Hukam Singh vs Gulshan Kumar Gambhir
2014 Latest Caselaw 672 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of decision: 4th February, 2014.

+                                 RFA 604/2004
      HUKAM SINGH                                             ..... Appellant
                           Through:      Mr. Ashok Sapra and Mr. Jagdish
                                         Singh, Advocates.

                                      Versus

    GULSHAN KUMAR GAMBHIR                     ..... Respondent
                 Through: Mr. S.K. Sharma, Mr. Rahul Sharma,
                           Mr. Mayank Bansal and Mr. Milan
                          Deep Singh, Advocates.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree (dated 6th January, 2004

of the Court of the Additional District Judge (ADJ), Delhi in Suit

No.74/2001 filed by the respondent) against the appellant of recovery of

possession of the entire second floor of property No.WZ-21A, Village

Shakurpur, Sri Nagar, Delhi and mesne profits/damages for use and

occupation at the rate of Rs.4,000/- per month with effect from the date of

the filing of the suit and till the delivery of possession.

2. The respondent/plaintiff instituted the suit from which this appeal

arises, pleading:-

(a) that the respondent/plaintiff is the owner of the said entire

property No.WZ-21A, Village Shakurpur, Sri Nagar, Delhi

comprising of a three storeyed building constructed over land

ad measuring 125 sq. yds.;

(b) that the said property was earlier owned by the

appellant/defendant who vide Agreement to Sell, General

Power of Attorney, Will and Receipt dated 14th March, 2000

and against receipt of Rs.6,25,000/- as earnest money handed

over symbolic possession of the entire ground floor and two

rooms on the first floor of the property which were already in

possession of the respondent/plaintiff and physical possession

of the remaining property to the respondent/plaintiff;

(c) however on request of the appellant/defendant and his mother

to allow them occupation of one room on the second floor for a

period of about two months with the promise to handover

physical possession of that room on purchase of new property,

the respondent/plaintiff on human grounds allowed the

appellant/defendant and his family members to occupy the said

room and kitchen on the second floor for two months only as

permissive user;

(d) that the appellant/defendant though was supposed to handover

physical possession of the said room to the respondent/plaintiff

by the end of July, 2000 but requested time till 23 rd August,

2000;

(e) that the appellant/defendant however did not vacate the said

room and on the other hand got a suit filed through his mother

against the respondent/plaintiff and got issued a false and

frivolous Notice dated 6th November, 2000;

(f) that the appellant/defendant made a false complaint to the

Police against the respondent/plaintiff on 4th December, 2000

and in pursuance whereto the respondent/plaintiff and his wife

were taken to the Police Station and when came back late at

night found all the original papers of the property in question

missing and of which report was immediately lodged;

(g) that the appellant/defendant got a suit for permanent injunction

filed through his mother and after obtaining status quo order

dated 1st November, 2000 therein broke open the locks of the

remaining rooms on the second floor and thus took possession

of the entire second floor; and,

(h) that the possession of the appellant/defendant of the said second

floor was thus unauthorized.

accordingly suit for recovery of possession of second floor along with

mesne profits at Rs.5,000/- per month was filed.

4. The appellant/defendant contested the suit by filing a written

statement on the ground:-

(i) that the suit was bad for non-joinder of his mother Smt. Som

Wati who was also a co-owner of the property and had already

filed a Civil Suit which was pending consideration;

(ii) that the respondent/plaintiff had got the registered Power of

Attorney executed from the appellant/defendant fraudulently

and dishonestly and coercively and the appellant/defendant

after learning of the said fraud had got the said Power of

Attorney and Will cancelled on 7th April, 2001;

(iii) that the appellant/defendant had entered into an Agreement with

the respondent/plaintiff on 14th March, 2000 for sale of the said

property for a consideration of Rs.20,25,000/- and the

respondent/plaintiff had got a receipt for Rs.6,25,000/- executed

from the appellant/defendant which included the mortgage

amount which terminated on 10th October, 2000 and the amount

whereof was not liable to be adjusted in the sale consideration;

(iv) that the respondent/plaintiff paid a sum of Rs.2,50,000/- only to

the appellant/defendant as earnest money;

(v) that the land underneath the property was allotted in the name

of the father of the appellant/defendant after whose death it was

inherited by the appellant/defendant and his mother and the

appellant/defendant was not the absolute owner thereof;

(vi) that the respondent/plaintiff in the month of October, 1999

approached the appellant/defendant to take mortgage of one hall

on the ground floor for godown purposes for a period of one

year and equitable mortgage was created for a consideration of

Rs.1,25,000/- vide agreement dated 7th October, 1999 and the

property was to be redeemed after 7th October, 2000;

(vii) that thereafter the respondent/plaintiff approached the

appellant/defendant for creating equitable mortgage in respect

of two rooms at the first floor for one year and the mortgaged

amount was agreed at Rs.50,000/- on 15th December, 1999 and

which was also to be redeemed on 15th December, 2000;

(viii) that the respondent/plaintiff exercising undue influence and

fraud on the appellant/defendant made the appellant/defendant

to sell the entire property at a consideration of Rs.20,25,000/- to

the respondent/plaintiff on 14th March, 2000 and accordingly an

Agreement of Sale was made and the respondent/plaintiff was

to pay the amount of Rs.20,25,000/- within a month;

(ix) that as the respondent/plaintiff could not pay the sale

consideration within a month he sought extension;

(x) that the respondent/plaintiff asked the appellant/defendant to

come before the Sub Registrar, Pitampura for registration of the

documents and for taking payment from the respondent/plaintiff

and got executed a receipt for Rs.6,25,000/- and gave only one

bank draft for Rs.2,50,000/-;

(xi) that the respondent/plaintiff also got executed General Power of

Attorney and Will in his favour from the appellant/defendant on

23rd May, 2000;

(xii) that the possession of the respondent/plaintiff of the ground

floor and two rooms on the first floor of the property was also

illegal as the mortgage lapsed and the appellant/defendant is

entitled to take back the possession thereof from the

respondent/plaintiff;

(xiii) that the appellant/defendant is an illiterate person and put his

signatures in Hindi and the respondent/plaintiff taking

advantage thereof got so many documents written in English;

and,

(xiv) that the appellant/defendant never gave possession of any

portion except under the mortgage deeds dated 7th October,

1999 and 15th December, 1999 to the respondent/plaintiff.

A counter claim was also sought to be made for possession of the

ground floor and two rooms on the first floor of the property together with

mesne profits thereof.

5. The respondent/plaintiff filed a replication, pleading:-

A. that Smt. Som Wati mother of the appellant/defendant was a

witness to the documents registered on 23rd May, 2000 and no

title to the property in her favour adversely to the

appellant/defendant could be pleaded; and,

B. not denying that the total sale consideration settled between the

parties was of Rs.20,25,000/ and further pleading that the

General Power of Attorney, Will , Possession Letter etc. were

executed against the receipt of entire sale consideration.

6. The learned ADJ vide order dated 10th April, 2001 directed the

counter claim of the appellant/defendant to be registered separately.

However the same is not found to be so registered.

7. On the pleadings of the parties, the following issues were framed on

30th April, 2001:-

"1. Whether the suit is bad for non joinder of parties as alleged in preliminary objection no.2 of the written statement? OPD

2. Whether the plaintiff got the registered general power of attorney executed from the defendant fraudulently, dishonestly and under pressure, as alleged in para 9 of the preliminary objections in the written statement? If so, to what effect? OPD

3. Whether the plaintiff is entitled to the decree of possession of the suit property? OPP

4. Whether the plaintiff is entitled to any use and occupation charges/mesne profits @ Rs.5,000/- per month as prayed for? OPD

5. Relief."

8. As would be obvious, no issues were framed in the counter claim,

perhaps because no Court Fees was paid thereon.

9. Vide order dated 3rd July, 2002 the application of the

respondent/plaintiff under Section 65 of the Indian Evidence Act, 1872 was

allowed and the respondent/plaintiff allowed to lead secondary evidence

with respect to the Agreement to Sell, Power of Attorney etc.

10. On the basis of the evidence led, the learned ADJ, in the impugned

judgment, has found/observed/held:-

(a) that from the depositions of the appellant/defendant it stood

established that he had executed the documents fully

understanding their nature and that his mother and wife were

also present at that time and aware that the appellant/defendant

was selling/disposing of the property in favour of the

respondent/plaintiff;

(b) the appellant/defendant utilized the sale consideration for

acquiring new assets;

(c) there were material contradictions between the examination-in-

chief and cross examination of the appellant/defendant,

reducing his trustworthiness;

(d) the appellant/defendant was aware that Power of Attorney for

sale of property is a recognized mode for effecting transfer of

properties in Delhi;

(e) that the mother of the appellant/defendant was aware that she

was not having any right, title or interest in the property being

transferred to the respondent/plaintiff and/or had approved and

joined in the same;

(f) the appellant/defendant had failed to prove any fraud having

been played by the respondent/plaintiff;

(g) that the appellant/defendant had subsequently concocted a story

to usurp the possession of the second floor of the property to

which he had no right after transferring the same and delivering

possession thereof to the respondent/plaintiff;

(h) the only defence of the appellant/defendant was that he was not

paid the full consideration and which defence also he had tried

to create much after the trial of the suit had started;

(i) the appellant/defendant had failed to prove any fraud having

been practiced by the respondent/plaintiff or the

respondent/plaintiff having pressured the appellant/defendant

into executing any document;

(j) the price of the property sold and purchased in the market

showed much depressed consideration in comparison to actual

amount paid therefor;

(k) the suit was not bad for non-joinder of Smt. Som Wati mother

of the appellant/defendant and who was proved to be aware of

the sale of the property by the appellant/defendant to the

respondent/plaintiff; moreover the Civil Suit which the Smt.

Som Wati had filed was dismissed in default;

(l) that the respondent/plaintiff had proved Sale Agreement,

General Power of Attorney, Will, Receipt of Consideration and

Possession Letter executed by the appellant/defendant with

respect to the property and which constituted a good title to the

property and amounted to transfer of ownership of property;

(m) such documents could not have been unilaterally cancelled by

the appellant/defendant and which he was not entitled to, the

same being for consideration;

(n) that even if the appellant/defendant is held to have not handed

over actual possession of the entire second floor of the property

after sale of the property, his capacity stood reduced to mere

licensee after executing the documents constituting the sale of

the property;

(o) the appellant/defendant thus had no right to retain possession of

the second floor of the property after the two months from the

date of sale and the respondent/plaintiff was entitled to maintain

a suit for possession with respect thereto; and,

(p) mesne profits of Rs.4,000/- per month were held to meet the

ends of justice.

11. Notice of the appeal was issued and vide order dated 24 th November,

2004 dispossession of the appellant/defendant from the property stayed

subject to the appellant/defendant depositing rupees one lac in this Court and

further subject to the appellant/defendant continuing to pay mesne profits at

Rs.2,000/- per month to the respondent/plaintiff. Vide subsequent order

dated 25th April, 2005 such mesne profits were ordered to be deposited in

this Court and permitted to be withdrawn by the respondent/plaintiff. The

parties were referred to mediation cell of this Court, which was successful. A

Settlement Agreement dated 4th October, 2006 was signed between the

parties whereunder the appellant/defendant agreed to purchase the rights of

the respondent/plaintiff in the property for a total consideration of Rs.23 lacs

to be paid by the appellant/defendant within three months therefrom and

against receipt of which the respondent/plaintiff agreed to handover

possession to the appellant/defendant. The appellant/defendant however did

not pay the amount within three months and sought extension of two months

which was allowed vide order dated 6th March, 2007. The

appellant/defendant still did not make the payment and sought more time

which was vide order dated 11th May, 2007 refused and the appeal ordered to

be heard and the interim relief earlier granted was vacated and the

application for interim relief dismissed. I am informed that the

respondent/plaintiff has executed the decree for possession and taken

possession of the second floor from the appellant/defendant. The

appellant/defendant on 28th April, 2008 stated that he was then ready to

deposit the amount of Rs.23 lacs in terms of the Settlement. The

respondent/plaintiff took a stand that he was no longer bound by the

Settlement. Vide order of the said date the appellant/defendant was

permitted to make a deposit of Rs.23 lacs in this Court without prejudice to

his rights and contentions. The said amount is reported to have been

deposited.

12. The appeal was on 15th July, 2008 admitted for hearing. The

appellant/defendant died during the pendency of the appeal and vide order

dated 24th April, 2009 his legal heirs were substituted.

13. The counsels have been heard.

14. The question for adjudication in this appeal is, whether the factual

findings returned by the learned ADJ are on a correct appreciation of the

evidence led in the suit.

15. During the hearing of the appeal on 7th August, 2013 it was enquired

from the counsel for the respondent/plaintiff whether the respondent/plaintiff

had sought specific performance of the Agreement to Sell. The counsel for

the respondent/plaintiff stated that since the entire agreement stood

performed by payment of entire consideration and delivery of possession,

need was not felt for suing for specific performance. It was next enquired

from the counsel for the respondent/plaintiff as to on what basis possession

of the second floor was claimed, whether on the basis of previous possession

and not on title or whether on the basis of title. It was further enquired

whether a mere agreement purchaser in possession in part performance can

be said to be having title to the property so as to sue for possession of one

room which the respondent/plaintiff claims to have allowed the

appellant/defendant to temporarily use or of the remaining second floor in

which the appellant/defendant was alleged to have trespassed. Though the

hearing was adjourned to enable the counsel for the respondent/plaintiff to

reply but no answer has come forward.

16. Arguments of the counsel for the appellant/defendant are the same i.e.

of the appellant/defendant being illiterate and the respondent/plaintiff having

defrauded him. Reliance is placed on:

(i) Pratap Singh Vs. State (2010) VII AD (Delhi) 490 to contend

that the onus to prove that the documents were prepared under the

instructions of the appellant/defendant and were understood by the

appellant/defendant before signing the same, was on the

respondent/plaintiff; (though the said judgment is in relation to a Will)

(ii) Ramjan Khan Vs. Baba Raghunath Dass AIR 1992 Madhya

Pradesh 22 laying down that the burden is on the person relying upon

the document to prove that the document was read and explained to

the executant and mere proof that person's signature appear on the

document, cannot by itself amount to proof of execution of the

document particularly when the executant is an illiterate person and

has affixed his thumb impression to the document;

(iii) Somnath Misra Vs. Narahari Das AIR 1977 NOC 304 (Orissa)

again laying down that when the executant of a document is an

illiterate person, mere proof of signature is not sufficient and the onus

lies on the person who wants to rely on such document;

(iv) Kali Dei Vs. Brundaban Malik AIR 1972 Orissa 132 laying

down that a person relying upon a document and seeking to bind a

Paradanashin or an illiterate lady with the contents thereof, must not

only formally prove the document but in addition prove that the

contents were read over and explained to the executant;

(v) on Sections 17 & 49 of the Registration Act, 1908 and Section

54 of the Transfer of Property Act, 1882;

(vi) Rules 24 & 25 of the Delhi High Court Mediation &

Conciliation Act, 2004.

17. The counsel for the respondent/plaintiff has handed over photocopies

of the following judgments, though not making any arguments on the basis

thereof:

(a) R. Kanthimathi Vs. Beatrice Xaviers (2000) 9 SCC 339;

(b) Shikha Properties (P) Limited Vs. S. Bhagwant Singh 74

(1998) DLT 113;

(c) Kuldip Singh Suri Vs. Surinder Singh Kalra 76 (1998) DLT

232;

(d) Asha M. Jain Vs. The Canara Bank 94 (2001) DLT 841;

(e) Hardip Kaur Vs. Kailash 193 (2012) DLT 168; and,

(f) Sant Lal Jain Vs. Avtar Singh (1985) 2 SCC 332.

18. Though the counsel for the appellant/defendant has not read any

portion of the oral evidence recorded to show that the findings returned by

the learned ADJ of the appellant/defendant having executed the documents

fully understanding their nature and against the receipt of entire sale

consideration and which had been used by the appellant/defendant for

acquiring new assets, are contrary thereto but I have, to satisfy my judicial

conscience and particularly in the face of the argument of the

appellant/defendant being an illiterate person, still minutely gone through the

evidence recorded and I am unable to find any error having been committed

by the learned ADJ in appreciation thereof. The appellant/defendant, though

may have been illiterate, does not on the reading of the said evidence come

across as lacking in understanding or common sense. The argument raised

by the counsel for the appellant/defendant of illiteracy is thus found to be

hollow and does not come to the rescue of the appellant/defendant. Only the

legal question raised in para 15 above, thus remains to be adjudicated.

19. The law permits a claim for possession for immovable property being

made either on the basis of prior possession or on the basis of title. In the

facts of the present case, the respondent/plaintiff has proved having entered

into an agreement for purchase of the said property from the

appellant/defendant and has further proved having been put into possession

of the said property by the appellant/defendant in pursuance of such

agreement. The respondent/plaintiff has further proved having thereafter

granted license to the appellant/defendant to use a part of the second floor of

the property and having been dispossessed by the appellant/defendant from

the remaining part of the second floor. Though undoubtedly the

respondent/plaintiff did not claim specific performance of the said

agreement and resultantly does not till date have title to the property but on

the other hand the appellant/defendant also has not taken any steps

whatsoever for recovery of possession from the respondent/plaintiff of the

remaining property of which the respondent/plaintiff is admittedly in

possession. Though the Supreme Court in Suraj Lamp and Industries

Private Limited Vs. State of Haryana (2012) 1 SCC 656 has set aside the

judgment of the Division Bench of this Court in Asha M. Jain supra but it

cannot be lost sight of that the Division Bench of this Court in Asha M. Jain

supra had held that judicial notice can be taken of the transactions of

immovable properties in the city of Delhi through the medium of agreement

to sell, power of attorney, Will etc. clubbed with delivery of possession

under Section 53A of the Transfer of Property Act. All that the Supreme

Court has held is that the same does not amount to vesting of title in the

property. Undoubtedly so. However, the judgment of the Supreme Court in

Suraj Lamp and Industries Private Limited supra does not interfere with

the rights of possession in the property under Section 53A of the Transfer of

Property Act. I have wondered that when the law permits a claim for

possession of immovable property being made on the basis of prior

possession, what is the impediment to such a claim for possession being

made against the title holder of the property who forcibly dispossesses the

person to whom he had agreed to sell the property and to whom he has

delivered possession thereof in part performance of the Agreement to Sell. I

am unable to find any such impediment.

20. In view of the aforesaid, there is also no legal error found in the

judgment and decree of the learned ADJ.

21. Though during the pendency of this appeal a settlement agreement

was signed between the parties and whereunder the respondent/plaintiff

agreed to give up his rights in the property against receipt of Rs.23 lacs from

the appellant/defendant but the fact remains that the appellant/defendant did

not pay the said amount within the time agreed. The reliance now placed by

the counsel for the appellant/defendant on Rules 24 & 25 of the Mediation &

Conciliation Rules, is misconceived. It is evident from the orders in the

appeal after the date of the settlement agreement that the said settlement

agreement was given a go bye and the appeal posted for hearing on the

original cause of action.

22. There is thus no merit in the appeal, which is dismissed. The counsel

for the respondent/plaintiff having not answered the queries raised during the

hearing, no costs. The amount deposited by the appellant/defendant in this

Court towards settlement agreement together with interest, if any, accrued

thereon be refunded to the appellant/defendant.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

FEBRUARY 04, 2014.

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