Dilbagh Singh vs Hira Lal
2017 Latest Caselaw 2032 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+            RSA No. 127/2017 & CM No. 15748/2017 (Exemption)

%                                                       26th April, 2017

DILBAGH SINGH                                              ..... Appellant
                            Through:      Mr. N.S.Dalal, Mr. Devesh
                                         Pratap Singh, Mr. Aman Mudgal
                                         and Ms. Toral Banerjee,
                                         Advocates.
                            versus
HIRA LAL                                                  ..... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this Regular Second Appeal filed under Section 100 of

the Code of Civil Procedure, 1908 (CPC) the appellant/defendant

impugns the concurrent judgments of the courts below; of the Trial

Court dated 2.8.2013 and the First Appellate Court dated 30.1.2017; by

which the courts below have decreed the suit for mandatory injunction

and damages by granting the relief of possession to the

respondent/plaintiff with respect to the suit property bearing No. B-28-

30, Bhalswa Dairy Complex, Delhi. The suit has been decreed by the

courts below on an application under Order XII Rule 6 CPC filed by

the respondent/plaintiff.

2. The facts of the case are that the respondent/plaintiff filed

the subject suit pleading that he is the owner of the suit property.

Appellant/defendant is the cousin of the respondent/plaintiff as the

latter is son of the the paternal uncle late Sh. Sonarain. It is then

pleaded that in the year 1990 appellant/defendant approached the

respondent/plaintiff for using of the suit property as a licensee because

the property was lying vacant. Respondent/plaintiff agreed to this

request and appellant/defendant was allowed to occupy the suit

property as a licensee. It is then pleaded that appellant/defendant

became dishonest and wanted to grab the suit property, and therefore,

refused to vacate the suit property and accordingly, a legal notice dated

3.10.2000 was sent to the appellant/defendant. Since the

appellant/defendant still failed to comply with the legal notice by

failing to vacate the suit property, the subject suit for possession and

damages came to be filed.

3. Appellant/defendant contested the suit and pleaded that he

had become the owner of the suit property because appellant/defendant

had paid Rs.20,000/- in cash to the respondent/plaintiff as

token/advance money. It was further pleaded that an additional sum of

Rs.37,000/- was also given to the respondent/plaintiff and a receipt was

signed by the respondent/plaintiff acknowledging the amount of

Rs.37,000/-. It was then pleaded that balance payment of Rs.63,000/-

was paid in two installments of Rs.30,000/- and Rs.33,000/-, both in

cash on 15.6.1990 and 10.7.1990. Accordingly, it is pleaded that the

appellant/defendant became owner of the suit property, and therefore,

respondent/plaintiff was false in urging that appellant/defendant was

only a licensee of the suit property.

4. Respondent/plaintiff filed an application under Order XII

Rule 6 CPC in the trial court and paras 2, 3(a) and (b) of the same are

relevant for the purpose of disposal of the present appeal, and which

read as under:-

"2. That the defendant filed his Written Statement before this Hon'ble Court and has categorically admitted:

a) In Para No.1 of his Written Statement on Merits that the plaintiff is the allottee and owner of the suit property.

b) In Para No.3 of the Preliminary Objections of his Written Statement that possession of the suit property was given to the defendant by the plaintiff.

c) In Para No.7 to 9 of the Written Statement on Merits that the defendant received the legal notice dated 03/10/2000 terminating his license and he send his reply dated 17/10/2000 to the plaintiff.

d) In Para No.7, the per day market rate of the suit property being Rs.300/- on the date of sending legal notice.

3. That the Written Statement of the defendant read as a whole categorically shows that the defendant has no right, title and interest in the suit property. The Written Statement of the defendant shows that:-

a) The defendant has no title documents whatsoever in respect of the suit property; the defendant is unable to file and show even a single document of any nature executed by the plaintiff in his favour in respect of the sale of suit property for any consideration whatsoever such as Agreement of Sale or Sale Deed or Receipts or Possession Letter or GPA or Will.

b) The defendant is unable to produce even a single receipt of any date whatsoever showing any payment made by him to the plaintiff for such alleged and false sale although the defendant falsely averred to have made payments of Rs.20,000/-(Rupees twenty thousand), Rs.37,000/- (Rupees thirty-seven thousand), Rs. 30,000/- (Rupees

thirty thousand) and Rs.33,000/- (Rupees thirty-three thousand) on four different dates.

c) ........." (underlining added)

5. Both the courts below have held that the suit is liable to be

decreed under Order XII Rule 6 CPC because by an oral agreement an

immovable property cannot be purchased. Once the defence of the

appellant/defendant of having purchased the suit property by virtue of an

oral agreement could not in law be looked into there remained no defence

and hence the suit so far as the requirement of possession was concerned

was liable to be decreed.

6. I completely agree with the conclusions of the courts below

inasmuch as appellant/defendant even assuming that he paid money for

purchase of the property, yet appellant/defendant cannot become the

owner of the suit property because admittedly there is no document which

complies with the requirement of either Section 17(1)(a) of the

Registration Act, 1908 or Section 54 of the Transfer of Property Act,

1882 i.e there are no registered documents showing transfer of title of the

suit property from the respondent/plaintiff to the appellant/defendant. In

fact, it is seen that respondent/plaintiff as per the contents of paras 2 and

3(a) and (b) of the application under Order XII Rule 6 CPC pointed out

that there was no dispute that the respondent/plaintiff was the original

allottee of the property and the appellant/defendant had filed not even a

single document whatsoever whether showing any payment by the

appellant/defendant to the respondent/plaintiff or any document of

transfer of title of the suit property from the respondent/plaintiff to the

appellant/defendant. Accordingly, the courts below have rightly decreed

the suit under Order XII Rule 6 CPC because there was no disputed

question of fact which required trial inasmuch as the defence of the

appellant/defendant was not a valid defence in accordance with law and

once there is no valid defence which can be looked into because by an

oral agreement an immovable property could not have been purchased by

the appellant/defendant from the respondent/plaintiff, there remained no

other defence for which any trial was required to be conducted for

decreeing of the suit for possession.

7. Learned counsel for the appellant/defendant very

vehemently argues that the subject suit could not have been decreed under

Order XII Rule 6 CPC because there were disputed questions of fact

which required trial, however, in my opinion the argument is

misconceived because the only defence of the appellant/defendant was

that he purchased the suit property under an oral agreement, but an oral

agreement cannot transfer an immovable property with the further fact

that not a single document was filed by the appellant/defendant showing

payment of consideration firstly of Rs.20,000/-, then of Rs.37,000/- then

of Rs.30,000/- and thereafter of Rs. 33,000/-. Accordingly, there was no

document whatsoever filed in the courts below, much less a legally

required document, showing that there was transfer of title in the suit

property from the respondent/plaintiff to the appellant/defendant.

8. To complete the narration I must note that there is no

defence of the appellant/defendant laid out in the suit under Section 53A

of the Transfer of Property Act, and even assuming such a defence would

have been laid out, such defence would not have succeeded because there

is not a single document in the court record showing any written

agreement in the nature of Section 53A of the Transfer of Property Act,

by which the appellant/defendant could have taken benefit of the doctrine

of part performance against the respondent/plaintiff. It is also interesting

and curious to note that the appellant/defendant while talking of the

payment of the first token money of Rs.20,000/- for entering into the

agreement, does not even refer any specific date of this first alleged

receipt and which would be the first agreement between the parties and

which document must satisfy the requirement of Section 53A of the

Transfer of Property Act for the appellant/defendant to take benefit of the

doctrine of part performance.

9. No substantial question of law arises for this second appeal

to be entertained. Dismissed.

APRIL 26, 2017/ib                              VALMIKI J. MEHTA, J