Amarjit Singh And Ors. vs Attar Singh
2014 Latest Caselaw 1361 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+            RSA No.197/2013 and C.M. Nos.13883/2013 & 1005/2014
             (stay)

%                                                    13th March, 2014

AMARJIT SINGH AND ORS.                              ......Appellants
                  Through:               Mr. Vishwendra Verma, Advocate.

                          VERSUS

ATTAR SINGH                                                ...... Respondent

                          Through:       Mr. Amarjit Singh, Advocate.

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Second Appeal is filed under Section 100 of Code of Civil

Procedure, 1908 impugning the concurrent judgments of the courts below; of

the trial court dated 18.4.2012 and the first appellate court dated 5.8.2013;

by which the suit of the respondent/plaintiff for possession, declaration,

injunction, recovery of arrears of rent etc was decreed by passing of decree

for possession with respect to the suit premises being plot no.S-11-D,

Second floor, Humanity House, Pandav Nagar, Delhi-110092. The

respondent/plaintiff was also granted a decree for recovery of arrears of rent

from 1.9.2009 till 30.6.2010 at Rs.3,700 per month and from 1.7.2010 till

the realization of the amounts at Rs.5,000/- per month.

2. It is not in dispute that the suit premises were originally taken

on rent by the appellant no.1/defendant no.1 namely Sh. Amarjit Singh. The

issue is whether the respondent/plaintiff/landlord did not remain as landlord

inasmuch as he transferred his ownership interest in the suit property by

means of the usual documents being the agreement to sell, power of

attorney, affidavit etc, Ex.PW1/26 to Ex.PW1/31 (all dated 7.7.2005) in

favour of Smt. Mahender Kaur who is the wife of the appellant

no.1/defendant no.1 and which Smt. Mahender Kaur further executed a

registered sale deed dated 19.3.2010 in favour of her son Sh. Rajvinder

Singh, appellant no.2/defendant no.2.

3. Trial court in the suit framed the following issues:-

"1. Whether the plaintiff is entitled to the recovery of possession as prayed for?

2. Whether plaintiff is entitled to the recovery of arrears of rent, if so, from what rate and from what period? OPP

3. Whether plaintiff is entitled to the relief of declaration as prayed for? OPP

4. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP

5. Relief."

4. Issue no.3 has been held in favour of the appellant to the extent

that the documents Ex.PW1/26 to Ex.PW1/31 have been held not to have

been executed under the influence of liquor or coercion as was the case of

respondent/plaintiff. This is concluded in paras 11 and 12 of the impugned

judgment of the trial court dated 18.4.2012 and which read as under:-

"11. ISSUE NO.3 Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP The onus to prove this issue is upon the plaintiff. Vide present issue plaintiff is seeking declaration of the documents Ex.PW1/26 to Ex.PW1/32 as null and void. Which were executed by him in favour of late Smt. Mahender Kaur wife of defendant no.1 and mother of defendant no.2 to 4 and further seeks declaration that none of the defendants have legal rights over the suit property on the basis of those documents. The first question before the court is whether the document Ex.PW1/26 to PW1/31 are executed by the plaintiff under due pressure and coercion or under the influence of liquor. The PW-1 has deposed in his examination in chief on the same limes as he has asserted in his plaint. But when he was cross-examined he has admitted that he is mentally fit, and had not taken any treatment from psychiatrist or from any other mental hospital. He further deposed that he does not know for which disease the doctor has given him treatment in the year 2007. He further admitted in the cross- examination that he used to get meal properly, used to wear properly and do usual day to day work properly. His son PW-2 also admitted in his cross-examination that his father is never suffering from any disease except high B.P. and Asthma. PW-2 further admitted in cross- examination that his father/plaintiff never lost his memory and always remaining quite well. The plaintiff has not examined the doctor who has issued the medical certificates to him to prove that plaintiff was unfit to do usual work, due to the disease mentioned in the document Ex.PW1/6 to PW1/8 and Mark B. So from the perusal of evidence on

record it is not proved that plaintiff was ever suffered from any disability to do his day to day work.

12. The next question is whether the document Ex.PW1/26 to 31 were executed by the plaintiff under the influence of liquor or undue influence. The document Ex.PW1/27 to 31 are not registered documents. The document Ex.PW1/26 is executed and registered before the registrar of the document. The plaintiff deposed in his examination in chief that he was forced to go to the office of Sub-registrar Delhi in the month of July 2005 on the pretext to sign rent deed. The PW-2 deposed in his cross-examination that he returned to India in the month of August, 2000, and remained in India upto 2006 in the house with his father. The plea of the plaintiff that he was forced to go in Sub-registrar office in July, 2005 seems not correct. Because if he was forced to go to the sub-registrar office then definitely he had to narrate that facts to his son who returned to India in August 2000. The plaintiff and his son might have ample opportunity to enquire from the office of registrar which document has been executed in the Month of July 2005 by the plaintiff in favour of the defendants or wife of defendant no.1. It is not alleged by the plaintiff that he was threatened by the defendants from disclosing the facts that he was forced to go in the sub-registrar office by the defendants or by late Smt. Mahinder Kaur. The plaintiff and his son were free to approach the court or the concerned police if document has been executed by force. So I am of the view that documents Ex.PW1/26 to PW1/31 were executed by the plaintiff by his own."

(underlining added)

5. Trial court however dismissed the suit by holding that the

documents dated 7.7.2005 cannot result in transferring the ownership rights

in the property in view of the judgment of the Supreme Court in the case of

Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana and Anr. (183)

2011 DLT 1 (SC). Trial court has also held that the appellants failed to

prove that any consideration was paid to the respondent/plaintiff under the

documents Ex.PW1/26 to Ex.PW1/31. Trial court therefore decreed the suit

for possession alongwith the claim of arrears of rent and mesne profits.

6. The first appellate court has upheld the findings of the trial

court almost by a non-speaking judgment because out of 12 pages of the

impugned judgment, 11 pages simply reproduces the contentions and

arguments of the parties, and in one page it is simply held that judgment of

the trial court is correct and needs to be upheld.

7. For the purpose of disposal of this second appeal, the following

substantial questions of law are framed as required by Section 100 of CPC:-

"1. Whether the courts below have erred in holding that the

documents Ex.PW1/26 to Ex.PW1/31 being the agreement to sell, general

power of attorney, Will etc read with the sale deed Ex.PW1/32 executed by

Smt. Mahender Kaur in favour of her son Sh. Rajvinder Singh do not convey

the ownership rights in the suit property in favour of the appellant

no.2/defendant no.2/Sh. Rajvinder Singh?

2. Whether the conclusions of the courts below that the documents

Ex.PW1/26 to Ex.PW1/31 are void on account of Section 25 of the Contract

Act, 1872 because no consideration is proved to have been passed under

these documents?"

8(i) Let me first turn to the second question as to whether the

documents Ex.PW1/26 to Ex.PW1/31 are documents void on account of lack

of consideration in view of Section 25 of the Contract Act, 1872.

(ii) In my opinion, the entire findings and conclusions of the courts

below of consideration having been not passed to the respondent/plaintiff in

terms of the documents Ex.PW1/26 to Ex.PW1/31 were not at all necessary

because once these documents have been proved to have been executed in

favour of the appellant no.1/defendant no.1 by the respondent/plaintiff the

contents of these documents also become binding in view of Sections 91 and

92 of the Evidence Act, 1872. For looking at the terms of contract only the

contract has to be looked into in view of Sections 91 and 92 of the Evidence

Act, 1872 and no oral evidence is permitted to contradict or vary the terms

of the document. Therefore, once the documents Ex.PW1/26 to Ex.PW1/31

speak of passing of consideration no oral evidence could be led to contradict

or vary the contents of the written documents. On this single ground itself

the entire findings of the courts below that consideration did not pass to the

respondent/plaintiff under the documents Ex.PW1/26 to Ex.PW1/31 is liable

to be set aside and it is held that consideration did pass to the

respondent/plaintiff under these documents.

9(i) The issue now to be examined is whether the courts below have

arrived at a correct conclusion by relying upon the judgment in the case of

Suraj Lamps & Industries Pvt. Ltd. (supra) to hold that documents

Ex.PW1/26 to Ex.PW1/31 did not transfer any right, title and interest in the

suit property firstly to the appellant no.1/defendant no.1 and then to the

appellant no.2/defendant no.2 under the sale deed dated 19.3.2010, Ex.

PW1/32.

(ii) In this regard, the conclusions which are arrived at by the courts

below are clearly illegal because the courts below have failed to appreciate

that really it is not the issue of finality of the documents Ex.PW1/26 to

Ex.PW1/31 which is in issue but the fact of the matter is that there is a

registered sale deed Ex.PW1/32 executed by Smt. Mahender Kaur, as an

attorney of respondent/plaintiff, in favour of the appellant no.2/defendant

no.2/Sh. Rajvinder Singh and who is her son. This registered sale deed is

executed by Smt. Mahender Kaur as a power of attorney holder of the

respondent/plaintiff and which is so mentioned in the sale deed Ex.PW1/32.

This aspect is mentioned at internal page 3 of the sale deed Ex.PW1/32 that

the vendor Smt. Mahender Kaur is the holder of general power of attorney of

respondent in view of the registered power of attorney dated 7.7.2005

registered as document No.13156 in book No.4, Volume I, 625 at pages 138

to 141. I have already mentioned that this power of attorney has been

proved and exhibited as Ex.PW1/26. The sum and substance is that there is

transfer of ownership interest in the suit property by a registered sale deed

from the respondent/plaintiff acting through his registered power of attorney

holder Smt. Mahinder Kaur to the appellant no.2/defendant no.2/Sh.

Rajvinder Singh. Therefore, there does not arise the issue of applicability of

the judgment of the Supreme Court in the case of Suraj Lamps & Industries

Pvt. Ltd. (supra) and which only deals with the documents being agreement

to sell, power of attorney, Will etc., and that too when such documents are

executed before 25.9.2001 when by Act 48 of 2001 the provision of Section

53A of the Transfer of Property Act, 1882 and other related sections of the

other statutes, were amended to provide that the benefit of doctrine of part

performance under Section 53A and other rights would only be available by

stamping and registration of the agreement to sell etc.

(iii) In fact, in the present case at best the case of the

respondent/plaintiff could have been to the lack of adequate stamping of the

registered general power of attorney Ex.PW1/26 but no such objection

having been raised, that objection is deemed to have been waived as per

Section 36 of the Indian Stamp Act, 1899 which states that where an

instrument has been admitted in evidence the same shall not be questioned

subsequently at any stage in the same suit or proceedings on the ground that

instrument has not been duly stamped. Therefore, I hold that appellant no.2

has become owner of the suit property by means of a registered sale deed

executed by Smt. Mahender Kaur, (his mother) as the registered general

power of attorney holder of the respondent/plaintiff and accordingly there is

no scope for application of the judgment of the Supreme Court in the case of

Suraj Lamps & Industries Pvt. Ltd. (supra).

10. At this stage, I may state that counsel for the

respondent/plaintiff contended that the appellant no.1/defendant no.1

continued to be a tenant after July, 2005 by making payment of rent,

however, on a query from the Court it is conceded that respondent/plaintiff

has no documentary proof whatsoever of any payment of rent to the

respondent/plaintiff by the appellant no.1/defendant no.1 after execution of

the documents Ex.PW1/26 to Ex.PW1/31 on 7.7.2005 including of whether

the same be payment of rent by cheques or of any rent receipts signed by the

appellant no.1/defendant no.1. No doubt, the courts below have held that

tenancy should be taken as existing because there is no cross-examination of

the respondent/plaintiff with respect to the aspect of tenancy, however, lack

of cross-examination is only one of the aspects which a Court has to see in

order to arrive at a final conclusion in a case, and in my opinion considering

the documents Ex.PW1/26 to Ex.PW1/32 and that there is no documentary

evidence of payment of rent after 7.7.2005 to the respondent/plaintiff,

merely a failure to suggest in the cross-examination the aspect of there not

existing a tenancy cannot mean negation of the entire set of documents

Ex.PW1/26 to Ex.PW1/32 for holding that the respondent/plaintiff ceased to

be the owner of the property and therefore the landlord.

11. In view of the above, substantial questions of law are answered

in favour of the appellants/defendants and it is held that the

respondent's/plaintiff's suit for possession, declaration, injunction, recovery

of arrears of rent etc was misconceived and the same was liable to be

dismissed and is accordingly dismissed. Parties are left to bear their own

costs.

MARCH 13, 2014                                VALMIKI J. MEHTA, J.
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