replications have

been filed by the plaintiff to the written statements. Defendant No. 9 has adopted

the written statement which has been filed by the defendant No. 4. In his written

statement the defendant No. 4 has pleaded that the plaintiff transferred complete

rights in the plot by means of Agreement to Sell dated 09.02.1981 and 14.04.1981.

It is pleaded that complete consideration of `95,000/- was received by the

plaintiff. It is further pleaded that on the basis of valid registered Power of

Attorney dated 14.04.1981 executed in favour of defendant No. 3, permissions

were applied for from the Governmental Authorities and thereafter sale deed dated

03.09.1983 (Ex. P-3) was executed in favour of defendant Nos. 1 & 2, and

followed by a sale deed dated 06.08.1984 (Ex. P-4) executed by the defendant No.

1 & 2 in favour of defendant No. 4. The sale deed by which the suit property

presently vests with the defendant No. 9 is dated 14.09.2006 (Ex. DW-1/1). The

defendants have denied that they have forged any permission from the Income Tax

Authority. Application of the provisions of the ULCR Act is denied.

6. On the pleadings of the parties, the following issues were framed in

this case on 12.03.2007:

1. Whether the suit of the plaintiffs is within limitation? OPP

2. Whether the suit has been valued properly for the purpose of jurisdiction and court fee affixed on the plaint in accordance with law? OPP

3. Whether the suit of the plaintiffs is barred by the provisions of Order 23 & Order 2 Rule 1 of the Contract Act? OPP

4. Whether the sale deed dated 3rd September, 1983 executed by Late Shri Prem Raj Chaudhary in favour of the defendant Nos. 1 & 2 is null and void and illegal for the reasons stated in the plaint? If so, to what effect? OPP

5. Whether the sale deed dated 6th August, 1984 executed by the defendant nos. 1 & 23 in favour of the defendant no. 4, is null and void? If so, to what effect? OPP

6. If the foregoing issues are decided in favour of the plaintiffs then whether the plaintiffs are entitled to possession of the suit property from defendant no. 4? OPP

7. Whether the plaintiffs are entitled to the relief of mesne profit?

If so, for what period, at what rate and from whom? OPP

8. Whether the plaintiffs are entitled to a relief of declaration, as prayed for? OPP

7. Issue Nos. 1 to 3 are not pressed on behalf of the defendants and,

therefore, are decided in favour of the plaintiff.

8. Main issues are issue Nos. 4 to 8 as to entitlement of the plaintiff for

cancellation of the chain of sale deeds as also other declarations and thereby

seeking revesting of the suit property in the plaintiff and the possession of the suit

property being granted to the plaintiff.

9. The learned senior counsel appearing for the plaintiff has very

vehemently contended that the suit property in fact is not a constructed property

but only a piece of plot, and, being only a plot land, the same was subject to the

provision of Section 26 and other related provisions of the ULCR Act, and since a

fraud is sought to be played upon the authorities under the ULCR Act by means of

entering into the subject Agreements to Sell dated 09.02.1981 and 14.04.1981

showing the property as built up, the transaction in question is illegal and void. It

is further argued that since the defendants have failed to prove any permission

being granted under Section 26 of the ULCR Act, there could not be a valid

transfer in favour of defendant Nos. 1 & 2, and thereafter to the defendant No. 4,

and finally to the defendant No. 9.

10. In order to appreciate these issues, one admitted fact which has to be

noted is that the size of the suit plot is 569 sq. yds. i.e. less than 500 sq. mtrs. In

terms of provisions of Section 4 of the ULCR Act, a vacant land i.e. land which is

not constructed upon would fall foul of the Act only when it is in excess of the

ceiling limit of 500 sq. mtrs. The question is that even if the land does not fall

beyond the ceiling limit prescribed under the Act, can it be urged that yet the

agreements to sell and the subsequent sale deeds thereupon fall foul of the

provisions of Sections 26 and 28 of the ULCR Act. In my opinion, for the

following reasons, the arguments urged in this regard on behalf of the plaintiff are

wholly misconceived and liable to be rejected:-

(i) The onus of proving that the sale deeds executed in favour of

defendant Nos.1 and 2, and defendant No.4, were registered without permissions

being obtained under ULCR Act was squarely on the plaintiff. Once there are

registered sale deeds then as per illustration (e) of Section 114 of Evidence Act,

1872 there is a presumption that the sale deeds would have been validly registered

inasmuch as under Section 28 of the ULCR Act the registering authority cannot

register the sale deed without the requisite permissions. The plaintiff has failed to

file any document or show from the record of ULCR Act authorities that

permission was not obtained. The mere fact that the ULCR Act records qua the

suit property are destroyed cannot mean that it must be held that no permission was

there. Reliance by the plaintiff on the photocopy of letter dated 18.4.1983 is

misplaced, as this is not an exhibited document and is only marked 'A', and since

it is not proved it cannot be relied upon. Even if this letter can be relied upon it

cannot mean that it is proved that permission by ULCR Act authorities was refused

as this letter is of April, 1983 but the sale deeds in favour of defendant Nos.1 & 2

and defendant No.4 are dated 3.9.1983 and 6.8.1984, i.e. later, and therefore

permissions could have been and would be of later dates than 18.4.1983. This

would have been known from ULCR Act authorities but unfortunately the records

do not exist, however, this will go against the plaintiff and not against the

defendants, more so as the onus was on the plaintiff.

(ii) If there is any entitlement of anybody to dispute the transfer of title in

the suit land, the entitlement and locus would only be of the Government acting

through the authorities under the ULCR Act. If there is no action by the

appropriate authorities under the ULCR Act, in seeking to cancel the chain of title

deeds, and acquire the suit property, it is not open to the plaintiff to urge,

substituting himself as if he were the Governmental Authorities for urging that the

chain of title deeds are void because of alleged violation of the provisions of

ULCR Act. I hold that the plaintiff has no locus standi (more so after having taken

benefit of agreements to sell and receiving entire consideration) to urge that the

Agreements to sell and the Power of Attorneys could not transfer rights in the suit

land in favour of firstly the defendant Nos. 1 and 2 then the defendant No. 4 and

presently to the defendant No. 9. Of course by the time sale deed in 2006 was

executed in favour of defendant No.9, the ULCR Act had been repealed.

(iii) Any controversy remaining as to any alleged invalidity of the sale

deeds as of today is reduced to naught inasmuch admittedly the ULCR Act stands

repealed w.e.f. 22.03.1999. Once the Act is not on the statute book as on the date

of passing of the present judgment, it cannot be said that the provisions of the said

ULCR Act can still be relied upon on behalf of the plaintiff to urge invalidity

of the agreements to sell and the sale deeds executed on the basis of the same.

(iv) An agreement which is against law is not necessarily illegal and void.

In certain case a person can waive the application of the law in his favour. Such

application of law is waived by the plaintiff in this case as he has acted under the

Agreements for his benefit. In such circumstances, the agreement is not a void

agreement. Reference in this behalf is invited to the judgment of the Supreme

Court in the case of Martin & Harris Ltd. Vs. VIth Additional District Judge &

ors AIR 1998 (1) SCC 732. It is the plaintiff who received benefit/consideration

under the subject Agreements to sell dated 09.02.1981 and 14.04.1981, and

therefore plaintiff can be said to have waived the right of any illegality of these

agreements on account of violation of the provisions of the ULCR Act. The

plaintiff cannot be allowed to blow hot and cold at the same time i.e. he took

benefit of the Agreements and now he cannot argue otherwise.

(v) The Constitution Bench of the Supreme Court in the judgment

reported as Maharao Sahib Shri Bhim Singh Ji Vs. Union of India & Ors. 1981

(1) SCC 166 has held that the provision of sub-section 2 of Section 27 of the Act is

invalid so far as it seeks to vacate the citizen's right to dispose of its urban property

if the land falls within the ceiling limits. The provision of Section 27(1) of the

ULCR Act was struck down as it was held that citizen under Article 19(1) (f) has

the fundamental right to hold property. Though this Constitutional Bench

judgment only strikes down the provision of Section 27(1), a reference to the

judgment given by Hon'ble Mr. Justice Sen shows that if a vacant land owned by a

person falls within the ceiling limits of an urban agglomeration, then such person is

outside the purview of Section 3 of the Act and such a person is not governed by

the provisions of the Act. Therefore, since the suit property is below the ceiling

limit of 500 sq. mtrs., the ULCR Act cannot apply to the property in question.

At this stage, I must refer to a related argument urged on behalf of the

plaintiff that even the power of attorneys (though the same mention that they are

irrevocable and the general power of attorney (Ex. D-4/5) is a registered

document), yet, the same cannot be looked into by virtue of the provisions of the

ULCR Act. I have already dealt with the lack of any substance in the argument for

seeking cancellation of the Agreements to Sell and the consequent sale deeds in the

aforesaid paragraphs and said conclusions will also equally apply with respect to

the two power of attorneys i.e. Special Power of Attorney dated 14.04.1981 (Ex.D-

4/4) and the General Power of Attorney (registered) dated 14.04.1981 (Ex. D-4/5).

I may also add that the Hon'ble Supreme Court in the recent judgments of Suraj

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

(para 13) has protected rights which are created under a power of attorney given

for consideration. In the present case, it is undisputed that the power of attorneys

were given for consideration and I note that during the course of the argument it is

not disputed that the entire sale consideration under the Agreements to Sell dated

09.02.1981 and the power of attorney dated 14.04.1981 i.e. a total sum of `

95,000/- stands received by the plaintiff. If we refer to the illustration given in

Section 202 of the Contract Act, 1872, and which deals with irrevocability of a

General Power of Attorney given for consideration, it is seen that a power of

attorney given for consideration in fact is valid even after death of the person

executing the power of attorney.

11. I therefore, hold that the power of attorneys do fall foul of the

provisions of ULCR Act, and in fact, they could not have been sought to be

cancelled as was endeavoured to be done by the plaintiff by sending the legal

notice dated 17.2.1983.

12. Accordingly, I hold that the Agreements to Sell dated 9.2.1981 and

14.4.1981, Special Power of Attorney and General Power of Attorney (registered)

dated 14.4.1981 and the Sale Deeds dated 3.9.1983 (in favour of defendant nos.1

and 2), 6.8.1984 ( in favour of defendant no. 4) and 14.9.2006 (in favour of

defendant no.9) are not illegal or void on account of alleged violations of the

provisions of ULCR Act and which in any case stand repealed as on date and

whose provisions therefore cannot apply to urge any rights on such basis as on

today.

13. So far as the arguments urged on behalf of the plaintiff that the sale

deeds executed in favour of defendant nos. 1 and 2 dated 3.9.1983 and defendant

no.4 dated 6.8.1984 would be void as the necessary permission was not obtained

from the Income Tax Authorities, and such permission was in fact forged and

fabricated, all I have to say is that the sale deed dated 3.9.1983 is a duly registered

sale deed and therefore in terms of illustration (e) of Section 114 of the Evidence

Act, 1872, official acts are deemed to be properly performed i.e the registering

authority would have seen the income tax clearance certificate before registration

of the sale deeds dated 3.9.1983 and 6.08.1984. Once there is a presumption in

favour of the defendant nos. 1 and 2, it was upon the plaintiff to rebut this

presumption by leading evidence, however, no positive evidence has come on

record that no permissions were given by the Income Tax Authority for execution

of the sale deed in favour of defendant nos. 1 and 2 and defendant No.4. Of

course, the plaintiff did make effort to summon the records of the Income Tax

Authority, and such record could not be produced as they are said to have been

lost/destroyed, however, that cannot mean that the plaintiff would have discharged

the onus and it should necessarily be held that no permission was granted by the

Income Tax Authority. I must in this regard refer to the special power of attorney

Ex.D-4/4 dated 14.4.1981 as per which it is specifically and only for the defendant

no.3 to deal with the various Governmental Authorities including the Income Tax

Authority for obtaining the appropriate permissions (In fact, in my opinion, this

special power of attorney was not required inasmuch as the registered General

Power of Attorney Ex.D-4/5 specifically provides in the last clause that the

attorney/ defendant no. 3 is fully competent to do every act and deed which is

necessary for the purpose of transfer of suit plot/property in favour of defendant

nos. 1 and 2). Obviously, therefore, defendant no.3 would have applied for and got

permission from the Income Tax Authority acting as an attorney holder for the

plaintiff. I, therefore, hold that it cannot be argued by the plaintiff that the sale

deeds dated 3.9.1983 and 6.8.1984 must fall as no permissions were obtained from

the Income Tax Authority.

14. Accordingly, issue nos. 4 to 8 are decided against the plaintiff and in

favour of defendants and it is held that the plaintiff is not entitled to possession of

the suit property or for cancellation of the sale deeds or for any mesne profits.

Plaintiff is also not entitled to the declarations as prayed for in view of the

aforesaid discussion.

15. One point which was very strenuously argued on behalf of the

plaintiff was that since the defendant no.3 was proceeded ex parte and she was to

explain the stated alleged suspicious circumstances of obtaining of permissions of

ULCR and Income Tax Authorities, and therefore, adverse inference be drawn

against the defendant no.3. In my opinion, this argument is an argument of

desperation because defendant no.3 is the wife of defendant no.1, and a duly

registered power of attorney holder of the plaintiff, and the two power of attornies

have already been proved and exhibited in this suit as Ex.D-4/4 and Ex.D-4/5, and

therefore, appearance and non-appearance of defendant no.3 is inconsequential,

more so as the written statement has been filed jointly by defendant nos. 1 to 3.

RELIEF:-

16. In view of the above, the suit of the plaintiff is dismissed.

Considering the facts of the present case where the plaintiff in spite of having

received the entire sale consideration of the suit property from the defendant Nos.1

and 2, is harassing the defendants by taking up only legal and technical pleas (in

fact the record of this case shows that the plaintiff had also initiated various other

litigations against the defendants and most of which have been dismissed or

withdrawn) and by initiating present wholly malicious/dishonest litigation, I

exercise my discretion under Rule 14 of the Delhi High Court (Original Side)

Rules, 1967 to exempt the applicability of rules on the aspect of costs in the

present case, and apply the ratio of the recent judgment of the Supreme Court in

the case of Ramrameshwari Devi and Others v. Nirmala Devi and Others, (2011)

8 SCC 249 which holds that it is high time that actual costs be imposed moreso

when dishonesty is apparent. I therefore award actual costs to the defendants while

dismissing the suit. Let the contesting defendants file affidavits within a

period of two weeks from today of the costs which have been incurred by these

defendants towards payment to their lawyers. The certificates of the lawyers of

having actually received the fees must also be attached with the affidavits showing

making of payments of fees to the lawyers for the present suit. Such costs will be

the costs awarded against the plaintiff and in favour of the defendants in the

present suit. Suit is dismissed and disposed of accordingly. Decree sheet be

prepared.

SEPTEMBER 03, 2012                                   VALMIKI J. MEHTA, J
ib