Yogesh Kumar & Anr. vs Baljit Kaur
2018 Latest Caselaw 1718 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 258/2018

%                                                    14th March, 2018

YOGESH KUMAR & ANR.                                      ..... Appellants
                Through:                 Ms. Vibha      Mahajan Seth,
                                         Advocate.
                          versus

BALJIT KAUR                                              ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. Appl. No. 9914/2018 (for exemption)

Exemption allowed, subject to all just exceptions.

C.M. stands disposed of.

C.M. Appl. No. 9915/2018 (for delay)

For the reasons stated in this application, the delay of 56 days in filing the appeal is condoned, subject to just exceptions.

C.M. stands disposed of.

RFA No. 258/2018 and C.M. Appl. No. 9913/2018 (for stay)

1. This Regular First Appeal is filed under Section 96 of the

Code of Civil Procedure, 1908 (CPC) by the defendants in the suit

impugning the judgment of the trial court dated 1.9.2017 by which the

trial court has decreed the suit for possession against the

appellants/defendants with respect to suit property being a flat

measuring 100 sq. yards on the first floor of property No. 2B/73,

Ramesh Nagar, New Delhi.

2. Respondent/plaintiff filed the subject suit for possession

claiming ownership of the suit property by a chain of title deeds with

the last owner being Smt. Sheela Harchandani and her husband Sh.

Ram Harchandani who transferred rights in the suit property to the

respondent/plaintiff in terms of documentation dated 9.4.2009 being

the registered agreement to sell Ex. PW1/10, receipt Ex.PW1/11,

registered general power of attorney Ex.PW1/12. The site plan of the

suit property has been proved as Ex.PW1/13. Since the chain of title

documents is long and detailed and this has been exhaustively dealt

with by the trial court in paras 2 to 4 in the impugned judgment, these

paras are therefore reproduced as under:-

"2. The brief factual matrix of the suit is that the Plaintiff claims to be the owner of the suit property having purchased the same from its previous owner for a lawful consideration. It is contended that initially one Smt.Sukh Devi, the owner of the suit property being lessee of Government of India had died leaving behind her two sons namely Sh.Bhagwan Dass and Sh.Chaman Lal, in whose names the suit property was mutated on 13.08.1991 vide document marked as Mark

PW-1/1. Sh.Bhagwan Dass and Sh.Chaman Lal sold the entire property to one Sh.Shyam Sunder Gupta and Ms.Hina Chawla vide document Mark-A to G, all dated 10.06.1996.

3. Subsequently, on 23.12.1996 Sh.Shyam Sunder Gupta and Ms.Hina Chawla disposed of the property and executed registered Agreement to Sell in favour of Sh.Sanjay Mahajan and Sh.Shiv Kumar Arora, copy of which is Ex.PW-1/2. Sh.Gaurav Gupta and Dr.Preet Singh Chawla executed registered General Power of Attorney in favour of Smt.Neeru Mahajan wife of Sh.Sanjay Mahajan and Smt.Kamlesh Kumari wife of Sh.Shiv Kumar Arora vide Mark PW-1/2. Smt.Neeru Mahajan and Smt.Kamlesh Kumari on 08.10.1997 executed General Power of Attorney in favour of Smt.Subhash Rani, which is Ex.PW-1/4. While Sh.Sanjay Mahajan and Sh.Shiv Kumar Arora executed Agreement to Sell as well as consideration receipt on 08.10.1997 in favour of Smt.Subhash Rani. The said documents are Ex.PW-1/5 and Ex.PW-1/6 respectively. The Plaintiff has further relied upon Ex.PW-1/7 to Ex.PW-1/9 i.e. Agreement to Sell in favour of Sh.Ram Harchandani, registered General Power of Attorney in favour of Smt.Sheela Harchandani and consideration receipt in favour of Sh.Ram Harchandani, in respect of the property in question i.e. the suit property. It is the case of the Plaintiff that the said documents executed by Smt.Subhash Rani are witnessed by Defendant No.1 Sh.Yogesh Kumar, who is the son of Smt.Subhash Rani.

4. Subsequently on 09.04.2009, Smt.Sheela Harchandani also executed a registered Agreement to Sell in favour of the Plaintiff, which is Ex.PW-1/10, Receipt as Ex.PW-1/11, registered General Power of Attorney as Ex.PW-1/12 and site plan of the property as Ex.PW-1/13. It is thus the case of the Plaintiff that the Plaintiff became the owner of the suit property having purchased the same from Sh.Ram Harchandani, who had purchased the property from Smt.Subhash Rani. It is stated that Smt.Subhash Rani requested Sh.Ram Harchandani to allow her to live in the suit property for some time and after making alternative arrangements she will vacate the suit property. It is further the case of the Plaintiff that before purchasing the suit property, they have requested the Defendants to vacate the suit property which the Defendants failed to do. The Plaintiff was thus given the symbolic possession of the property with assurance from both predecessor in interest and the Defendant herein that they will vacate the suit property soon. However, the Defendant failed to do so. Accordingly, the Plaintiff filed the present suit seeking recovery of permanent injunction, as aforesaid."

3. At this stage, it is required to be noted that against the

appellants/defendants an ex-parte judgment and decree was earlier

passed on 15.11.2011. This ex-parte judgment and decree however

was set aside on an application under Order IX Rule 13 CPC in terms

of an order dated 10.10.2013 whereby appellants/defendants were also

granted opportunity to file the written statement. Inspite of this

opportunity being granted, yet admittedly the appellants/defendants

failed to file the written statement and therefore the right of the

appellants/defendants to file written statement was closed vide order

dated 20.2.2014. This order was challenged in appeal and challenge to

that order was also dismissed in the Chamber Appeal of this Court

vide order dated 13.11.2014. Further, appeal preferred by the

appellants/defendants against the order dated 13.11.2014 was also

dismissed by the Division Bench of this Court vide order dated

2.12.2014 in FAO(OS) No. 502/2014. Therefore, there is no written

statement of the appellants/defendants on record nor is any evidence

led on behalf of the appellants/defendants. On the other hand the

respondent/plaintiff proved her case of ownership of the suit property

by stepping into the witness box and proving all the requisite

documents. Evidence was also led by the respondent/plaintiff that

Smt. Subhash Rani, mother of the appellant no. 1/defendant no. 1 had

received consideration for transfer of property by encashing a cheque

of Rs.1,30,000/- paid from the bank account of Sh. Ram Harchandani

and Smt. Sheela Harchandani. All these aspects with respect to

evidence led by the respondent/plaintiff are stated in paras 7 and 8 of

the impugned judgment and these paras read as under:-

"7. The Plaintiff examined herself as PW-1 and led her evidence by way of her affidavit as Ex.PW-1 thereby exhibiting the following documents:-

i) Letter dated 13.08.1991 issued by Dy. Land & Development Officer is Ex.PW-1/1. (De-exhibited and marked as Mark PW-1/1)

ii) Agreement dated 23.12.1996 is Ex.PW-1/2.

iii) Photocopy of GPA in favour of Smt.Neeru Mahajan is Ex.PW-1/3. (De-exhibited and marked as Mark PW-1/2)

iv) Original GPA dated 08.10.1997 is Ex.PW-1/4.

v) Agreement to Sell dated 08.10.1997 is Ex.PW-1/5.

vi) Consideration Receipt is Ex.PW-1/6.

vii) Original General Power of Attorney dated 14.02.2001 is Ex.PW-1/7.

viii) Agreement to Sell and Purchase dated 14.02.2001 is Ex.PW-1/8.

ix) Receipt dated 14.02.2001 is Ex.PW-1/9.

x) Sale Agreement dated 14.02.2001 is Ex.PW-1/10.

xi) Receipt of Rs.11 lacs is Ex.PW-1/11.

xii) General Power of Attorney dated 09.04.2009 is Ex.P-1/12

xiii) Site plan is Ex.PW-1/13.

xiv) Sh.Ram Harchandani and Smt.Sheela Harchandani sold the suit property to the Plaintiff and the documents executed in this regard are exhibited as Ex.PW-1/9 & Ex.PW-1/10, duly registered with Sub Registrar on 09.04.2009.

xv) Copy of Agreement to Sell and Purchase dated 10.06.1996 is Mark A.

xvi) Copy of GPA executed in favour of Sh.Gaurav Gupta and Dr.Preet Singh Chawla is Mark B.

xvii) Copy of Agreement to Sell and Purchase dated 06.06.1996 is Mark-C xviii) Copy of GPA executed in favour of Sh.Gaurav Gupta and Dr.Preet Singh Chawla is Mark D.

xix) Possession Letter dated 06.06.1996 is Mark E. xx) Copy of Receipt executed in the month of June, 1996 is Mark F.

xxi) Copy of receipt executed on 06.06.1996 is Mark G. xxii) Mark H is certified copy of the application moved before the Central Bank of India seeking details of account No.14186 and xxiii) Mark I is certified copy of passbook of the account No.14186.

8. The Plaintiff has also summoned a witness namely Sh.Jagdish Negi,CTO, Central Bank of India who was examined as PW-2. He produced the record pertaining to account No.14186, which was in the name of Sh.Ram Harchandani and Sheela Harchandani. He exhibited the statement of account of the said bank account for the period 01.02.2001 to 28.02.2001 as Ex.PW-2/1, which shows that a cheque to the tune of Rs.1.30 lacs was cleared in the name of Sh.Subhash Rani, mother of Defendant No.1 on 15.09.2001. This witness also proved the account opening form, account opening register of the said bank account as Ex.PW-2/2."

4. In view of the aforesaid facts which include the fact of

there being no written statement of the appellants/defendants as the

right to file the same was closed with such issue achieving finality in

view of dismissal of the appeals filed by the appellants/defendants,

and that the respondent/plaintiff had proved her case by leading

evidence, trial court therefore was entitled to believe such evidence

and has rightly decreed the subject suit for possession. Trial court also

rightly notes that the mother of the appellant no. 1/defendant

no.1/Smt. Subhash Rani was the owner of the suit property and had

executed the title deeds in favour of Sh. Ram Harchandani. The

argument of the appellants/defendants was that signatures of Smt.

Subhash Rani were taken fraudulently by Sh. Ram Harchandani was

an argument without merit because obviously this was an argument

without any evidence to back up the same with the fact that besides

the respondent/plaintiff proving the documents executed by Smt.

Subhash Rani in favour of Sh. Ram Harchandani and Smt. Sheela

Harchandani, it was also proved by the respondent/plaintiff that sale

consideration was received by Smt. Subhash Rani through cheque

which was paid from the bank account of Sh. Ram Harchandani and

Smt. Sheela Harchandani proved as Ex.PW2/1.

5. Learned counsel for the appellants/defendants argues that

in the registered agreement to sell Ex.PW1/10 executed by Smt.

Sheela Harchandani in favour of respondent/plaintiff the factum of

respondent/plaintiff being given physical possession is stated but

actually physical possession was not given and therefore what is stated

in the registered agreement to sell will not help the

respondent/plaintiff for holding that respondent/plaintiff had received

possession under this agreement to sell. What I understand from the

argument urged on behalf of the appellants/defendants is that

appellants/defendants being third parties to the agreement to sell

Ex.PW1/10 can argue that since physical possession was actually not

delivered under the agreement to sell by Smt. Sheela Harchandani to

respondent/plaintiff, and once that is so, the entitlement of the

respondent/plaintiff relying on the agreement to sell and connected

documents must fail.

6. I am unable to agree with the arguments urged on behalf

of the appellants/defendants because at best the effect of the

arguments urged on behalf of the appellants/defendants would be that

only symbolic possession would have been given by Smt. Sheela

Harchandani to the respondent/plaintiff and not actual physical

possession. There is however no requirement under Section 53A of

the Transfer of Property Act, 1882 that to get a benefit of Section 53A

of the Transfer of Property Act the transfer of possession must be

transfer of actual physical possession. A symbolic possession is also

sufficient under Section 53A of the Transfer of Property Act because

for example a property may be in possession of a tenant and such a

tenanted property can be transferred by the owner to a buyer in terms

of Section 53A of the Transfer of Property Act, and that in such

circumstances it cannot be argued that the buyer will not receive the

benefit of the provision of Section 53A of the Transfer of Property

Act.

7. Also, in my opinion dishonest persons such as the

appellants/defendants in no manner should be allowed to take benefit

of any technicality because the admitted position on record is that the

mother of the appellant no.1/defendant no.1/Smt. Subhash Rani was

the owner of the property, she had signed transfer documents in favour

of Smt. Sheela Harchandani and her husband Sh. Ram Harchandani,

Smt. Subhash Rani's bank account showed encashment of a cheque of

Rs.1,30,000/- issued from the account of Sh. Ram Harchandani and

Smt. Sheela Harchandani as noted in para 8 of the impugned judgment

wherein it is seen that the bank account statement was proved as

Ex.PW2/1.

8. Clearly the case set up by the appellants/defendants of the

mother Smt. Subhash Rani not transferring the suit property to Sh.

Ram Harchandani and Smt. Sheela Harchandani is false to the

knowledge of the appellants/defendants because I put a specific query

to the counsel for the appellants/defendants that where are the original

chain of title deeds, and which are in many numbers as stated in paras

2 to 4 of the impugned judgment, and there is no answer which is

forthcoming as to the fact that the appellants/defendants are allegedly

in possession of all the chain of title deeds. Obviously, no reply is

given because the entire chain of title deeds were handed over by Smt.

Subhash Rani to Sh. Ram Harchandani and Smt. Sheela Harchandani

when the suit property was sold to Sh. Ram Harchandani and Smt.

Sheela Harchandani. The facts of the present case show scant regard

of the appellants/defendants for honesty because Smt. Subhash Rani

had transferred the suit property to Sh. Ram Harchandani and Smt.

Sheela Harchandani and Sh. Ram Harchandani and Smt. Sheela

Harchandani had consequently with them the entire chain of original

title documents which were delivered by them to the

respondent/plaintiff, and thereby the respondent/plaintiff has filed and

proved on record the ownership documents with respect to entitlement

of the suit property.

9. In view of the aforesaid discussion, there is no illegality

in the impugned judgment which calls for interference by this Court.

The impugned judgment is therefore sustained by dismissing this first

appeal.

10. Since appellants/defendants are clearly grossly dishonest

persons who are abusing the process of law, therefore, this appeal is

dismissed with costs of Rs.50,000/- which shall be deposited by the

appellants/defendants with the website www.bharatkeveer.gov.in

within four weeks. I note that costs for abusing the process of law are

not subject matter of Section 35 CPC which only deal with imposition

of costs to the aggrieved party and that it will be the provision of

Section 151 CPC which will apply with respect to imposition of costs

for abusing the judicial process. In case, the appellants/defendants do

not deposit the costs and do not file receipt in this Court within a

period of four weeks from today, then Registry will list the matter in

Court for initiating appropriate action against the

appellants/defendants.

MARCH 14, 2018                               VALMIKI J. MEHTA, J
AK