Shri O.P. Kohli vs Shri Krishan Kumar Gaur

J.M. Malik, J.—The parties have locked horns over the question whether the appellant/plaintiff has any cause of action against the

respondent. The learned Trial Court decided the case against the appellant and dismissed the plaint. The first Appellate Court affirmed the order of

the learned Trial Court. The facts of the appellant''s case emanating from the record are these. The respondent/defendant Krishan Kumar Gaur

entered into an agreement to sell his house bearing No.100-A/2, Gautam Nagar, New Delhi with one Gurbachan Singh on 14.05.1984. The key

controversy swirls around Clause 6 of the said agreement which runs as follows :

In case the existing passage to the aforesaid plot sold to second party in which a house has been constructed by the second party is not permitted

by the Delhi Administration/DDA within a period of fifteen years from this day, the first party shall provide a 6 feet passage from his own plot for

the entries to the house of the second party, in case, however, the existing passage is not closed the second party will not open any window/door

in the front party''s property.

The present appellant purchased the above said house on payment of sale consideration of Rs.2,30,000/- from the above said Gurbachan Singh

vide agreement to sell and purchase dated 03.04.1986. It is stated that the appellant has stepped into the shoes of Gurbachan Singh as per the

above said agreement. The passage in question was not permitted till the filing of the suit. The parties were required to wait till May, 1999 as per

above said Clause 6. However, in between, during the last week of August, 1986 the respondent started constructing a puce wall leaving a space

of 3 feet wide and 11 feet long in front of the window of the bed room and bath room of the appellant''s house, and thereby, committed flagrant

violation of the terms and conditions of the above said Clause 6. It also transpired that the respondent is going to sell the aforesaid vacant plot to

somebody without giving 6 feet passage to the appellant. The respondent also threatened to damage the water pipe line and sewer of the appellant

which was situated at a distance of about 4 feet from the wall of the house of the appellant and situated in the vacant portion of the plot of the

respondent. Under these circumstances, the present suit for mandatory injunction was filed against the respondent on 29.09.1986.

The Trial Court came to the conclusion that due to above said Clause 6, the contract in question is contingent. The appellant conceded before

the Court that the passage had not yet been closed by D.D.A nor there was any notice or any intention of the D.D.A. to close the passage by

1999. The learned Court held that the suit filed by the appellant is pre-mature and the appellant did not have any right for grant of ad-interim

injunction. Reliance was placed on a case decided by this Court in Jiwan Das v. Narain Das etc. 1981 RLR 596, wherein it was held : -

Adverting, Therefore, to the merits of the controversy, it may at the outset be taken note that unlike the law in England where an agreement of sale

creates an equitable estate in the purchaser, the law in India does not recognise any such estate. Section 54 of the Transfer of Property Act in

specific terms provides that a contract for sale does not, of itself, create any interest in or charge on such property. Such contract is merely a

document creating a right to obtain another document in the form of sale deed to be registered in accordance with law. In other words, a contract

for sale is a right created in personam and not in estate. No privity in estate can be deduced there from which can bind estate, as is the position in

cases of mortgage, charge or lease. Of course, such personal right created against the vendor to obtain specific performance can ultimately bind

any subsequent transferee who obtains transfer of the property with notice of the agreement of sale.

Till, Therefore, a decree for specific performance is obtained, the vendor or a purchaser from him is entitled to full enjoyment of the property. In

fact, even if a decree for specific performance of contract is obtained, and no sale-deed is actually executed, it cannot be said that any interest in

the property has passed.

The trial court also relied upon judgment reported in Krishnamoorthy Koundar Vs. Paramasiva Koundar, , wherein it was observed that

prospective vendee in possession of the property does not get any right in the same, unless the same is completed.

I have heard the learned Counsel for the parties. The learned Counsel for the respondent heavily relied upon the judgments passed by the Trial

Court and the first Appellate Court. In addition, he has also cited one authority reported in Bai Dosabai Vs. Mathurdas Govinddas and Others, ,

wherein it was held : -

It is clear from the ultimate para of Section 54 and the ultimate and penultimate paras of Section 40 of the T.P. Act that a contract for the sale of

Immovable property though does not, of itself create any interest in or charge on such property creates an obligation annexed to the ownership of

Immovable property, not amounting to an interest in the property, but which obligation may be enforced against a transferee with notice of the

contract or a gratuitous transferee of the property. Thus, the Equitable ownership in property recognised by Equity in England is translated into

Indian law as an obligation annexed to the ownership of property, not amounting to an interest in the property, but an obligation which may be

enforced against a transferee with notice or a gratuitous transferee.

Learned counsel for the respondent reiterated that no cause of action has arisen in favor of the plaintiff/appellant.

For the following reasons, I clap no significance to all these arguments. In Asha M. Jain Vs. The Canara Bank and Others, , it was held :

The power of attorney sales and their effect has been considered in Kuldip Singh v. Surinder Singh 76 (1998) DLT 236 : 1999 RLR 20 . The

learned Single Judge of this Court has observed that power of attorney sales in Delhi is the common mode of sale of immovable property to get

over the legislative restrictions of transfer of properties. The power of attorney is for consideration and the bargain is followed by delivery of

possession to complete the transaction. Further to prevent arbitrary cancellation, Will and affidavit about renouncing rights are taken. The Court

repelled the contention that since sub-lease with the Government prohibited transfer, such transfer was opposed to public policy, since in the view

of the Court, public policy gets modified with march of time. The Court recognised the fact that restrictions to sell made everyone dishonest and

the power of attorney sale method was devised to get over the restrictions. In fact the Government has partially recognised this since even power

of attorney buyers can apply for conversion into free hold on paying penalty. The learned Single Judge relied upon the judgment of the Supreme

Court in S. Chattanatha Karayalar Vs. The Central Bank of India and Others, and Indira Kaur and Ors Vs. Sheo Lal Kapoor, where it was held

that in order to arrive at a real nature of transaction, it is open to the Court to look into the attendant and surrounding circumstances and

contemporary documents. The learned Single Judge also relied upon the observations in the case of Usha Malhotra v. G.S. Uppal in 1991 RLR

223, dealing with the issue of construction agreement which are camouflage for agreement to sell.

We have considered this aspect taking into consideration these judgments and we are in agreement with the view that the concept of power of

attorney sales have been recognised as a mode of transaction. These transactions are different from mere agreement to sell since such transactions

are accompanied with other documents including General Power of Attorney, Special Power of Attorney and Will and affidavits and full

consideration is paid. This is what also has happened in the present case. There are two General Power of Attorneys, Special Power of Attorney

and the Will apart from the agreement to sell. One of the General Power of Attorney is registered. Further the Will is also registered. Thus, there

are two contemporaneous documents which are registered and they lend authenticity to the date of execution of documents. The power of

attorneys are for consideration within the meaning of Section 202 of the Contract Act, 1872. Thus there is no doubt that interest has been created

in the property in favor of the appellant. Possession is also been handed over. Thus the provisions of Section 53A of the Transfer of Property Act

would also come into play. The Bank is debarred from enforcing any right qua the property other than the right conferred by the agreement to sell.

The agreement to sell has nowhere reserved any right on the transferor either for resuming the property or payment of any additional money. The

transferor is debarred from claiming back the property from the appellant. The net result of all this is that the rights have been created in favor of

the appellant which cannot be defeated by the attachment order.

It may also be mentioned here that during the pendency of this appeal, the appellant has moved an application for amendment of his plaint. He

has also placed before this Court, copy of the Master Plan prepared by D.D.A. with the heading ""Prospective Planning Wing, Unauthorized

Colony Division"". According to the application and as shown in the said site plan, the land in question where the passage is to be made is allocated

to A.I.I.M.S. for residential purposes. Although, no action has been taken till now, yet, it is crystal clear that sword of Damocles will stand hanging

on the head of the appellant. If he is not heard at this stage, the purpose of the entire Clause 6 shall stand defeated.

The Court is bound to take a down to earth view. The Court has to be practical in confronting reality. The paramount duty of the Court is to

impart justice, justice is not to be done in abstract only. Justice is to be motivated with a desire to pull the public''s chestnuts out of fire. Justice is

the constant desire and effort to render to everyman his due.

Consequently, I set aside the orders passed by both the Courts below. The case stands remanded. The same should be heard on merits and all

the issues be decided. The application moved by the appellant for the amendment of plaint be considered and decided as per law. Nothing said

above shall tantamount to the expression of the opinion of this Court. The parties are directed to appear before the Trial Court on 15.02.2007.

This is a pretty old case. The Trial Court must decide before the expiry of one year. The Trial Court may fix the case on day to day basis, if it is so

possible. There shall be no order as to costs.

The trial court record and first Appellate Court record be sent back along with the copy of this judgment.