Delhi High Court
Madan Mohan Dass & Anr vs Brigadier Yellepeddy S Rao ... on 1 June, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 17.03.2021
Date of Decision : 01.06.2021
+ RFA 1075/2019 & CMs 54485/2019, 20749/2020
MADAN MOHAN DASS & ANR ..... Appellants
Through Mr.Sunil Dalal, Mr.Pradeep
Singh & Ms.Surbhi Mehta,
Advs.
versus
BRIGADIER YELLEPEDDY S RAO (RETIRED) & ORS
..... Respondents
Through Mr.Mohit Gupta and
Ms.Meenakshi Garg, Advs.
alongwith R1 & R2 (through
VC
+ RFA 1083/2019 & CM 54786/2019
DASS PROPERTIES & CONSTRUCTIONS (P) LTD & ANR
..... Appellants
Through Mr.Sunil Dalal, Mr.Pradeep
Singh & Ms.Surbhi Mehta,
Advs.
versus
BRIGADIER YELLEPEDDY S RAO (RETIRED) & ORS
..... Respondents
Through Mr.Mohit Gupta and
Ms.Meenakshi Garg, Advs.
alongwith R1 & R2 (through
VC
Signature Not Verified
Digitally Signed
By:SHALOO BATRA
02.06.2021 18:14:34
RFA 1075/2019 & RFA 1083/2019 Page 1
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
1. These appeals have been filed challenging the common
judgment and order dated 27.07.2019 passed by the learned Additional
District Judge-03, South-West District, in Civil Suit No. 15870/2016
titled Brigadier Yellepeddy S. Rao (Retired) & Anr. vs. Sh. Madan
Mohan Das & Ors., and in Civil Suit No. 15859/16 titled Brigadier
Yellepeddy S. Rao (Retired) & Anr. vs. M/s Dass Properties and
Constructions Pvt. Ltd. & Ors.
2. The first of the Suits, being Civil Suit No.15870/2016, was filed
by the respondent no. 1 on 16.09.2011, in relation to portion of land
measuring 60' x 45' i.e. 300 Sq. yds. on the extreme
western side of a larger side measuring 1067 sq. yds. in
Khasra No. 27/5/2 i.e. one Bhiga and 1-1/3 biswas
approx. in village Mirzapur (Palam), Delhi, presently known as
H.No.H-4/108/A, Mahavir Enclave, Part-I, New Delhi - 110045,
(hereinafter referred to as 'Suit Land') claiming as under:-
"a. That a land measuring 15 Bhigas 10 biswas bearing mustatil No. 16
Killa No. 26/03 (0-5). Mustatil No. 27, Killa No.6 (4-9), 5/2(3-12) and
Mustatil No.28, Killa No. 1(4-16), 10/2(2-8)situated at Village
Mirzapur, Delhi, was allotted to one Smt. Phullo, D/o Smt. Ghogari,
R/o Village Palam, Delhi. That Smt. Phullo, during the lifetime of her
mother, had been declared as "BHUMIDAR" of the said land under
the Delhi Land Reforms Act, 1954-55.
b. That abovesaid Smt. Phullo had sold the abovesaid land vide sale
deed dated 22/11/1973, sale deed bearing No. 4032 at Sub-Registrar
II, Delhi to one Major General Harkesh Chander Gahlaut, S/o Sh.
Ranjit Singh residing at D-I/2, Paschim Puri, New Delhi-63.
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c. That thereafter Major General Harkesh Chander Gahlaut sold the
abovesaid land to one Sh. Mohar Singh S/o Sh. Chander Singh, R/o B-
80, Ganesh Nagar, New Delhi - 110008, by virtue of a sale deed
executed at Sub-Registrar II, Delhi.
d. That on 08/06/1981 a sale deed was executed by one Sh. Mohar Singh
S/o Sh. Chander Singh, R/o B-80, Ganesh Nagar, New Delhi- 110008,
in respect to 1067sq. yds. i.e. one Bhiga and 1-1/3 biswas approx. in
Khasra No.27/5/2 out of the total agriculture land of 15 bhigas 10
biswas in favour of Sh. B.K. Garudachar, S/o Sh. B.V. Krishna lyengar
and Smt. B.G. Lakshmi, W/o Sh. B.K. Garudachar, both residing at A-
83, Defence Colony for a total consideration of Rs. 16,000/-. A copy of
sale deed dated 08/06/1981 is marked and annexed herewith as
Annexure P-2.
e. That thereafter on 19/07/1987 an agreement of sale was
entered between the Plaintiff and Sh. B.K. Garudachar
and Smt. B.G. Lakshmi for a consideration amount of Rs.
40,000/- in respect to the suit property i.e. portion of land
measuring 60' x 45' i.e. 300 Sq. yds. on the extreme
western side of a larger side measuring 1067 sq. yds. in
Khasra No. 27/5/2 i.e. one Bhiga and 1-1/3 biswas
approx. in village Mirzapur (Palam), Delhi presently known as
Mahavir Enclave. That the said consideration amount was paid by the
Plaintiff on the date of execution of the agreement of sale and the
plaintiff was handed over the physical possession of the suit property.
A copy of the agreement of sale dated 19/07/1987 is marked and
annexed herewith as ANNEXURE P-3. A copy of the receipt for an
amount of Rs.40,000/- is marked and annexed herewith as
ANNEXURE P-4.
f. That thereafter confirming the above said agreement of
sale, a registered a general power of attorney bearing No.144/87.88
dated 05/08/1987 was executed by Sh. B.K.
Garudachar and Smt. B.G. Lakshmi in favour of the Plaintiff in
respect to a portion of land measuring 60' x 45' i.e. 300 Sq. yds. on the
extreme western side of a larger side measuring 1067sq. yds. in
Khasra No.27/5/2 i.e. one Bhiga and 1-1/3 biswas approx. in village
Mirzapur (Palam), Delhi which is the suit property of the present suit.
A copy of general power of attorney dated 05/08/1987 bearing No.
144/87.88 is marked and annexed herewith as Annexure P-5.
g. That soon after the execution of the general power of attorney, the
plaintiff got busy in Bombay (Mumbai) Post-retirement from army,
busy executing some assignment in Mazagon Dock Limited. That as
the plaintiff was busy, he asked one of his friends Sh.V.Sridhara Sastry
Signature Not Verified
Digitally Signed
By:SHALOO BATRA
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to get a boundary wall constructed demarcating the area of the suit
property i.e. 300 Sq. yds. on the extreme western side of a larger side
measuring 1067 sq. yds. in Khasra No. 27/5/2 i.e. one Bhiga and 1-1/3
biswas approx. in village Mirzapur (Palam), Delhi presently known as
H4/108/A Mahavir Enclave, Part 1, New Delhi 110045. That the said
construction was got done by Sh. V. Sridhara Sastry through one Mr.
G. Ekambara Sarma. That some letters were also written by the said
persons to the plaintiff. A copy of the letters dated 20/07/1987,
27/07/1987 and 22/05/1989 are marked and annexed herewith as
ANNEXURE P-6(Colly)
h. That thereafter the plaintiff used to make visits at the suit property
once in a while and was taking care of the suit property through his
friends. The plaintiff frequently got the suit property cleaned and was
enjoying the peaceful possession of the property. That in 1996 the
plaintiff got free from his assignment in Mumbai and was more
frequent in visiting suit property. That during the period of 1989-2011
various buildings/houses were constructed near and adjacent to the
suit property and all of the said buildings came up in front of the
plaintiff only. Though the plaintiff also got various offers to sell off the
suit property, but the plaintiff was not interested and wanted to retain
the suit property. That since the date of being handing over the
physical possession of the property, the plaintiff was in sole
possession of the suit property, till 22/01/2011 i.e. the last date when
the plaintiff visited the property. That on the said date also the
boundary wall of the suit property was intact, though various
buildings/houses had come up in adjacent plots/lands.
i. That thereafter when the plaintiff visited the suit property on 07th
February 2011, the plaintiff was shocked to see that the boundary wall
of the suit property had been broken and some brick work was being
done in the suit property and the plaintiff saw some trespassers/labors
on the said property, that when the plaintiff told them that the said
property belongs to the plaintiff and for whom the said persons are
carrying construction, they just told the plaintiff that they were casual
labors and stated that they will call their contractor and left the suit
property and the plaintiff kept on waiting till evening, but no one
appeared. That thereafter the complainant left for his home.
j. That on the next day 8/02/2011 the plaintiff again visited the suit
property, but no one was present at the suit property and no
construction was being carried on. That the plaintiff tried to enquire
from the neighbors as to who are the trespassers and the persons
getting the construction done at the suit property, but the neighbors
and the nearby people had no information in respect to them. That the
Signature Not Verified
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plaintiff also told the neighbors to give information if any construction
is initiated.
k. That again the plaintiff visited the suit property on 10/02/2011, but no
construction was being done and no one was in the suit property. That
thereafter again the plaintiff visited the suit property after a week and
the status of the suit property was same and the plaintiff thought that
the same was being done by some local mischievous persons and the
same has stopped so neither did the complainant made any complaint
nor took any action in respect to the same.
1. That thereafter shockingly on 17/03/2011, in afternoon the plaintiff
got a call from one of the neighbors near the suit property, who
intimated the plaintiff about the construction and selling off the suit
property. That the plaintiff was shocked to hear the same and
informed the neighbor, that the plaintiff has not let out or sold the
property and has not authorized any person to carry on construction
at the said building. That the said neighbor was not having the details
of the person who was carrying on construction activity. That having
no other option the plaintiff reached the site of the suit property and
was shocked to see that construction was going on certain area of the
suit property marked in red in the site plan annexed. That further the
plaintiff was shocked to see that construction was being done at quite
a fast pace. That when the applicant told the various laborers working
there to stop construction as plaintiff was the owner of the said
property, they did not listen and told the plaintiff that they are casual
labors and they do not know who is getting the building constructed.
That they further said that their boss/contractor will come at 7:00 PM,
and the plaintiff can seek further details from him. That the plaintiff
waited till 8:00 PM, but nobody came. That having no option the
plaintiff returned back to his home.
m. That again the plaintiff again came to the suit property on the very
next date i.e. 18/03/2011, that same laborers were working and again
the plaintiff was told to wait as the local contractor will be coming in
few hours. That again the plaintiff having no other option waited till
evening, but again no body appeared. That shockingly the laborers
and the staff working there were not even giving any telephone
numbers either of the defendants or any contractors.
n. That thereafter the plaintiff tried to gather information about the
defendants, but was not able to get any information qua the
defendants. The plaintiff having no other option prepared a police
complaint in respect to the said act of the defendants on
19/03/2011.That though the complaint was prepared, but on advice of
some friends the same was not filed and the plaintiff waited and tried
Signature Not Verified
Digitally Signed
By:SHALOO BATRA
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gathering information in respect to the defendants, but again the
plaintiff was not able to gather any information, that in the mean
while the work at the suit property was going on. That thereafter as
there was no information of
any of the defendants, the plaintiff finally filed the police
complaint on 01/04/2011. A copy of the complaint dated 01/04/2011 is
marked and annexed herewith as ANNEXURE P-7.
o. That the plaintiff kept on waiting that the local police will take some
action, but surprisingly no action was taken by the local police till
May 2011.That thereafter the plaintiff sought legal advice and the
complainant was informed that as the matter was not under the
purview of the police and the same is of civil nature the police will not
interfere and the plaintiff will have to withdraw the police complaint
to take appropriate action. That for the same reason the plaintiff
withdrew the police complaint to initiate appropriate remedy
p. That the plaintiff was constantly visiting the suit premises and in the
first week of June 2011 when the plaintiff
visited the premises a board had been erected at the said
premises by the name of M/s DASS TIMBER STORE, RZ
H 4 108 A Bengali Colony, Mahavir Enclave, New Delhi
110045 and nu besides which no other details were given. That a week
later when the plaintiff visited the suit property, name and mobile no
of defendant no.2 was mentioned. That the plaintiff immediately
telephonically contacted the defendant no.2 who told the plaintiff that
he is a supervisor and has been instructed by the defendant no.1
builder to look after the construction of the suit property. That the
plaintiff told the defendant no.2 that he is the owner of the property
and the said construction is illegal and asked the defendant no.2 to
show the papers of the said property, that rather showing his
willingness to show the papers the defendant no.2 told the plaintiff
that papers would only be shown if the plaintiff gives the defendant
no.2 Rs.10,00,000/-. That thereafter again the plaintiff contacted the
defendant no.2 to seek information about defendant no. 1, but
surprisingly no information was given in respect to defendant no.1.
That the construction was continuously being done at the suit property
and the plaintiff was continuously being harassed. That this was for
the first time the plaintiff got any information in respect to the
defendants. That thereafter when the plaintiff contacted the defendant
no.2 he gave the name and mobile number of the defendant no.3 as the
concerned person dealing with the selling and purchase of suit
property. That when defendant no.3 was contacted by the plaintiff he
told the plaintiff that he has been assigned to sell off the built up area
of suit property and if the plaintiff is interested he can purchase the
Signature Not Verified
Digitally Signed
By:SHALOO BATRA
02.06.2021 18:14:34
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same for an amount of Rs.20,00,000/-. That when the plaintiff asked
for papers the defendant no.3 replied that the same will be shown if
the plaintiff comes up with some money. That then the plaintiff told
him that he is the real owner and he will initiate action against the
defendants, to this defendant no.3 threatened that the defendants will
get the, plaintiff killed if he does or say anything as the defendants are
the land mafia of the said area and nobody can do anything against
them and threatened of dire consequences if the plaintiff ever comes to
suit property. That the plaintiff got scared and kept quiet for a month.
A copy of the recent photographs of the suit property are marked and
annexed herewith as ANNEXURE P-8(ColIy).
q. That thereafter in 2nd week of July the plaintiff again approached the
defendant no.2, to help out the plaintiff, and told the defendant that the
plaintiff is a retired brigadier from the armed forces and a senior
citizen and had purchased the said property investing all his savings,
that though the defendant no.2 agreed to help out the plaintiff in some
manner but the defendant no.2 kept on lingering the matter and did
not help out the plaintiff in any manner whatsoever.
r. That recently when in the first week of August when the plaintiff
approached the defendant no.2, the defendant no.2 bluntly said that
the defendant cannot in any manner
help out the plaintiff and also told the plaintiff to stay
away from the property as the defendants are the land
mafia in the area and has good contacts with police and
muscle men and the plaintiff being an old man should
stay away from the property and the plaintiffs
interference in any way by litigating or informing police
will just worsen the life of the plaintiff and the defendants
will be least affected."
3. The respondent no. 1 claimed the following reliefs in the Suit:-
"a) Pass a decree of Possession in favour of
the Plaintiff and against the Defendant,
thereby directing the defendant to, handover
the peaceful, actual and physical possession of
the suit property marked as 60' x 45' i.e. 300
Sq. yds. on the extreme western side
of a larger side measuring 1067sq. yds. in
Khasra No.27/5/2 i.e. one Bhiga and 1-1/3
biswas approx. in village Mirzapur (Palam),
Delhi presently known as property bearing No.
H4/108/E Mahavir Enclave, Part 1, New Delhi
Signature Not Verified
Digitally Signed
By:SHALOO BATRA
02.06.2021 18:14:34
RFA 1075/2019 & RFA 1083/2019 Page 7
110045. The suit property has been
specifically shown in Red and yellow colour in
the site plan attached with the plaint.
b) Pass a decree of the recovery of the
damages and illegal construction raised by the
defendants and further direct, the Defendants
to pay all the dues like electricity bill and
water bill as per his usages and maintenance
charges the date of handling over the
possession of the suit premises by the
Defendants to the Plaintiff.
d) Pass a decree of permanent injunction
against the defendant and in favour of the
plaintiff, agents, servants, attorneys,
associates, etc. from creating any third party
interest in the suit premises.
e) Pass a decree of permanent injunction
against the defendant and in favour of the
plaintiff, agents, servants, attorneys,
associates, etc. from carrying on any
construction in the suit property."
4. The above Suit was filed by the respondent no. 1 initially only
against Shri Madan Mohan Das (appellant no. 1), Mr. Arun Sharma
(respondent no. 3) and Mr. Bindoria (respondent no. 4). Later, Ms. Y.
Parvati Rao (respondent no. 2) and M/s Dass Properties and
Constructions Pvt. Ltd. (appellant no. 2) were impleaded in the Suit as
plaintiff no. 2 and defendant no. 4 respectively.
5. The appellant no. 1 (Sh. Madan Mohan Das) and respondent no.
3 (Mr. Arun Sharma) filed a joint written statement to the Suit
claiming that the appellant no. 1 had purchased the Suit Land from Sh.
Devender Kumar (respondent no. 3 in RFA 1083/2019) vide a
registered Sale Deed dated 04.02.2011. The said Sh. Devender Kumar
Signature Not Verified
Digitally Signed
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had earlier purchased the Suit Land vide a registered Sale Deed dated
26.11.2010 executed by Sh. Ambuj Srivastava (respondent no. 4 in
RFA 1083/2019) as a Power of Attorney holder of the erstwhile
owners, Sh. B.K. Garudachar and his wife Smt. B.G. Lakshmi, who
had executed the Power of Attorney dated 04.02.1991 in favour of Sh.
Ambuj Srivastava.
6. The respondent nos. 1 and 2 thereafter filed the second Suit,
being Civil Suit No.15859/2016, impleading M/s Dass Properties and
Constructions Pvt. Ltd. (appellant no. 2), Sh. Madan Mohan Das
(appellant no. 2 in RFA 1083/2019), Sh. Devender Kumar (respondent
no. 3 in RFA 1083/2019), Sh. Ambuj Srivastava (respondent no. 4 in
RFA 1083/2019) and Smt. B.G. Lakshmi (respondent no. 5 in RFA
1083/2019) as defendants to the Suit.
7. In the above-mentioned second Suit, the respondent no. 1 and 2
prayed for the following reliefs:-
"a) Pass an order canceling the sale deed
being, sale deed bearing certificate no. IN-
DL0420785045626I in respect of property
bearing no. KH.NO.27/5/2 Village Mirzapur
Colony known as Mahavir Enclave-I New
Delhi executed by defendant no.4 in the name
of defendant no.3 and
b) pass an order canceling the sale deed
bearing certificate no. INDL04615218610928J
in respect to property bearing no. H-4/108A
Mahavir Enclave, New Delhi executed by
Defendant no.3 in the name of defendant no.1
through Defendant No.2.
c) pass an order canceling the alleged general
power of attorney dated 04.02.1991 executed
Signature Not Verified
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by Late Sh. B.K. Garudachar & defendant no.5
in the name of defendant no.4."
8. In the said second Suit, the appellants filed their written
statement reiterating their claim of title to the Suit Land.
9. Written statement was also filed by Smt. B.G. Lakshmi stating
that her husband Sh. B.K. Garudachar had expired on 23.03.2010;
affirming the execution of the Agreement to Sell dated 19.07.1987 in
favour of the respondent nos. 1 and 2; affirming the receipt dated
19.07.1987 admitting the receipt of consideration of Rs.40,000/- from
the respondent nos. 1 and 2; affirming the execution of the General
Power of Attorney dated 05.08.1987 in favour of the respondent nos. 1
and 2; stating that the said Power of Attorney had not been revoked;
that no other General of Power Attorney registered/unregistered has
ever been executed by herself or by her late husband in the name of
any other person; and that she has no knowledge of any Sale Deeds in
favour of the appellant or Sh. Devender Kumar (respondent no.3 in
RFA 1083/2019) nor has any knowledge of any such persons. She
specifically denied execution of any General Power of Attorney dated
04.02.1991 in favour of Mr. Ambuj Srivastava.
10. At this stage, it is also relevant to note that the learned Trial
Court has observed that no written statement was filed by Sh.
Devender Kumar, defendant no.3 in the Suit. The learned senior
counsel for the appellants has submitted that this observation of the
learned Trial Court is incorrect inasmuch as Sh. Devender Kumar had
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filed a written statement to the second Suit, a certified copy of which
has been placed on record in the present appeals. In the said written
statement Sh. Devender Kumar, apart from objecting to the
maintainability of the Suit, had affirmed that he has purchased the Suit
Land from Sh. Ambuj Srivastava vide a registered Sale Deed for
consideration, with knowledge and the belief that Sh. Ambuj
Srivastava was authorized by the erstwhile owners of the Suit Land,
namely Smt. B.G. Lakshmi and her husband late Sh. B.K. Garudachar,
by way of a General Power of Attorney executed by them in favour of
Sh. Ambuj Srivastava to sell the Suit Land.
11. In CS (OS) No.15870/16, on 19.09.2011, an ex parte order of
injunction was passed in favour of the respondent nos. 1 and 2, which
was confirmed on 26.02.2014. However, the appellants claim to have
made major construction of a building on the Suit Land till that date.
12. On 26.02.2014, consolidating the two Suits for purposes of trial
and decision, the following issues were settled in both the Suits:-
i) Whether Mrs. B. G. Lakshmi and her
husband Mr. B. K. Garudachar had in
the year 1987 agreed to sell the suit
property to Brdg. Yellepeddy and his
daughter against receipt of entire sale
consideration and in part performance
of the said Agreement to Sell put the
said Brdg. Yellepeddy and his daughter
into possession of the property? OPP
ii) Whether the said Mrs. B. G. Lakshmi
and her husband Mr. B. K. Garudachar
had appointed Mr. Ambuj Srivastava as
their attorney and the said Mr. Ambuj
Srivastava under the said attorney was
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entitled to sell the said property of Mrs.
B. G. Lakshmi and her husband Mr. B.
K. Garudachar? OPD-1.
iii) If the above Issues are decided in
favour of the plaintiffs and against the
defendant No.1, whether the plaintiffs
are entitled to any mesne
profits/damages for use and occupation
and if so, at what rate and for what
period? OPP
iv) If the above issues is decided in favour
of the plaintiffs, whether the plaintiffs
are entitled to any interest on arrears
of mesne profits and if so, at what rate
and for what period? OPP.
v) Relief."
13. In paragraph 34 of the said order, the following
direction/clarification was also given by the High Court, where the
said Suits were pending adjudication at that stage before being
transferred to the District Court on account of increase in pecuniary
jurisdiction:-
"It is made clear that no issue on the relief
claimed in CS(OS)No. 499/2012 of
cancellation of documents is framed since, if
the defendant No.1 fails to prove power of
attorney in favour of Mr.Ambuj Srivastava, the
sale deed executed by Mr. Ambuj Srivastava in
favour of the defendant No. 3 and the sale
executed by the defendant No.3 in favour of the
defendant No.1 would axiomatically be
unauthorized and of no avail."
Signature Not Verified
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14. The respondent nos. 1 and 2 examined the respondent no. 1-
Brigadier Yellepeddy S. Rao (Retired) as PW-1 and Sh. Joginder
Singh, Kanungo, Office of SDM Dwarka, Najafgarh and Sh. Satish
Kumar Rawat, Tehsildar, SDM Office Complex, Tura Mandi,
Najafgarh, New Delhi, as PW-2 and PW-3 respectively.
15. The appellants examined the appellant no. 1- Sh. Madan Mohan
Das as DW-1.
16. Though an affidavit of evidence was filed by Smt. B.G.
Lakshmi, the same could not be tendered in evidence as the learned
Trial Court was informed that she being an old lady residing in
Bangalore, could not travel to Delhi. However, on an application filed
on her behalf, Sh. Manju Nath from the office of the Sub-Registrar,
Jaya Nagar, Bangalore was examined as D5W1.
17. None of the other defendants in the suits filed their affidavit of
evidence or entered into the witness box or led any other evidence.
18. Considering the evidence led by the parties and the submissions
made, the learned Trial Court by its Impugned Judgment and Decree
had decided the issue no. 1 in favour of the respondent nos. 1 and 2,
observing as under:-
"Finding:- Agreement of sale and receipt
dated 19.07.1987 and GPA dated 05.08.1987
have been proved as Ex.PW1/3, Ex.PWI/4 and
Ex. PW1/5 respectively whereas certified copy
of GPA obtained from the office of Sub-
Registrar, Bangalore in the year 2001 has
been proved as Ex. PW1/X. The suggestions
put to plaintiff by ld. counsel for defendants
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M/s Dass Properties and Construction Pvt.
Ltd. were emphatically denied by piaintiff
(PW-1) Brig. Yellepeddy S. Rao (Retd.) who
has also disputed the alleged undertaking
dated 03.12.2010 put to him during cross
examination as Mark PW1/D2. Defendant
No.5 Smt. B.G. Lakshmi having failed to enter
the witness box and depose in favour of
plaintiff has nonetheless examined official
witness Sh. Manju Nath (D5W1) who has
proved certified copy of GPA executed by Sh.
B. K. Garudachar and Smt. B. G. Lakshmi in
favour of Brig. Yellepeddy S. Rao (Retd.) as
Ex. D5W1/1 and has explained the
endorsements made by officials at points 'B1',
'C1', 'D1' and 'E1' and signature of Sub-
Registrar on the last page of the document
with remarks at point 'Z' after verifying the
contents and correction. Issue No.1 is
therefore decided in favour of plaintiff."
19. Issue no. 2 was also decided against the appellants, holding that
there was no evidence led on record to prove that Smt. B.G. Lakshmi
and her husband, late Sh. B.K. Garudachar had appointed Sh. Ambuj
Srivastava as their Attorney. Emphasis was laid by the learned Trial
Court on the fact that neither Sh. Devender Kumar nor Sh. Ambuj
Srivastava appeared as witnesses in the Suit nor were they summoned
or examined by the appellants to prove the alleged General Power of
Attorney dated 04.02.1991 stated to have been executed by Smt. B.G.
Lakshmi and her husband, late Sh. B.K. Garudachar, in favour of Sh.
Ambuj Srivastava.
20. As far as the issue no. 3 is concerned, the learned Trial Court
observed that while no evidence has been led by the respondent nos. 1
and 2 on record qua damages for any unauthorized use and occupation
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of the Suit Land, Brigadier Yellepeddy S. Rao (Retired) being a senior
citizen had suffered harassment after he was illegally dispossessed
from the suit property and was, therefore, entitled to damages assessed
at Rs.2,00,000/-.
21. The learned Trial Court has also awarded pendent lite interest at
the rate of 10% per annum with effect from 16.09.2011 till
27.07.2019, and future interest at the rate of 6% per annum till the date
of actual payment, in favour of the respondent nos. 1 and 2.
22. The following relief has been granted in favour of the
respondent nos. 1 and 2 by the Impugned Judgment and Decree:-
"49. RELIEF: Plaintiff's suit is therefore
decreed and defendant No.1 Sh. Madan Mohan
Dass and defendant No. 4 M/s Dass Properties
& Constructions Pvt. Ltd. are directed to
handover peaceful, actual and physical
possession of suit property after demolishing
the unauthorized construction raised by
defendants and pay a lump sum amount of
Rs.2,00,000/- as damages for mental
harassment and agony suffered by plaintiff for
nine long years along with pendente lite
interest @ 10% p.a. and future interest @ 6%
p.a. together with the cost of suit."
23. Aggrieved of the above Judgment and Decree, the appellants
have filed the present appeals.
24. The learned senior counsel for the appellants (who at the time of
hearing the arguments had not been designated) has submitted that the
respondent nos. 1 and 2 were not entitled to any relief in the Suit
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inasmuch as they could not claim ownership of the Suit Land based on
the alleged Agreement to Sell and the General Power of Attorney
alleged to have been executed by Smt. B.G. Lakshmi and her husband,
late Sh. B.K. Garudachar in their favour. In support of his submission,
he places reliance on the judgments of the Supreme Court in Suraj
Lamp & Industries Pvt. Ltd. Thr. Director vs. State of Haryana &
Anr., AIR 2012 SC 206; and of the Punjab and Haryana High Court in
Kuldeep Singh vs. Smt. Ram Pyari & Ors., 2016 SCC OnLine P&H
10515.
25. The learned senior counsel for the appellants further submits
that in any case, the execution of the Agreement to Sell and the
General Power of Attorney could only be proved by the executants of
the said documents, however, as the executants of the said documents
were not produced as witnesses, the said documents remained
unproved and could not have been relied upon by the learned Trial
Court. He submits, that in this manner, the respondent nos. 1 and 2
also failed to discharge the burden of proof placed on them in terms of
Section 101 and 102 of the Indian Evidence Act, 1872. In this regard
he places reliance on Narbada Devi Gupta vs. Birendra Kumar
Jaiswal & Anr., (2003) 8 SCC 745.
26. He further submits that even otherwise, the said documents
cannot be used by the respondent nos. 1 and 2 to claim possession
over the Suit Land. He submits that the Agreement to Sell was, even
as per the respondent nos. 1 and 2, executed at Bangalore. It does not
reflect in what manner the possession of the Suit Land was given to
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the respondent nos. 1 and 2. The receipt in fact, does not even name
the respondent nos. 1 and 2 as the persons paying the money to the
previous owners. As far as the General Power of Attorney is
concerned, it does not divest the erstwhile owners of their ownership
rights nor makes any reference to the alleged Agreement to Sell; it
does not even give a power to sell the Suit Land to the respondent nos.
1 and 2; in fact, the respondent nos. 1 and 2 are made to give accounts
to the owners for any action taken by them with respect to the Suit
Land. He further submits that the General Power of Attorney is not
even executed in favour of the respondent no. 2.
27. He submits that no effort was made by the respondent nos. 1
and 2 to produce Smt. B.G. Lakshmi as a witness. Her written
statement could not be treated as evidence by the learned Trial Court.
As Smt. B.G. Lakshmi neither examined herself as a witness nor was
summoned for the said purpose by the respondent nos. 1 and 2, an
adverse inference has to be drawn against the respondent nos. 1 and 2.
He places reliance on the judgments of the Supreme Court in
Vidhyadhar vs. Manikrao & Anr., AIR 1999 SC 1441; and of this
Court in Harbhajan Singh vs. Kuldeep Singh & Ors., 2016 SCC
OnLine (Del) 6513.
28. The learned senior counsel for the appellants has further
submitted that in the present case, a suit for cancellation of the Sale
Deed that has been executed in favour of the appellants could not have
been filed by the respondent nos.1 and 2 as the respondent nos.1 and 2
are not the executants thereof. He submits that under Section 31 of the
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Specific Relief Act, 1963, a suit for cancellation can be filed only by
the executants of the document. The remedy of the respondent nos.1
and 2, if any, would have been in a suit for declaration under Section
34 of the Specific Relief Act, 1963, which was not prayed by the
respondent nos.1 and 2. In absence of such declaration of title and
admittedly being without possession as on the date of filing of the
Suit, he submits that the suits were liable to be dismissed. In support
of his submission, he places reliance on the judgments of the Supreme
Court in Anathula Sudhakar vs. P. Buchi Reddy (Dead) By LRs. &
Ors., AIR 2008 SC 2033; Deccan Paper Mills Co. Ltd. vs. Regency
Mahavir Properties & Ors., 2020 SCC OnLine SC 655; Union of
India & Ors. vs. Vasavi Cooperative Housing Society Ltd. & Ors.,
(2014) 2 SCC 269; and Jagdish Prasad Patel (Dead) Thr. LRs. &
Anr. vs. Shivnath & Ors., (2019) 6 SCC 82.
29. The learned senior counsel for the appellants lastly submits that
the learned Trial Court has, while giving the benefit of Section 85 of
the Indian Evidence Act, 1872 to the respondent nos.1 and 2 with
respect to the General Power of Attorney dated 05.08.1987 allegedly
executed by Smt. B.G. Lakshmi and her husband, late Sh. B.K.
Garudachar, in favour of the respondent no.1, has refused to draw the
same presumption in favour of the General Power of Attorney dated
04.02.1991 executed by the same Smt. B.G. Lakshmi and her husband,
late Sh. B.K. Garudachar, in favour of Sh. Ambuj Srivastava, which
was also duly Notarized. He submits that the doubt created by the
respondent no.1 and 2 on the due notarization of the said General
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Power of Attorney cannot be sustained in absence of any cogent
evidence having been led by them in form of production of the Notary
Public, in the proceedings before the learned Trial Court.
30. On the other hand, the learned counsel for the respondent nos.1
and 2, refuting the submission of the appellants, submits that the
defendant no. 5, Smt. B.G. Lakshmi, in her Written Statement had
duly admitted the execution of the Agreement to Sell, receipt and the
General Power of Attorney in favour of the respondent nos.1 and 2.
She had also denied the execution of any Power of Attorney in favour
of any other person, much less Sh. Ambuj Srivastava. The onus of
proof of issue no.2, that is, of the execution of the Power of Attorney
in favour of Sh. Ambuj Srivastava was placed on the appellants,
however, no attempt was made by them for proving the same. He
submits that the appellants did not even make any attempt to prove the
due notarization of the alleged Power of Attorney in favour of Sh.
Ambuj Srivastava, therefore, the presumption under Section 85 of the
Indian Evidence Act, 1872, could not have been drawn in their favour.
31. Placing reliance on the judgment of the Supreme Court in Anil
Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558, he submits that the
burden of proving the power of attorney in favour of Sh. Ambuj
Srivastava was on the appellants, which they failed to discharge. As
far as the respondent nos.1 and 2 are concerned, they had duly proved
the documents in their favour which remained un-rebutted by the
appellants.
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32. As far as the reliance of the appellants on the judgment of the
Supreme Court in Suraj Lamp (supra), he submits that the said
judgment could not have any effect on the claim of respondent nos.1
and 2 inasmuch as the documents in favour of the appellants have
been executed prior to the said judgment, which has been held to be
prospective in nature. He places reliance on the decisions in Maya
Devi vs. Lalta Prasad, (2015) 5 SCC 588; Abdul Waqar & Anr. vs.
Abdul Gaffar, 2018 SCC OnLine (Del) 9467; Vimla Devi v. Pushpa
Devi & Anr., 2017 SCC OnLine (Del) 8694; Vikas Wadhwa vs.
Pardeep Kumar & Ors., 2018 SCC OnLine (Del) 13056; and
judgment dated 24.07.2017 passed in Ex.F.A.No.18/2017, titled Vinay
Gugnani vs. Panna Lal Rathore and Anr.
33. He further submits that in any case, in the present suits, the
question of title was not relevant as the respondent nos.1 and 2 have
been illegally dispossessed from the same. In this regard, he places
reliance on the following judgments:-
i) Suhrid Singh @ Sardool Singh vs. Randhir Singh &
Ors., (2010) 12 SCC 112;
ii) L.M. Walter (since deceased) through LRs. vs.
Sh.Onkar Giri (now deceased) through LRs & Ors.,
2016 SCC OnLine Del 5216;
iii) Smt.Gurmeet Kaur vs. Shri Harbhajan Singh and Anr,
2016 SCC OnLine Del 5575;
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iv) Jagmal (Deceased) Thr. LRs vs. MCD, 2008 SCC
OnLine Del 445; and
v) Sri Niwas Gupta vs. Surender Kumar, 2016 SCC
OnLine Del 5618.
34. He submits that as both the parties were alleging their
respective title to the Suit Land, the suit cannot be decided merely on
the basis of their claim to title. In this regard, he places reliance on the
judgment dated 09.11.2019 passed by the Supreme Court in M. Siddiq
(Dead) through LRs (Ram Janmabhumi Temple Case) v. Mahant
Suresh Das & Ors., (2020) 1 SCC 1.
35. I have considered the submissions made by the learned counsels
for the parties.
36. In Suraj Lamp (supra), the Supreme Court examined the
validity and legality of Sale Agreement/General Power of
Attorney/Will transactions to transfer title or create interest in an
immovable property, and concluded as under:-
"23. Therefore, a SA/GPA/will transaction
does not convey any title nor creates any
interest in an immovable property. The
observations by the Delhi High Court, in Asha
M. Jain v. Canara Bank : (2001) 94 DLT 841,
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
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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 TP 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
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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" have 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 favour 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
bona fide/genuine transactions."
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37. In Maya Devi (supra), the Supreme Court considered the effect
of the judgment of Suraj Lamp (supra) on a Power of Attorney
executed prior to the date of the said judgment in a genuine transaction
of sale and held that the observations of the Supreme Court in Suraj
Lamp (supra) are not intended to in any way affect the validity of sale
agreements and Powers of Attorney executed in genuine transactions
prior thereto. Justice Vikramajit Sen, in the concurring judgment,
further held that the judgment in Suraj Lamp (supra) was "pointedly
and poignantly prospective".
38. In Vimla Devi (supra), this Court has also held that documents
executed prior to 24.09.2001 in accordance with the then-existing
Section 53A of the Transfer of Property Act, 1882, which was
amended by the Act 48 of 2001 to require compulsory stamping and
registration of an agreement to sell, are valid documents.
39. In Abdul Waqar (supra), this Court again held that a sale by
GPA/Agreement to Sell/Will executed prior to the rendering of the
decision in Suraj Lamp (supra) is protected as a genuine transaction
executed prior thereto and not affected by the said judgment.
40. In the present case, the documents, that is the Agreement to Sell
dated 19.07.1987 and the registered General Power of Attorney dated
05.08.1987, have been executed by the admitted owners of the Suit
Land, Smt. B.G. Lakshmi and late Shri B.K. Garudachar, prior to the
judgment of the Supreme Court in Suraj Lamp (supra). Smt. B.G.
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Lakshmi, in her Written Statement filed to the second suit of the
respondent nos. 1 and 2, has not only admitted to the execution of the
said documents in favour of the respondent nos.1 and 2, but also to
their genuineness and as having divested her and her late husband of
any title to the Suit Land. The relevant extracts from her Written
Statement are as under:-
"That the defendant no.5 is an 80 years old
lady and a USA-Green Card Holder, presently
residing at in Qatar. That the defendant is
suffering from various ailments and is
planning to settle permanently in United States
of America with her children and grand
children. That the husband of the defendant
no. 5 had expired on 23rd March 2010. That
further without prejudice to her rights the
defendant no. 5 would like to submit that on
08th of June 1981 a sale deed was executed by
one Sh. Mohar Singh S/o Sh. Chander Singh,
R/o B-80, Ganesh Nagar, New Delhi-8, in
respect to 1067 Square Yards, i.e. one Bhiga
and 1-1/3 Biswas approx. in Khasra No.
27/5/2 out of the total agriculture land of 15
Bhigas and 10 Biswas at Mustatil No. 16 Killa
(4-9), 5/2 (3-12) and Mustatil No. 28, Killa No.
1(4-16), 10/2(2-8) situated at Village
Mirzapur, Delhi in favour of Defendant no.5
and her husband Late Sh. B.K. Garudachar,
for an amount of Rs.16,000/-. That out of the
said land, on 19/07/1987, an agreement of
sale, in respect to portion of land measuring
60'x45' i.e. 300 Square Yards on the extreme
western side of a larger side measuring 1067
Square Yards in Khasra No. 27/5/2 i.e. one
Bhiga and 1-1/3 Biswas approx. in village
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Mirzapur (Palam), Delhi presently known as
Mahavir Enclave, was entered between
Defendant no.5 and her deceased husband,
and the Plaintiffs. That the same was for a
monetary consideration of Rs. 40,000/-. The
said amount was paid by the plaintiffs and
received by the defendants and a receipt in
respect to the same was also issued by the
defendant no. 5 and her deceased husband.
That thereafter confirming the said agreement
of sale, a registered general power of attorney
bearing No.144/87.88 dated 05/08/1987 was
executed by defendant no.5 and Late Sh.B.K.
Garudachar in favour of the Plaintiffs in
respect to the suit property herein. That
neither was the above said registered general
power of attorney ever revoked, nor was any
other general power of attorney
registered/unregistered ever issued by the
defendant no.5 and her husband in the name of
the any other person. That the plaintiffs were
made the complete owners of the suit property
by the defendant no.5 and her husband. That
further the defendant no.5 is not a necessary
party to the present suit and the name of the
defendant no.5 ought to be deleted from the
array of parties as no relief has been sought
against the defendant no.5"
41. In view of the above stand of the admitted owner of the Suit
Land in her Written Statement, there was no necessity for the
respondent no. 1 and 2 to insist on her appearance as a witness in the
suit and equally, the appellants cannot challenge the right and title of
the respondent nos. 1 and 2 over the Suit Land, unless they are able to
show a better title thereto.
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42. In Vinay Gugnani (supra), this Court had held that even if no
title passed under the Agreement to Sell for the document not being
registered or a registered Sale Deed not having been executed, the
beneficiary of the Agreement to Sell, in such circumstances, would
undoubtedly have a right on behalf of the erstwhile owner to take
possession of the suit property and therefore, it cannot be said that
such person has no locus standi to file a suit for possession against a
trespasser.
43. The submission of the learned senior counsel for the appellants
that as Smt. B.G. Lakshmi had not appeared as a witness nor was she
summoned by the respondent nos. 1 and 2, her written statement
should be discarded, cannot be accepted. Smt. B.G. Lakshmi had
accepted the claim of the respondent nos. 1 and 2 in the Suit. She had,
in fact, denied the claim of the appellants. There was, therefore, no
dispute between the respondent nos. 1 and 2 and Smt. B.G. Lakshmi in
the Suit for which the respondent nos. 1 and 2 required the attendance
of Smt. B.G. Lakshmi as a witness insofar as their locus standi to file
the suits was concerned.
44. The same, however, does not hold good for the Written
Statement filed by Shri Devender Kumar. The Written Statement of
Shri Devender Kumar was adverse to the interest of the respondent no.
1 and 2 and therefore, could not have been relied upon without Shri
Devender Kumar entering into the witness box. The observation of the
learned Trial Court that the Written Statement of Shri Devender
Kumar was not on record, even if incorrect, would not make any
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difference to the outcome as the same even otherwise not worthy of
any reliance.
45. Equally, the submission of the learned senior counsel for the
appellants that the Agreement to Sell, Receipt and the General Power
of Attorney in favour of the respondent nos. 1 and 2 could not be
proved without examining the executants of these documents, is also
ill-founded. As noted above, Smt. B.G. Lakshmi in her Written
Statement has admitted the execution of these documents. It is not for
the appellants to challenge the documents. In Narbada Devi Gupta
(supra) on which reliance was placed by the learned senior counsel for
the appellants, the Supreme Court held that while the execution of the
document has to be proved by admissible evidence of those persons
who can vouchsafe for the truth of the facts in issue, the situation is
different where the documents are admitted by the opposite party,
signatures on them are also admitted and they are marked thereafter as
exhibits by the Court.
46. The submission of the learned senior counsel for the appellants
that the Agreement to Sell having been executed in Bangalore, the
respondents failed to prove how the possession of the land was handed
over to them at Delhi, deserves only to be stated as rejected. The Suit
Land had not been constructed upon. However, it has come in the
evidence of the respondent no. 1, as PW-1, that he got a boundary wall
constructed to protect the Suit Land. In any case, Smt. B.G. Lakshmi,
on whose ownership both the appellants and the respondent nos. 1 and
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2 make their claim, admitted to have handed over the possession of the
said land to the respondent nos. 1 and 2.
47. Other minor discrepancies in the receipt, in form of not
mentioning the name of the respondent nos. 1 and 2 from whom sale
consideration has been received, and/or the General Power of Attorney
not mentioning the Agreement to Sell, shall also be of no avail to the
appellants. These documents form one chain and are to be read
together as complementing each other and not in such hyper-technical
manner as the learned senior counsel for the appellants would like this
Court to read.
48. Coming to the own claim of the appellants, as noted above, the
Sale Deed in their favour admits the ownership of Suit Land in Smt.
B.G. Lakshmi and late Shri B.K. Garudachar. It is however, claimed
that the said Smt. B.G. Lakshmi and late Shri B.K. Garudachar had
executed a General Power of Attorney dated 04.02.1991 in favour of
Mr. Ambuj Srivastava on which basis Mr. Ambuj Srivastava
transferred the Suit Land to Mr. Devender Kumar, who in turn
transferred it to the appellants. Therefore, the alleged General Power
of Attorney dated 04.02.1991 was the foundation of the case of the
appellants. This was also highlighted in the order dated 26.02.2014
passed by this learned High Court, the relevant portion of which has
been reproduced herein above.
49. Smt. B.G. Lakshmi denied having executed the alleged GPA in
favour of Mr. Ambuj Srivastava. Though, Mr. Ambuj Srivastava and
Mr. Devender Kumar were parties to the suit, neither appeared as a
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witness. The fact that Mr. Devender Kumar filed his Written
Statement to the Suit can be of no avail to the appellants as his interest
was adverse to the respondent nos. 1 and 2 and without appearing as a
witness, his Written Statement was of no value.
50. The burden of proving the due execution of the alleged General
Power of Attorney dated 04.02.1991 was clearly on the appellants, not
only by the order dated 26.02.2014 framing the issues, but even under
Section 101 and 102 of the Indian Evidence Act, 1872. The appellants,
however, took no steps to prove the same. They made no effort to
summon Smt. B.G. Lakshmi, who had denied executing the said GPA,
or Mr. Ambuj Srivastava, or any of the alleged witnesses to the
alleged GPA, as witnesses in the Suit. The appellants had therefore,
clearly failed to discharge the burden placed on them to prove the
alleged GPA. In absence thereof, the whole foundation of the case of
the appellants vanishes and their case falls like a pack of cards.
51. At this stage, it is also relevant to note that apart from the
alleged GPA, no other document, such as an Agreement to Sell, Will
or Receipt allegedly executed by the said Smt. B.G. Lakshmi and late
Shri B.K. Garudachar in favour of Mr. Ambuj Srivastava, was placed
on record by the appellants. Shri Madan Mohan Dass (DW-1) in his
cross-examination recorded on 19.03.2018 stated as under:-
"I do not know if Ambuj Srivastava was
relative or family friend or otherwise known
friend of Mr. B K Garudachar and Smt. B.G.
Lakshmi or not. Ambuj Srivastava was in
possession of agreement of sale, receipt of
consideration for the sale of suit property to
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him by Sh.B K Garudachar and Smt. B G
Lakshmi. I am in possession of the said
documents. However, I do not know if the same
have been filed in the present case or not. I do
not remember the date of the said documents. I
cannot tell if the said documents are prior to
or of the same date that of power of attorney
dated 04.02.1991. It is wrong to suggest that I
am making a false statement about the
existence of the said documents. It is wrong to
suggest that neither Mr. B K Garudachar nor
Smt. B G Lakshmi ever executed any
agreement to sale or receipt in favour of Sh.
Ambuj Srivastava.
I cannot tell the amount of consideration
for which Ambuj Srivastava entered into
agreement with Sh. B K Garudachar and Smt.
B G Lakshmi for the purchase of the suit
property. I cannot tell if I am in possession of
any other document executed by Sh. B K
Garudachar and Smt. B G Lakshmi in favour
of Sh. Ambuj Srivastava without looking to my
records."
52. Reliance of the learned senior counsel for the appellants on
Section 85 of the Indian Evidence Act, 1872, is also ill-founded. The
appellants made no effort to prove the due Notarisation of the alleged
GPA either. Though not very relevant, the respondent nos. 1 and 2 had
confronted the appellant, Sh. Madan Mohan Dass (DW-1) in his cross
examination with the reply received by them under the Right to
Information Act, 2005, showing that no such Notary or Stamp Vendor
named on the alleged GPA exists. Inspite of the same, the appellants
made no effort to prove the due notarisation of the alleged GPA. The
relevant extracts from the cross examination of Sh. Madan Mohan
Dass (DW-1) recorded on 19.03.2018 is as under:-
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"I have not tried to check if Mukesh
Kumar is stamp agent or having his licence no.
250 and having seat at Kashmiri Gate or not
which details are mentioned on rear portion of
stamp paper of the denomination of Rs. 10/- on
which GPA has been shown to have been
executed. I have also not tried to contract
Mahavir Singh if he is notary public or not and
where he sits since his rubber stamp is affixed
on the said GPA as well as I have also not
tried to contact him to show as he has attested
the said GPA or not on 04.02.1991. It is
wrong to suggest that the said GPA Ex.DW1/4
is forged and fabricated. It is wrong to suggest
that there is no Mukesh Kumar, stamp agent
having his licence no. 250 at Kashmiri Gate,
Delhi.
I cannot say if the licence no. 250 has
been issued in the name of HS Kohli, a stamp
vendor by the Revenue Department (HQ),
Govt. of NCT of Delhi and said stamp vendor
is having his vending place at Raghubir
Nagar, District West, Delhi and the said
licence was issued on 16.07.1985. The letter
issued by Sh. PR Kaushik, SDM (HQ-1)/COS
affirming the aforesaid facts is Ex.DW1/PX3."
53. The submission of the learned senior counsel for the appellants
that in absence of Smt. B.G. Lakshmi entering the witness box, her
denial of execution of the GPA in favour of Mr. Ambuj Srivastava
could not be accepted and that an adverse inference was to be drawn
against her, also cannot be accepted. It was the case of the appellants
that Smt. B.G. Lakshmi had executed the said GPA in favour of Mr.
Ambuj Srivastava, who was also a party to the Suit. Mr. Ambuj
Srivastava never entered the witness box, in fact, he did not even file
his written statement to the Suit. Therefore, adverse inference had to
be drawn against Mr. Ambuj Srivastava.
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54. The reliance of the appellants on the judgments in Vidhyadhar
(supra) and Harbhajan Singh (supra) also cannot come to the avail of
the appellants.
55. In Vidhyadhar (supra), the defendant no. 1 therein had admitted
the execution of the sale deed in favour of the plaintiff but had
claimed the same to be fictitious and as a bogus transaction. As
defendant no. 1 did not enter the witness box, the Supreme Court held
that a presumption would arise that the case set up by him is not
correct.
56. In Harbhajan Singh (supra) again, the plea taken by the
plaintiff therein was that the Sale Deed therein had been executed in a
fraudulent manner. However, the plaintiff therein never entered the
witness box. The Court, therefore, held that a presumption shall arise
that the case set up by him was not correct.
57. In the present case, however, the very execution of the GPA had
been denied by Smt. B.G. Lakshmi. It was for the appellants, who
were relying upon the said GPA, to prove the due execution of the said
GPA by Smt. B.G. Lakshmi and late Shri B.K. Garudachar. The initial
onus to prove the same was on the appellants. The appellants,
however, miserably failed to discharge the same. The outcome would
have been different, had the appellants discharged the burden of proof
placed on them and thereafter, had Smt. B.G. Lakshmi not entered the
witness box, in which case an adverse presumption would perhaps be
drawn against Smt. B.G. Lakshmi and consequently, against the
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respondent nos. 1 and 2. However, this situation never came about as
the onus never shifted.
58. From the above, it is concluded that while the respondent nos. 1
and 2 were able to prove their interest, if not title, to the Suit Land, the
appellants failed to do so. The finding of the learned Trial Court in this
regard, therefore, cannot be faulted.
59. The submission of the learned senior counsel for the appellants
that the respondent nos. 1 and 2 were not entitled to the grant of
possession of the Suit Land only for the weakness of the case set up by
the defendants, though sounds attractive, however, is not germane to
the facts of the present case. As held above, the respondent nos. 1 and
2 had proved their interest in the Suit Land and their entitlement to the
possession thereof. Therefore, it is not just the failure of the appellants
to prove their case that haunts the appellants or has helped the
respondent nos. 1 and 2 to seek possession of the Suit Land.
60. The judgment of the Supreme Court in Vasavi Cooperative
Housing Society Ltd. (supra) and in Jagdish Prasad Patel (supra),
therefore, cannot come to the aid of the appellants.
61. In M. Siddiq (supra), the Supreme Court examined the import
of Section 110 of the Indian Evidence Act and has held as under:-
1193. Section 110 of the Evidence Act, 1872 provides thus:
"110. Burden of proof as to ownership.-- When the question
is whether any person is owner of anything of which he is
shown to be in possession, the burden of proving that he is
not the owner is on the person who affirms that he is not the
owner."
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Section 110 deals with the burden of proof. Where the provision
applies, the burden of proving that another person who is in
possession is not the owner lies on the person who affirms against
the ownership of that other person. But, for Section 110 to be
attracted, there must be a question as to whether any person is the
owner of anything and the ownership claimed must be that of which
he is shown to be in possession. Section 110 is based on the
principle that title follows possession. That is why the provision
postulates that where a person is shown to be in possession, and a
question arises as to whether that person is the owner, the law
casts the burden of disproving ownership on the individual who
affirms that the person in possession is not the owner.
1194. Several decisions of this Court have interpreted the
provisions of Section 110. Section 110 is based on the principle
that possession in and of itself may raise a presumption of title. But
this applies when the facts disclose no title in either of the
disputants in which case, as it is said, possession alone decides.
Hence, on the other hand, it is also well settled that the
presumption cannot arise when the facts are known.
1195. In Nair Service Society Ltd. v. K.C. Alexander [AIR 1968
SC 1165] , M. Hidayatullah, J. (as the learned Chief Justice then
was) speaking for a three-Judge Bench of this Court held : (AIR p.
1173, para 15)
"15. ... That possession may prima facie raise a presumption
of title no one can deny but this presumption can hardly arise
when the facts are known. When the facts disclose no title in
either party, possession alone decides."
1196. In M.S. Jagadambal v. Southern Indian Education
Trust [1988 Supp SCC 144] , K. Jagannatha Shetty, J. speaking for
a two-Judge Bench of this Court held that possession continues
with the title-holder unless and until the defendant acquires title by
adverse possession : (SCC p. 151, para 18)
"18. ... The possession continues with the title-holder unless
and until the defendant acquires title by adverse possession.
There would be no continuance of adverse possession when
the land remains submerged and when it is put out of use and
enjoyment. In such a case the party having title could claim
constructive possession provided the title had not been
extinguished by adverse possession before the last
submergence. There is no difference in principle between
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seasonal submersion and one which continues for a length of
time."
1197. In Chief Conservator of Forests, State of
A.P. v. Collector [(2003) 3 SCC 472] , Syed Shah Mohammed
Quadri, J. speaking for a two-Judge Bench of this Court held :
(SCC p. 484, para 20)
"20. ... presumption, which is rebuttable, is attracted when
the possession is prima facie lawful and when the contesting
party has no title."
1198. In State of A.P. v. Star Bone Mill and Fertiliser Co. [(2013)
9 SCC 319 : (2013) 4 SCC (Civ) 444] , this Court held that the
object of Section 110 is based on public policy. The object is to
prevent persons from committing a breach of peace by taking the
law into their own hands however good their title may be over the
land in question. This object underlies provisions such as Section 6
of the Specific Relief Act, 1963, Section 145 of the Code of
Criminal Procedure, 1973 and Sections 154 and 158 of the Penal
Code, 1860. B.S. Chauhan, J. speaking for a two-Judge Bench of
this Court explained in the above decision that : (SCC pp. 326-27,
para 21)
"21. ... The said presumption is read under Section 114 of
the Evidence Act, and applies only in a case where there is
either no proof, or very little proof of ownership on either
side. The maxim "possession follows title" is applicable in
cases where proof of actual possession cannot reasonably be
expected, for instance, in the case of wastelands, or where
nothing is known about possession one way or
another. Presumption of title as a result of possession, can
arise only where facts disclose that no title vests in any party.
Possession of the plaintiff is not prima facie wrongful, and
title of the plaintiff is not proved. It certainly does not mean
that because a man has title over some land, he is necessarily
in possession of it. It in fact means, that if at any time a man
with title was in possession of the said property, the law
allows the presumption that such possession was in
continuation of the title vested in him. A person must
establish that he has continued possession of the suit
property, while the other side claiming title, must make out a
case of trespass/encroachment, etc. Where the apparent title
is with the plaintiffs, it is incumbent upon the defendant, that
in order to displace this claim of apparent title and to
establish beneficial title in himself, he must establish by way
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of satisfactory evidence, circumstances that favour his
version. Even a revenue record is not a document of title. It
merely raises a presumption in regard to possession.
Presumption of possession and/or continuity thereof, both
forward and backward, can also be raised under Section 110
of the Evidence Act."
(emphasis supplied)
62. Applying the above test, while it was established that the
respondent no. 1 and 2 had interest in the Suit Land, the appellants,
apart from claiming to be in possession of the Suit Land, could not
even remotely prove any interest therein. The respondent no. 1 and 2
therefore, were able to rebut the presumption under Section 110 of the
Indian Evidence Act and were entitled to the possession of the Suit
Land.
63. The submission of the learned senior counsel for the appellants
that in absence of a relief of declaration of title, the respondent nos. 1
and 2 were not entitled to the relief of possession, also cannot be
accepted.
64. As held herein above, the respondent nos. 1 and 2 had been able
to establish their interest, if not title, to the Suit Land, while the
appellants failed to prove their interest or title to the same, except that
they were in possession of the same on the date of filing of the Suits.
65. In Anathula Sudhakar (supra), the Supreme Court held that a
prayer for declaration will be necessary only if the denial of title by
the defendant or challenge to plaintiff's title raises a cloud on the title
of plaintiff to the property. However, where the plaintiff has clear title
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supported by documents, if a trespasser without any claim to title or an
interloper without any apparent title, merely denied the plaintiff's title,
it does not amount to raising a cloud over the title of the plaintiff and
it will not be necessary for the plaintiff to sue for declaration. The
Supreme Court summarized the position in law as under:-
"21. To summarize, the position in regard to
suits for prohibitory injunction relating to
immovable property, is as under :
(a) Where a cloud is raised over the plaintiff's
title and he does not have possession, a suit for
declaration and possession, with or without a
consequential injunction, is the remedy. Where
the plaintiff's title is not in dispute or under a
cloud, but he is out of possession, he has to sue
for possession with a consequential injunction.
Where there is merely an interference with the
plaintiff's lawful possession or threat of
dispossession, it is sufficient to sue for an
injunction simpliciter.
(b) As a suit for injunction simpliciter is
concerned only with possession, normally the
issue of title will not be directly and
substantially in issue. The prayer for
injunction will be decided with reference to the
finding on possession. But in cases where de
jure possession has to be established on the
basis of title to the property, as in the case of
vacant sites, the issue of title may directly and
substantially arise for consideration, as
without a finding thereon, it will not be
possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in
a suit for injunction, unless there are
necessary pleadings and appropriate issue
regarding title (either specific, or implied as
noticed in Annaimuthu Thevar (2005) 6 SCC
202). Where the averments regarding title are
absent in a plaint and where there is no issue
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relating to title, the court will not investigate
or examine or render a finding on a question
of title, in a suit for injunction. Even where
there are necessary pleadings and issue, if the
matter involves complicated questions of fact
and law relating to title, the court will relegate
the parties to the remedy by way of
comprehensive suit for declaration of title,
instead of deciding the issue in a suit for mere
injunction.
(d) Where there are necessary pleadings
regarding title, and appropriate issue relating
to title on which parties lead evidence, if the
matter involved is simple and straightforward,
the court may decide upon the issue regarding
title, even in a suit for injunction. But such
cases, are the exception to the normal rule that
question of title will not be decided in suits for
injunction. But persons having clear title and
possession suing for injunction, should not be
driven to the costlier and more cumbersome
remedy of a suit for declaration, merely
because some meddler vexatiously or
wrongfully makes a claim or tries to encroach
upon his property. The court should use its
discretion carefully to identify cases where it
will enquire into title and cases where it will
refer to the plaintiff to a more comprehensive
declaratory suit, depending upon the facts of
the case."
66. In Vikas Wadhwa (supra), this Court reiterated that:-
"11. The trial court has also erred in placing
reliance upon the judgment of the Hon‟ble
Supreme Court in the case of Anathula
Sudhakar (supra) because this judgment only
applies if the parties are not aware that there
is an issue which is required to be decided of
title to a property. Once title of a property is
very much in issue, the relief of declaration is
always implicit, and it is not necessary to
separately pray for a specific relief of
declaration."
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67. A reading of the above would show that where there are
pleadings with respect to title and the parties have gone ahead and led
evidence on the same, the Court, even in a case of possession, can
record a finding on the title. In the present case, the question of title
was not only specifically pleaded but was also made a specific matter
of dispute through the second Suit. The issues were framed
accordingly and the parties led evidence on the same. Therefore, no
fault can be found on the learned Trial Court proceeding to examine
the respective claim of title to the Suit Land by the appellants and
respondent nos. 1 and 2.
68. The submission of the learned senior counsel for the appellants,
relying upon the judgment of the Supreme Court in Deccan Paper
Mills Co. Ltd. (supra), to the effect that the second Suit seeking
cancellation of the Sale Deeds in favour of Mr. Devender Kumar and
the appellants was not maintainable as such suit can be filed only by
the executant of the document, again does not hold much weight.
69. In Deccan Paper Mills Co. Ltd. (supra), the Supreme Court was
considering if an action under Section 31 of the Specific Relief Act,
1963, can be said to be in rem and therefore, not arbitrable in nature.
In considering the said question, the Supreme Court observed that
when it comes to cancellation of a deed by an executant to the
document, such person can approach the Court under Section 31 of the
Specific Relief Act, but when it comes to cancellation of a deed by a
non-executant, the non-executant must approach the Court under
Section 34 of the Specific Relief Act, 1963.
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70. The above distinction, as highlighted by the Supreme Court in
Suhrid Singh @ Sardool Singh (supra), in a Suit is relevant only for
the purpose of determining the court fee payable on the suit. The
relevant extract from the judgment is as under:-
"6. Where the executant of a deed wants it to
be annulled, he has to seek cancellation of the
deed. But if a non-executant seeks annulment
of a deed, he has to seek a declaration that the
deed is invalid, or non-est, or illegal or that it
is not binding on him. The difference between
a prayer for cancellation and declaration in
regard to a deed of transfer/conveyance, can
be brought out by the following illustration
relating to A and B, two brothers. A executes a
sale deed in favour of C. Subsequently A wants
to avoid the sale. A has to sue for cancellation
of the deed. On the other hand, if B, who is not
the executant of the deed, wants to avoid it, he
has to sue for a declaration that the deed
executed by A is invalid/void and non est/
illegal and he is not bound by it. In essence
both may be suing to have the deed set aside or
declared as non-binding. But the form is
different and court fee is also different. If A,
the executant of the deed, seeks cancellation of
the deed, he has to pay ad valorem court fee
on the consideration stated in the sale deed. If
B, who is a non-executant, is in possession and
sues for a declaration that the deed is null or
void and does not bind him or his share, he
has to merely pay a fixed court fee of Rs.
19.50 under Article 17(iii) of the Second
Schedule of the Act. But if B, a non- executant,
is not in possession, and he seeks not only a
declaration that the sale deed is invalid, but
also the consequential relief of possession, he
has to pay an ad valorem court fee as provided
under Section 7(iv)(c) of the Act. Section
7(iv)(c) provides that in suits for a declaratory
decree with consequential relief, the court fee
shall be computed according to the amount at
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which the relief sought is valued in the plaint.
The proviso thereto makes it clear that where
the suit for declaratory decree with
consequential relief is with reference to any
property, such valuation shall not be less than
the value of the property calculated in the
manner provided for by clause (v) of Section
7."
71. In the present case, it is not denied by the appellants that the
respondent nos. 1 and 2 have affixed the requisite court fee on their
second Suit even treating the Suit to be for seeking a declaration. The
parties also appreciated the nature of the suit filed by the respondent
nos. 1 and 2 and accordingly, the issues were settled and the parties
led their evidence. The nomenclature of the Suit as one of cancellation
of the documents therefore, lost all its significance and in any case, no
prejudice was caused or has even been alleged to be caused to the
appellants by the same. Such a hyper-technical objection of the
appellants, therefore, cannot be sustained and is rejected.
72. The submission of the learned senior counsel for the appellants
that there was no issue framed on whether the respondent nos. 1 and 2
were entitled to the possession of the Suit Land, is also stated to be
rejected. Issue no. (iii) pertained to whether the respondent nos. 1 and
2 were entitled to mesne profits/damages for use and occupation
charges from the appellants. Issue no. (v) was for the final relief that
the respondent nos. 1 and 2 were entitled to in the suits. The relief of
possession was therefore, implicit in these issues.
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73. In view of the above, I find no merit in the present appeals. The
same are dismissed. The appellants shall pay consolidated costs of Rs.
Two Lakhs to the respondent nos. 1 and 2 for the present appeals.
NAVIN CHAWLA, J
JUNE 01, 2021/rv/vp
A/US.
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