Delhi High Court
Bishan Chand vs Ved Prakash (Since Deceased) Thr ... on 14 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 14th September, 2018
+ RSA 131/2018, CM No.37323/2018 (for stay) & CM No.37326/2018
(for condonation of delay of 144 days in re-filing the appeal).
BISHAN CHAND ..... Appellant
Through: Mr. Hem C. Vashisht and Mr. Rahul
Malik, Advs.
Versus
VED PRAKASH (SINCE DECEASED)
THR LRS & ANR ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Regular Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 (CPC) impugns the judgment and decree [dated 8 th
December, 2017 in CIS-RCA DJ-8726-2016 (CNR-DLST 01-000072-2013)
of the Court of the District Judge (South)] of dismissal of First Appeal under
Section 96 of the CPC filed by the appellant against the judgment and decree
[dated 22nd November, 2013 in CS No.800/10/1996 (Unique Case ID
No.02401C0070131998) of the Court of Civil Judge-06 (Central)] of
dismissal of suit filed by the appellant/plaintiff against the two
respondent/defendants, (i) for declaration that the appellant/plaintiff is the
owner of plot/property No.B-34, Central Market, Madangir, New Delhi; (ii)
for permanent injunction restraining the respondent/defendant no.1 from
making any construction over the said property; (iii) for mandatory
injunction directing the respondent/defendant no.1 to remove/demolish the
illegal construction raised over the said property; and, (iv) and for recovery
of possession of the said property from the respondent/defendant no.1.
2. The appeal came up first before this Court on 12 th September, 2018,
when on request on behalf of the counsel for the appellant/plaintiff, it was
adjourned to today.
3. The appeal is accompanied with an application for condonation of
delay in re-filing of 144 days. The question of considering the application for
condonation of delay will arise only if the Second Appeal is found to entail a
substantial question of law which is sine qua non for entertaining a Second
Appeal as per dicta of the Supreme Court in Surat Singh Vs. Siri Bhagwan
(2018) 4 SCC 562.
4. The counsel for the appellant/plaintiff has been heard.
5. The appellant/plaintiff and the two respondents/defendants are
brothers. The appellant/plaintiff claimed to have purchased the said property
from respondent/defendant no.2 through Agreement to Sell, Power of
Attorney, Affidavit, Receipt etc. and further claimed to have allowed the
respondent/defendant no.1 use of the said property.
6. The respondent/defendant no.2, in his written statement, denied
Agreement to Sell and other documents on the basis of which the
appellant/plaintiff claimed to have purchased the property.
7. The respondent/defendant no.1 claimed to be a tenant under the
respondent/defendant no.2 in the property at a rent of Rs.100/- per month.
Needless to state that if the occupation/possession of the
respondent/defendant no.1 of the property is as a tenant, at a rent of Rs.100
per month, the Delhi Rent Control Act, 1958 would apply and under Section
14(1) and 50 thereof, the jurisdiction of the Civil Court to order recovery of
possession would be barred.
8. The respondent/defendant no.2 in his written statement admitted the
said tenancy of the respondent/defendant no.1.
9. However the respondent/defendant no.2, in his statement under Order
X of the CPC, admitted his signatures on the Agreement to Sell, Power of
Attorney, Affidavit, Receipt etc. in favour of the appellant/plaintiff but stated
that the said signatures were obtained by the appellant/plaintiff by practicing
misrepresentation.
10. The counsel for the appellant/plaintiff has argued that since the finding
of both the Courts on the issue framed in the suit i.e. "Whether plaintiff has
concealed material facts. If so, its effect? OPD" is in favour of the
appellant/plaintiff, the Courts below have committed an illegality in still
denying relief to the appellant/plaintiff. It is further argued that the
appellant/plaintiff in the First Appeal filed an application under Order XLI
Rule 27 of the CPC to lead additional evidence. It is informed that the
appellant/plaintiff, during the pendency of the appeal, discovered that the
wife of the respondent/defendant no.1 has appeared before the Licencing
Authority claiming to be in possession of the property as a tenant under the
appellant/plaintiff.
11. I have enquired from the counsel for the appellant/plaintiff, that since
the appellant/plaintiff sued for declaration of his title and for recovery of
possession of immovable property on the basis of title, how can the
appellant/plaintiff on the basis of Agreement to Sell, Power of Attorney etc.
be declared to be the owner of the property and be granted a decree of
declaration of title and for recovery of possession on the basis of title.
12. The counsel for the appellant/plaintiff, aware of Suraj Lamp &
Industries P. Ltd. Vs. State of Haryana 2009 (7) SCC 363, (2012) 1 SCC
656, states that the same does not apply to the appellant/plaintiff since the
documents are of the year 1984 i.e. prior to the pronouncement of the said
judgment. However on enquiry as to why the said judgment would not apply,
the counsel for the appellant/plaintiff is unable to give an answer.
13. There appears to be a prevalent misconception that Suraj Lamp &
Industries P. Ltd. supra is only prospective and not retrospective. The
following paragraphs of the said judgment as reported in (2012) 1 SCC 656
are relevant:-
"23. Therefore, a SA/GPA/WILL transaction does not convey any
title nor create any interest in an immovable property. The
observations by the Delhi High Court, in Asha M. Jain v. Canara
Bank, that the "concept of power-of-attorney sales have been
recognized as a mode of transaction" when dealing with
transactions by way of SA/GPA/WILL are unwarranted and not
justified, unintendedly misleading the general public into thinking
that SA/GPA/WILL transactions are some kind of a recognized or
accepted mode of transfer and that it can be a valid substitute for
a sale deed. Such decisions to the extent they recognize or accept
SA/GPA/WILL transactions as concluded transfers, as contrasted
from an agreement to transfer, are not good law.
24. We therefore reiterate that immovable property can be
legally and lawfully transferred/conveyed only by a registered
deed of conveyance. Transactions of the nature of "GPA sales" or
"SA/GPA/WILL transfers" do not convey title and do not amount
to transfer, nor can they be recognized or valid mode of transfer of
immoveable property. The courts will not treat such transactions
as completed or concluded transfers or as conveyances as they
neither convey title nor create any interest in an immovable
property. They cannot be recognized as deeds of title, except to the
limited extent of Section 53-A of the Transfer of Property Act.
Such transactions cannot be relied upon or made the basis for
mutations in municipal or revenue records. What is stated above
will apply not only to deeds of conveyance in regard to freehold
property but also to transfer of leasehold property. A lease can be
validly transferred only under a registered assignment of lease. It
is time that an end is put to the pernicious practice of
SA/GPA/WILL transactions known as GPA sales.
25. It has been submitted that making declaration that GPA
sales and SA/GPA/WILL transfers are not legally valid modes of
transfer is likely to create hardship to a large number of persons
who have entered into such transactions and they should be given
sufficient time to regularize the transactions by obtaining deeds of
conveyance. It is also submitted that this decision should be made
applicable prospectively to avoid hardship.
26. We have merely drawn attention to and reiterated the well-
settled legal position that SA/GPA/WILL transactions are not
"transfers" or "sales" and that such transactions cannot be
treated as completed transfers or conveyances. They can continue
to be treated as existing agreements of sale. Nothing prevents the
affected parties from getting registered deeds of conveyance to
complete their title. The said "SA/GPA/WILL transactions" may
also be used to obtain specific performance or to defend
possession under Section 53-A of the TP Act. If they are entered
before this day, they may be relied upon to apply for
regularization of allotments/leases by development authorities. We
make it clear that if the documents relating to "SA/GPA/WILL
transactions" has been accepted acted / upon by DDA or other
developmental authorities or by the Municipal or revenue
authorities to effect mutation, they need not be disturbed, merely
on account of this decision.
27. We make it clear that our observations are not intended to
in any way affect the validity of sale agreements and powers of
attorney executed in genuine transactions. For example, a person
may give a power of attorney to his spouse, son, daughter,
brother, sister or a relative to manage his affairs or to execute a
deed of conveyance. A person may enter into a development
agreement with a land developer or builder for developing the
land either by forming plots or by constructing apartment
buildings and in that behalf execute an agreement of sale and
grant a Power of Attorney empowering the developer to execute
agreements of sale or conveyances in regard to individual plots of
land or undivided shares in the land relating to apartments in
favor of prospective purchasers. In several States, the execution of
such development agreements and powers of attorney are already
regulated by law and subjected to specific stamp duty. Our
observations regarding "SA/GPA/WILL transactions" are not
intended to apply to such bonafide/genuine transactions."
14. However, as would be clear from the aforesaid paragraphs, the
judgment does not lay down any new law or principle and is not
pathbreaking and merely reiterates the well settled legal position as always
understood in the past as well. Even on request to make the judgment
applicable prospectively, it was clarified that SPA/GPA/Will transactions
effected prior to the said judgment, could not be treated as completed
transfers or conveyances and could be treated as existing agreements of sale
on basis of which conveyance deeds to perfect title could be obtained or
specific performance sought or defence of Section 53A of Transfer of
Property Act, 1882 taken or registration from development authorities
sought. It was further clarified that where on basis of SPA/GPA/Will
transactions, mutations had already been effected, such mutations will also
not be disturbed on account of the judgment. Supreme Court nowhere said
that SPA/GPA/Will transactions of a date prior to the judgement will
constitute a title. Rather, it was held, they would not. The appellant /
plaintiff thus cannot claim that he has title to the property as agreement
purchaser and the courts cannot declare the appellant / plaintiff to be having
title to the property.
15. As far back as in Jiwan Dass Rawal Vs. Narain Dass AIR 1981 Del
291 followed in Deewan Arora Vs. Tara Devi Sen 2009 SCC OnLine Del
3203, Sunil Kapoor Vs. Himmat Singh 2010 SCC OnLine Del 354, ASV
Industry Vs. Surinder Mohan 2013 SCC OnLine Del 3176 and Samarjit
Chakravarty Vs. Tej Properties Pvt. Ltd. 2014 SCC OnLine Del 240, this
Court held that an Agreement to Sell does not vest any title in the property
and only gives a right to seek specific performance. It was further held that
even on passing of a decree for specific performance no right in the property
is acquired by the agreement purchaser till implementation of the said decree
by execution / registration of conveyance / transfer deed being executed in
favour of agreement purchaser.
16. As far as the contention of the counsel for the appellant/plaintiff, of
the application of the appellant/plaintiff under Order XLI Rule 27 of the
CPC having been wrongly dismissed by the First Appellate Court, is
concerned, even if the said evidence were to be allowed and considered, it
would not take away from the fact that the appellant/plaintiff cannot be
declared as owner of the property and the appellant/plaintiff cannot be
granted the decree for recovery of possession inasmuch as even if the
respondent/defendant no.1 were to be held to be a tenant under the
appellant/plaintiff, the jurisdiction of the Civil Court to order his eviction
would be barred as aforesaid by the provisions of the Rent Act.
17. No error is thus found in the judgment and decree impugned. The
same do not raise any substantial question of law.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 14, 2018
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