Delhi High Court
Shakeela @ Baby & Anr. vs Mehzabeen @ Zabeen on 11 December, 2013
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 11th December, 2013
+ RFA 312/2013 &CM No.10328/2013 (for stay).
SHAKEELA @ BABY & ANR. ..... Appellants
Through: Ms. Cheena Sharma & Mr. Yogesh
Choudhary, Advs.
versus
MEHZABEEN @ ZABEEN ..... Respondent
Through: Mr. Ashwin Vaish & Mr. Vinod
Kumar Pandey, Advs.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1. The appeal impugns the judgment and decree (dated 13th February,
2013 of the Addl. District Judge (North), Tis Hazari Courts, Delhi in Civil
Suit No.159/2011 (Unique ID No.02401C0461372011) filed by the
respondent) of declaration that the bayana receipt Ex.DW2/PX dated 23rd
December, 2010 is null and void and for recovery of possession from the
two appellants of the third floor of property bearing No.4035, Ward No.XIV,
Basti Mansa Ram, Gali Barna, Sadar Bazar, Delhi and of permanent
injunction restraining the appellants from creating third party interest in the
property.
2. Notice of the appeal was issued, Trial Court record requisitioned and
execution of the decree in so far as for the relief of possession, was stayed.
3. Considering the nature of the controversy, it is not deemed expedient
to admit this appeal, particularly when though a decree for possession has
been passed in favour of the respondent/plaintiff but no mesne profits have
been awarded to the respondent/plaintiff. In the circumstances, with consent,
the counsels have been finally heard on the appeal.
4. The respondent/plaintiff had sued for recovery of possession pleading
the appellants/defendants to be licensees under a document dated 15 th June,
2010 titled Amanatnama and having not removed themselves from the
property inspite of expiry of the term thereof.
5. The appellants/defendants contested the suit, denying the
Amanatnama and by pleading that the respondent/plaintiff had vide bayana
receipt dated 23rd December, 2010 aforesaid agreed to sell the said premises
to the appellants/defendants and had put the appellants/defendants into
possession of the property in pursuance to the said Agreement to Sell and
against receipt of part sale consideration.
6. The occasion for the respondent/plaintiff to seek declaration qua the
said bayana receipt arose for the reason of the appellants/defendants, prior to
the institution of the suit from which this appeal arises having filed a suit for
injunction against their dispossession on the basis thereof.
7. The learned Addl. District Judge after framing issues and recording
evidence has found the bayana receipt to be forged and decreed the suit for
recovery of possession in favour of the respondent/plaintiff inter alia
observing that though the appellants/defendants in the suit aforesaid filed by
them for injunction against their dispossession also claimed the relief of
mandatory injunction directing the respondent/plaintiff to in accordance with
the said bayana receipt execute the Sale Deed of the said premises in favour
of the appellants/defendants but the said suit had also been dismissed for
non-prosecution and the appellants/defendants had not sought any specific
relief of the said bayana receipt evidencing an Agreement of Sale by the
respondent/plaintiff of the premises to the appellants/defendants.
8. The counsel for the appellants/defendants admits that no specific
performance of the alleged Agreement to Sell evidenced by the said bayana
receipt has been filed.
9. In view thereof, no fault can be found with the reasoning of the
learned Addl. District Judge qua the relief of recovery of possession. For a
agreement purchaser of immovable property to avail of the benefit of
Section 53(A) of the Transfer of Property Act, 1882 after the amendment
w.e.f. 24th September, 2001 of the Registration Act,1908 and the Transfer of
Property Act, the Agreement to Sell has to be registered. Admittedly the
Agreement to Sell in pursuance to which the appellants/defendants claim to
be in possession of the property has not registered. The
appellants/defendants are thus not entitled to protect their possession in
pursuance to an Agreement to Sell in their favour and are liable to deliver
back the possession of the respondent/plaintiff whose title is otherwise
admitted by pleading an Agreement to Sell.
10. As far as the relief granted by the learned Addl. District Judge of
declaring the bayana receipt to be null and void is concerned, though the
counsel for the appellants/defendants has argued that the respondent/plaintiff
did not examine any handwriting expert to prove that the signatures on the
bayana receipt are not her's and the finding in this regard of the learned
Addl. District Judge is thus erroneous and though the counsel for the
respondent/plaintiff has responded by contending that an FIR has been
lodged by the respondent/plaintiff against the appellants/defendants of the
offence of having forged the said bayana receipt and in which report from
the FSL has been received that the signatures on the bayana receipt do not
match with the admitted signatures of the respondent/plaintiff and a notice
has been issued to the SHO as to why the charge sheet has not be filed, but
in my opinion the said aspect has now lost its relevance. Even if it were to be
believed that there was/is such a bayana receipt, the same only gave a right
to the appellants/defendants to seek specific performance and which right
though claimed to have been exercised has been given up. The said bayana
receipt thus in any case now is infructuous. In that view of the matter, need
is not felt to interfere with the finding in this regard also of the learned Addl.
District Judge.
11. There is thus no merit in the appeal which is dismissed with costs
assessed at Rs.11,000/-.
12. Decree sheet be drawn up.
13. The Trial Court record be sent back.
RAJIV SAHAI ENDLAW, J
DECEMBER 11, 2013/pp...
