Jai Gopal Sethi vs Sanjay Sabharwal & Ors.
2014 Latest Caselaw 133 Del

         *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 8th January, 2014

+                              RFA No.136/2005

      JAI GOPAL SETHI                                    ..... Appellant
                   Through:          Mr. S.K. Chaudhary, Adv.

                                  Versus

    SANJAY SABHARWAL & ORS.                     ..... Respondents

Through: Mr. Rakesh K. Sharma & Ms. Arjita Bhalla, Advs. for R-3&4.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The appeal impugns the judgment and decree dated 26.10.2004 of

the Court of Additional District Judge (ADJ), Delhi of dismissal of suit

No.322/2001 filed by the appellant for recovery of possession of flat

No.166, Block No.C-2C, Pocket-II, Pankha Road Residential Scheme

(now known as Janakpuri, New Delhi) and for injunction and recovery of

mesne profits.

2. Notice of the appeal was issued and vide ex parte ad-interim order

dated 09.03.2005, the parties were directed to maintain status quo with

regard to the nature, title and possession of the subject flat. On

01.09.2006 the appeal was admitted for hearing and during the pendency

thereof, the respondent was restrained from alienating, encumbering or

parting with possession of the subject flat. The counsel for the appellant

and the counsel for the respondents No.3&4 have been heard. None

appears for the respondents No.1&2 who are proceeded against ex parte.

3. The appellant, on 03.12.1993 instituted the suit from which this

appeal arises, pleading:

(i) that he was allotted the flat aforesaid comprising of first

floor and a barsati floor and open WC on the terrace, by the

DDA;

(ii) that the appellant / plaintiff had in October, 1972 let out the

first floor of the flat to one Sh. Parmanand Anand who

expired in the year 1986 and thereafter his wife Smt.

Padmawati Anand became the tenant;

(iii) that the appellant / plaintiff was getting rent of Rs.150/- per

month from Smt. Smt. Padmawati Anand;

(iv) that the barsati floor portion of the flat was in possession of

the appellant / plaintiff;

(v) that the appellant / plaintiff in the year 1981 was posted at

Jhansi as Assistant Engineer in U.P. Irrigation Department

and could not come to Delhi often and pursue the tenant

Smt. Padmawati Anand for vacating the premises;

(vi) that the respondents / defendants No.1&2 Sh. Sanjay

Sabharwal & Sh. Deepak Sabharwal are "brothers and

cousins" of the plaintiff / appellant‟s wife and were engaged

in the business of property dealership in the name and style

of M/s Vishal Property Dealers;

(vii) that in October, 1992 the respondents / defendants No.1&2

represented to the appellant / plaintiff that the appellant /

plaintiff should allow them to approach the DDA for

effecting Conveyance Deed of the said flat in the name of

the appellant / plaintiff and should authorize them to request

the tenant Smt. Padmawati Anand to vacate the premises;

they also requested the appellant / plaintiff to handover the

keys of the barsati room to them so that they start living

therein to facilitate vacation of the first floor by the tenant

Smt. Padmawati Anand;

(viii) that on the assurance of the respondents / defendants

No.1&2 that they will hand back the keys to the appellant /

plaintiff after vacation of the first floor by Smt. Padmawati

Anand, the appellant / plaintiff handed over keys of the

barsati floor to the respondent / defendant No.1;

(ix) that the respondent / defendant No.1 also represented to the

appellant / plaintiff that for dealing with DDA they would

need all the papers of the flat in original and the appellant /

plaintiff in good faith handed over original papers for

effecting Conveyance Deed in favour of the appellant /

plaintiff and also signed on blank papers to enable the

respondents / defendants No.1&2 to make applications to the

DDA, MCD and other relevant authorities in this regard and

also deal with the tenant Smt. Padmawati Anand on behalf of

the appellant / plaintiff;

(x) that in December, 1992 the respondent / defendant No.1

visited Jhansi and got written a letter from the appellant /

plaintiff to the tenant Smt. Padmawati Anand intimating her

of sale of the flat to respondent / defendant No.1;

(xi) that the appellant / plaintiff also paid Rs.85,000/- and

Rs.50,000/- to the respondent / defendant No.2 for payment

to DDA for effecting Conveyance Deed of the flat in favour

of the appellant / plaintiff and for construction of another

room on the barsati floor;

(xii) that the appellant / plaintiff came to Delhi on 25.11.1993 and

found the respondent / defendant No.3 Sh. Subhash Chander

in possession of the flat and Sh. Subhash Chander also

claimed to have purchased the said flat through the

respondents / defendants No.1&2; and,

(xiii) that enquiries revealed that the respondents / defendants

No.1&2 had taken possession of the first floor from the

tenant Smt. Padmawati Anand and on the basis of the blank

papers got executed from the appellant / plaintiff, sold the

flat to the respondent / defendant No.3.

Accordingly, the suit for the reliefs of i) recovery of possession; ii)

rescission of the documents fabricated on the blank papers got executed

from the appellant / plaintiff; iii) declaration that the said flat had never

been sold by the appellant / plaintiff; iv) mandatory injunction directing

the respondents / defendants to return the original documents of the flat as

well as all the documents fabricated on the said blank papers got signed

from the appellant / plaintiff; v) permanent injunction restraining the

respondents / defendants from dealing with the flat; and, vi) for recovery

of mesne profits at the rate of Rs.1500/- per month was filed.

4. The respondents / defendants No.1&2 contested the suit by filing a

written statement, pleading, a) that the entire flat was with the tenant and

the appellant / plaintiff had by means of Agreement to Sell, General

Power of Attorney (GPA), Special Power of Attorney (SPA), receipt for

cash payment, transferred the same to the respondents / defendants

No.1&2; b) that the respondents / defendants no.1&2 got the same

effected from the tenant and thereafter transferred the same to the

respondent / defendant No.3; that there had been continuous litigation

and disputes between the family of the wife of the appellant / plaintiff and

the respondents / defendants No.1&2 and there was thus no question of

the appellant / plaintiff signing the documents in favour of respondents /

defendants no.1&2 in blank or in good faith.

5. The respondent / defendant No.3 also contested the suit by filing a

written statement, pleading on the same lines as the respondents /

defendants No.1&2 and clarifying that the purchase was by the wife of

respondent / defendant No.3 and yet further pleading that the respondents

/ defendants No.1&2 were in collusion with the appellant / plaintiff.

6. Thereafter, the respondent / defendant No.4 viz. Smt. Suman

Maniktala was impleaded as a respondent / defendant and she also filed a

written statement on the same lines as her husband respondent / defendant

no.3.

7. Needless to state that replications denying the contents of the

written statements and reiterating the case in the plaint were filed.

8. On the pleadings aforesaid of the parties, the following issues were

framed in the suit on 22.04.2002:

"1. Whether the suit of the plaintiff is barred under the provisions of Specific Relief Act? OPD

2. Whether the suit of the plaintiff is bad for mis-joinder and non-joinder of necessary parties? OPD

3. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD

4. Whether a valid transfer was made of flat number 166, C-

2C, Pocket II, Pankha Road, Janak Puri, New Delhi? OPP

5. Whether the plaintiff is entitled to rescission and cancellation of documents and its consequence? OPP

6. Whether the plaintiff is entitled to a decree of declaration? OPP

7. Whether the plaintiff is entitled to a decree of permanent and mandatory injunction as prayed for? OPP

8. Whether the plaintiff is entitled to mesne profits? If so, at what rate and to what amount? OPP

9. Relief."

9. The learned ADJ, on the basis of the evidence led, has in the

impugned judgment, found / observed / held:

(a) that no arguments were addressed by the respondents /

defendants on Issues No.1 and 2; the said Issues were

accordingly decided in favour of the appellant / plaintiff and

against the respondents / defendants;

(b) the suit was properly valued for the purposes of court fees

and jurisdiction; accordingly, Issue No.3 was decided in

favour of the appellant / plaintiff and against the respondents

/ defendants;

(c) that the registered GPA and the SPA purportedly executed

by the appellant / plaintiff in favour of the respondent /

defendant No.1 were affixed with the photograph of the

appellant / plaintiff though the appellant / plaintiff disputed

appearing before the Sub-Registrar for registration thereof;

the validity of the registered document has to be taken as

authentic and mere denial was not enough;

(d) that admittedly the appellant / plaintiff had not only handed

over all original documents of the flat to the respondents /

defendants No.1&2 but had also vide his letter dated

30.12.1992 to the tenant Smt. Padmawati Anand confirmed

having sold the said flat to the respondent / defendant No.1

and the said letter fortified the documents admittedly signed

by the appellant / plaintiff;

(e) that the respondent / defendant No.1 being fully vested with

the authority under the GPA and SPA aforesaid to sell the

said flat, sold the same to the respondent / defendant no.4;

(f) that the respondent / defendant No.4 purchased the said flat

for valuable consideration, diligently and prudently;

(g) that the appellant / plaintiff had allowed the respondent /

defendant No.1 to hold himself out as the ostensible owner

having all original documents in his possession;

(h) that the contention of the appellant / plaintiff that title in the

suit property could be conveyed only by execution of a

registered sale deed is erroneous as the concept of GPA sales

is well recognized mode of effecting transfer of interest in

Delhi;

(i) that the respondent / defendant No.4 thus acquired a valid

right and interest in the property; Issue No.4 was thus

decided in favour of the respondents / defendants and against

the appellant / plaintiff;

(j) that the appellant / plaintiff till then had not initiated any

criminal action against the respondents / defendants No.1&2;

(k) that the appellant / plaintiff had also not sought recovery of

the amounts received by the respondents / defendants

No.1&2 from the respondents / defendants No.3&4; and,

(l) under such circumstances, it is difficult to believe that the

appellant / plaintiff who is an educated person had been

duped time and again or led into parting with the original

papers of the suit property; accordingly, Issues No.5 to 8

were decided in favour of the respondents / defendants and

against the appellant / plaintiff.

and the suit was dismissed.

10. The counsel for the appellant / plaintiff has argued:

(I) that the Agreement to Sell dated 03.10.1992 purportedly

executed by the appellant / plaintiff in favour of the

respondent / defendant No.1, while describing the

residence of the appellant / plaintiff at Jhansi, records

Jhansi to be situated in the State of Madhya Pradesh

when in fact it is situated in the State of Uttar Pradesh

and which is indicative of the same having not been typed

at the time of signing thereof by the appellant / plaintiff

as the appellant / plaintiff would know whether Jhansi is

situated in the State of Madhya Pradesh or Uttar Pradesh;

(II) that though the said Agreement to Sell dated 03.10.1992

shows consideration of Rs.95,000/- to have been paid by

the respondent / defendant No.1 to the appellant / plaintiff

but leaves blank the manner in which the said amount had

been paid;

(III) similarly though the said Agreement to Sell dated

03.10.1992 also states that the said sum of Rs.95,000/-

had been paid by means of a separate receipt but no

separate receipt had been produced;

(IV) that the GPA purportedly executed by the appellant /

plaintiff in favour of the respondent / defendant No.1

including with a power to sell the said flat, is dated

13.06.1991; that since the Agreement to Sell purportedly

executed by the appellant / plaintiff and relied upon by

the respondents / defendants is only of 03.10.1992, there

was no occasion for the appellant / plaintiff to on

13.06.1991 i.e. one year prior thereto execute a power of

attorney as part of the transaction of sale; the same is

indicative of the respondents No.1&2 having fabricated

documents on blank papers got signed from the appellant

/ plaintiff and of the documents being not part of a sale

transaction; attention in this regard is also invited to the

signatures of the appellant / plaintiff on the reverse of the

two pages of the power of attorney dated 13.06.1991 even

though the same is not registered;

(V) the documents purportedly of sale are thus haphazard and

not as are usually prepared of the transaction of sale;

(VI) that the registered Power of Attorney dated 26.02.1993

purportedly executed by the appellant / plaintiff in favour

of the respondent / defendant No.1 does not at the reverse

of the first page bear the thumb impression of the

appellant / plaintiff and which is indicative of the

appellant / plaintiff being not present at the time of

registration thereof;

(VII) Sh. Niranjan Lal shown as the Arbitrator in the agreement

dated 11.01.1993 of Appointment of Arbitrator

purportedly executed by the appellant / plaintiff and the

respondent / defendant No.1, is a confidant of the

respondents / defendants No.3&4 and not a confidant of

the respondents / defendants No.1&2; the same is

indicative of the documents purportedly executed by the

appellant / plaintiff in favour of the respondents /

defendants No.1&2 having been fabricated at the same

time as the sale by the respondents / defendants No.1&2

in favour of the respondents / defendants No.3&4;

otherwise there was no occasion for the confidant of the

respondents / defendants No.3&4 being appointed as an

Arbitrator in the agreement for Appointment of an

Arbitrator between the appellant / plaintiff on the one

hand and the respondents / defendants No.1&2 on the

other hand;

(VIII) that the letter dated 30.12.1992 written by the appellant /

plaintiff in his own handwriting, to the tenant Smt.

Padmawati Anand is in response to the letter dated

14.10.1992 of the tenant Smt. Padmawati Anand brought

by the respondents / defendants No.1&2 to the appellant /

plaintiff, enquiring from the appellant / plaintiff whether

he had sold the flat in her tenancy; that the appellant /

plaintiff had written the letter dated 30.12.1992 as

dictated by the respondents / defendants No.1&2;

(IX) that the signatures of the tenant Smt. Padmawati Anand

on the document filed by the respondents / defendants of

surrender of tenancy rights by her are different from her

signatures on the letter dated 14.10.1992 supra and the

respondents / defendants No.1&2 appear to have

fabricated the signatures of the tenant Smt. Padmawati

Anand on the letter dated 14.10.1992 to make the

appellant / plaintiff write the reply dated 30.12.1992

confirming sale of the flat in favour of the respondent /

defendant No.1;

(X) that the receipt purportedly issued by the respondent /

defendant No.1 to the tenant Smt. Padmawati Anand of

„No Dues‟ is dated 01.02.1993 whereas the possession

receipt executed by Smt. Padmawati Anand of surrender

of tenancy rights in the flat is dated 07.02.1993; the „No

Due Certificate‟ could not have been issued before

delivery of possession by the tenant and the same again

shows unnatural haphazard documentation;

(XI) that for the Power of Attorney to become irrevocable

under Section 202 of the Indian Contract Act, 1872, the

same has to be executed on the same date as the

Agreement to Sell and it will not be so if the documents

are of separate dates;

(XII) that the appellant / plaintiff had been living outside Delhi,

could not be in Delhi on all the dates which the various

documents purported to be executed by him bear;

(XIII) that the respondent / defendant No.3 in his affidavit dated

29.10.2002 by way of examination-in-chief in para No.5

admitted that the tenant Smt. Padmawati Anand was only

in occupation of the first floor and the second / barsati

floor was with the appellant / plaintiff and this stand is

contrary to the written statement of the defendants

No.1&2;

(XIV) that consideration for surrender of tenancy rights is

claimed to have been paid by the respondents /

defendants No.3&4 directly to the tenant Smt. Padmawati

Anand; if that was so, the date of surrender of tenancy

rights by the tenant Smt. Padmawati Anand and the date

of Agreement to Sell by the respondents / defendants

No.1&2 in favour of the respondents / defendants

No.3&4 would have been the same; however while the

surrender of tenancy rights by the tenant is on

07.02.1993, the Agreement to Sell in favour of the

respondent / defendant No.4 is of 10.03.1993;

(XV) that the respondents / defendants No.3&4 cannot thus

claim to be bona fide purchasers as they could not have

paid consideration to the tenant for surrender of tenancy

rights before Agreement to Sell in their favour;

11. Per contra, the counsel for the respondents / defendants no.3 & 4

has argued:-

A. that the appellant / plaintiff at the contemporaneous time

was stuck for over 20 years with a tenant paying a low

rent of Rs.150/- per month and was thus desirous of

selling the property and has turned dishonest after the

tenant surrendered the tenancy rights on receiving

consideration;

B. that the letter dated 14.10.1992 by the tenant to the

appellant / plaintiff as well as the reply dated 30.12.1992

of the appellant / plaintiff thereto show the same to be by

registered post / UPC / registered AD and thus falsify the

version of the appellant /plaintiff of the said letter having

been personally collected by the respondent / defendant

No.1 from the appellant / plaintiff;

C. that if the appellant / plaintiff had merely authorized the

respondents / defendants No.1&2 to have the Conveyance

Deed executed and the flat vacated from the tenant, there

would have been no occasion for the appellant / plaintiff

to, in the letter dated 30.12.1992 to the tenant state that

the property had been sold to the respondent / defendant

No.1;

D. that the respondents / defendants No.1&2 are the

brothers-in-law of the appellant / plaintiff and the

appellant / plaintiff has not lodged any police complaint

against them;

E. that the appellant / plaintiff did not produce his service

record to show that on the dates which the documents

executed by him at Delhi bear, he was at Jhansi; and,

F. that the appellant / plaintiff in fact on the said dates had

sold other properties also.

12. The counsel for the appellant / plaintiff in rejoinder has reiterated

that neither payment of any sale consideration by the respondents /

defendants No.1&2 to the appellant / plaintiff has been pleaded nor has

been proved.

13. I had during the hearing enquired from the counsel for the

appellant / plaintiff whether the appellant / plaintiff, in his examination-

in-chief deposed of the various discrepancies as have been highlighted

above or during the cross examinations of the respondents / defendants

gave an opportunity to the respondents / defendants to reply thereto.

14. The counsel for the appellant / plaintiff fairly admitted that neither

had been done.

15. I am of the view that a party to a suit or an appeal thereagainst is

not entitled to rely on any contradictions as aforesaid particularly relating

to pleadings and documents or inter se documents, without giving an

opportunity to the other party to explain the same.

16. A so called „apparent inconsistency‟ can have an explanation in

fact. Without an opportunity being given to explain the said

inconsistency, no decision on the basis thereof can be taken. It is only

when an opportunity has been given after drawing the attention of the

parties thereto, that a finding can be returned of the same having not been

specifically explained and thus being fatal to the case set up by that party.

Reference if any in this regard can be made to Rajinder Pershad Vs.

Darshana Devi (2001) 7 SCC 69 and Chanchal Dhingra Vs. Raj Gopal

Mehra MANU/DE/3647/2013.

17. In my opinion, the most significant aspect of the present matter is

the relationship between the appellant / plaintiff and the respondents /

defendants No.1&2. According to the appellant / plaintiff, the

relationship was close (howsoever distant cousins the respondents /

defendants No.1&2 may be of the wife of the appellant / plaintiff) to the

extent of the appellant / plaintiff in spite of being a highly educated

person occupying a responsible post in the Government blindly trusting

the respondents / defendants No.1&2 not only with the title documents

and all other documents of his property but also with his signatures on

blank papers; so much so that the counsel for the appellant / plaintiff

when asked, could not state whether the appellant / plaintiff admitted his

signatures on a particular document or not and fairly stated that the

appellant / plaintiff himself was in doubt as to which signatures were his

and which were not his. The closeness of the relationship is further

evident from the appellant / plaintiff in his own hand writing a letter

dated 30.12.1992 to the tenant Smt. Padmawati Anand to the effect that

he had sold the said flat to the respondent / defendant No.1 and that the

respondent / defendant No.1 had full rights to deal therewith with effect

from October, 1992. Copies of the said letter were also forwarded to the

respondent / defendant No.1 and one Sh. S.P. Anand.

18. Even if the version of the appellant / plaintiff were to be accepted,

the fact remains that the appellant / plaintiff, by, i) signing plethora of

blank sheets enabling the respondents / defendants No.1&2 to fill up

anything thereon; ii) by handing over all documents relating to the

property to the respondents / defendants No.1&2; and, iii) in his own

hand writing the letter dated 30.12.1992 to the tenant Smt. Padmawati

Anand with copy to the respondent / defendant No.1, allowed the

respondents / defendants No.1&2 to fully deal with the property and the

respondents / defendants No.1&2 have indeed so dealt, with the

respondents / defendants No.3&4.

19. Though the counsel for the appellant / plaintiff has argued that the

respondents / defendants No.3&4 are in collusion with the respondents /

defendants No.1&2 but has been unable to show any nexus between

them. It is not the case of the appellant / plaintiff that they are partners in

any business or in other properties.

20. It can also safely be presumed that the tenant Smt. Padmawati

Anand would not have surrendered the tenancy rights without

consideration and which has admittedly not flown from the appellant /

plaintiff. The appellant / plaintiff thus also allowed the respondents /

defendants No.1&2 to invest in the property.

21. There is no reason to doubt that the respondents / defendants

No.1&2 would have transferred the property to the respondents /

defendants No.3&4 without any consideration. The respondents /

defendants No.3&4 were thus led, owing to the conduct aforesaid of the

appellant / plaintiff, into changing their position. Section 41 of the

Transfer of Property Act, 1882 provides that where, with the consent

express or implied of the persons interested in immoveable property, a

person is the ostensible owner of such property and transfers the same for

consideration, the transfer shall not be voidable on the ground that the

transferor was not authorized to make it. This Court recently in Raj

Kumari Garg Vs. S.M. Ezaz 190 (2012) DLT 741 dismissed a suit for

possession, inter alia invoking the said Section 41 of the Transfer of

Property Act. The appeal thereagainst was dismissed by the Division

Bench vide judgment reported in MANU/DE/3860/2012. The facts of the

present case are comparable with the facts of the cited judgment and

which apply with full force. The appellant / plaintiff by his conduct

aforesaid let the respondents / defendants No.1&2 represent to others that

they were the ostensible owners of the flat and to transfer the same for

consideration and the appellant / plaintiff cannot now be permitted to

void the said transfer on the ground that the respondents / defendants

No.1&2 were not authorized to do so.

22. Though the said Section 41 of the Transfer of Property Act is

subject to the proviso that the transferee has taken reasonable care to

ascertain that the transferor had power to make the transfer and has acted

in good faith and though there are discrepancies in the documents but in

my view the same do not in any manner undermine the reasonable care

and caution which the respondents No.3&4 were required to take or their

good faith, especially when the appellant / plaintiff has not cross

examined either the respondents / defendants No.1&2 or the respondents /

defendants No.3&4 with respect thereto.

23. It is worth taking judicial notice of that transactions of sale

purchase of immovable property largely remain in the hands of deed

writers and / or typists sitting in the Court complexes or in the office of

the Registrar of Assurances and sellers / purchasers of immovable

property rarely contact advocates or persons steeped in law or competent

to verify the title at the time of such sale purchase. Notice can also be

taken of the fact that standard form documents of Agreement to Sell,

Power of Attorney, Will, affidavit, receipt, possession letter, agreement to

appoint arbitrator etc. are available with such typists / deed writers who

merely change the names of the parties and the address of the property.

Notice can yet further be taken of the fact that such documents change

hand often, without even documents of sale being prepared.

Discrepancies as pointed out, abound in such documents if the same were

to be minutely examined. I am also of the view that such discrepancies /

mistakes in the documents as pointed out, occur when the documents are

being executed / prepared bona fide and in good faith and without

expecting the other party to challenge the same and are unlikely to occur

when documents are fabricated with the knowledge that they are likely to

be challenged.

24. The learned ADJ is correct in drawing adverse inference against

the appellant / plaintiff, for inspite of having been duped by the

respondents / defendants No.1&2 not taking any action whatsoever

against them. The only inference is that the relationship of the appellant /

plaintiff with the respondents / defendants No.1&2 remains good, even if

the version of the appellant / plaintiff of them having duped the appellant

/ plaintiff were to be believed. When the appellant / plaintiff based his

cause of action against the respondents / defendants No.3&4 on such

actions of cheating on the part of the respondents / defendants No.1&2,

the appellant / plaintiff cannot be entitled to the relief against the

respondents / defendants No.3&4 without taking appropriate action in law

against the respondents / defendants No.1&2. The learned ADJ is further

correct in holding that even in the suit from which this appeal arises, no

relief against the respondents / defendants No.1&2 has been claimed and

the relief sought is only with respect to the property in which the

respondents / defendants No.1&2 have no stake today and with which

only the respondents / defendants No.3&4 are concerned.

25. I am further of the view that even if it were to be held that the

appellant / plaintiff as well as the respondents / defendants No.3&4, both

have suffered on account of the respondents / defendants No.1&2, it is the

appellant / plaintiff who has to bear the burden of such loss, being more

to blame for enabling the respondents / defendants No.1&2 to do so. It

has been the settled principle of law noticed recently by me in Rajesh

Gupta Vs. Central Bank of India MANU/DE/4583/2013.

26. I had during the hearing asked the counsel for the appellant /

plaintiff whether the appellant / plaintiff even now has anything to show

that on the dates which the documents purportedly executed by him at

Delhi bear, he was performing his duties outside Delhi. The counsel for

the appellant / plaintiff fairly stated that there is nothing.

27. The appellant / plaintiff claims to have signed documents in blank

and to have handed over the title documents in his favour to the

respondents / defendants No.1&2, for the purpose of having the

conveyance deed of the property executed in his favour. The appellant /

plaintiff has failed to prove this. It has not been proved that the scheme

for conversion of leasehold rights in the property converted to freehold

and whereupon only, the conveyance deed could be executed, was in

force in the year 1992 or that the property was capable of being so

converted.

28. Though the Supreme Court in Suraj Lamp & Industries Pvt. Ltd.

Vs. State of Haryana (2012) 1 SCC 656 has held that documents such as

Agreements to Sell, Power of Attorney etc. are not documents of transfer

of title of property and further, though the respondent / defendant No.4

has not sued for specific performance of the Agreement to Sell and thus

remains an agreement purchaser only but the appellant / plaintiff has not

claimed relief on this basis. The appellant / plaintiff instituted the suit

challenging the Agreement to Sell and other documents purportedly

executed by him and in which he had been unsuccessful. Once the

respondent / defendant No.4 is found to be agreement purchaser in

possession, her possession would be protected under Section 53A of the

Transfer of Property Act.

29. No merit is thus found in the appeal which is dismissed. I refrain

from imposing any costs on the appellant / plaintiff in the hope that the

appellant / plaintiff would not pursue the matter further.

Decree sheet be prepared.

RAJIV SAHAI ENDLAW, J

JANUARY 08, 2014 „gsr‟..