Suresh Kumar vs Kishan Gupta

VALMIKI J. MEHTA, J (ORAL)

This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the Judgment

of the Trial Court dated 27.07.2017 by which the trial court has decreed the suit for possession and mesne profits filed by the respondent/plaintiff.

The facts of the case are that the respondent/plaintiff pleaded that he purchased the suit property from Sh. Yad Ram in terms of a registered

Agreement to Sell and Purchase dated 16.04.2009. Respondent/Plaintiff paid a sum of Rs.2,15,000/- in cash to the seller Sh. Yad Ram. The suit

property is the DDA Flat bearing No.A-73-A, Ground Floor, Janta Flat, Raghubir Nagar, New Delhi. The respondent/plaintiff pleaded that on the date

of entering into the registered Agreement to Sell dated 16.04.2009 with the seller Sh. Yad Ram, the appellant/defendant was in illegal possession of

the suit property, as the permissive licence granted by Sh. Yad Ram to the appellant/defendant to stay in the suit property already stood withdrawn by

Sh. Yad Ram. Since the appellant/defendant failed to vacate the suit property, hence the respondent/plaintiff after serving the Legal Notice dated

19.03.2011, filed the subject suit for possession and mesne profits.

The appellant/defendant contested the suit and pleaded that he was in fact a tenant in the property inducted by the original owner Sh. Yad Ram. It

was pleaded by the appellant/defendant that Sh. Yad Ram had first entered into an agreement with him on 01.05.2004 whereby Sh. Yad Ram had

received a sum of Rs. 3 lacs from the appellant/defendant so that the appellant/defendant could stay in the suit property without paying any rent. It

was then further pleaded by the appellant/defendant that on 17.03.2009, Sh. Yad Ram contacted the appellant/defendant alongwith the

respondent/plaintiff and one Mr. Mukesh Sharma and at that time Sh. Yad Ram agreed to transfer the ownership rights of the suit property in favour

of the appellant/defendant for a total sale consideration of Rs.5,30,000/-, and therefore an Agreement to Sell was executed in favour of the

appellant/defendant on 27.03.2009. It was also pleaded that as per the Agreement to Sell dated 27.03.2009 a sum of Rs.50,000/- was paid by the

appellant/defendant to Sh. Yad Ram, and the balance sale consideration of Rs.4,80,000/- was given with the amount of Rs.50,000/- being paid in cash

and the sum of Rs.4,80,000/- being paid by bank draft. It was pleaded that however, Sh. Yad Ram failed to reach the office of the Sub-Registrar on

20.04.2009, where the respondent/plaintiff was present as a Mediator. Accordingly, the suit was prayed to be dismissed.

After pleadings were complete, trial court framed the issues and parties led evidence. These aspects are recorded in paras 7 to 14 of the impugned

judgment and these paras read as under:-

“Issues

After  completion  of  the  pleadings  and  from  material  on  record, following issues were framed by my Ld. predecessor on

08.01.2013 :-

Issue  no.  1:  Whether  the  suit  is  bad  for  non-joinder  of  the necessary parties, as prayed in preliminary objection no. 3. If so,

its effect? OPD

Issue no. 2: Whether the suit has not been valued properly for the purposes of court fees and jurisdiction? OPD

Issue  no.  3:  Whether  the  plaintiff  is  entitled  for  recovery  of possession of the suit property being the owner of the same?

OPP

Issue no. Â 4: Whether the plaintiff is entitled to the decree of mesne profit at the rate of Rs. 4,000/- per month from the date of filing of the present

suit? OPP

Issue no. 5: Whether the plaintiff is entitled for interest @18% per annum from the date of filing of present suit till the date of vacant and peaceful

possession of the suit property? OPP

Issue  no.  6:  Whether  the  plaintiff  is  entitled  for  decree  of permanent injunction as prayed for? OPP Issue no. 7: Relief.

Plaintiff's Evidence

In order to prove his case, plaintiff has examined himself as PW-1 and filed his evidence by way of affidavit Ex. PW1/A wherein he reiterated the

contents of the plaint on oath. PW-1 has relied upon the certain documents i.e site plan as Ex.PW1/1, registered agreement to sell and purchase

 dated  16.04.2009  as  Ex.PW1/2,  registered  GPA  dated 16.04.2009 as Ex.PW1/3, original receipt, will, affidavit as Ex.PW1/4 to

Ex.PW1/6 respectively, Â copy of letter dated 28.05.1997 as Ex.PW1/7, original copy of the letter dated 16.05.1997 as Ex.PW1/8, original receipt no.

7839 as Ex.PW1/9, original receipt dated 14.01.1998 as Ex.PW1/10, original letter dated 13.06.1997 as Ex.PW1/11, copy of the legal notice with

 postal  receipts  and  courier  receipts  and  returned  envelope  as Ex.PW1/12 (collectively) and postal receipts and returned

envelope as Ex.PW1/13 (collectively).  PW-1 was cross-examined on behalf of  the defendant and then discharged.Â

Plaintiff examined Sh. Deshbandhu Gosain, UDC from the office of Sub Registrar II as PW-2. He has proved the agreement to sell and purchase

dated 20.04.2009 which was already Ex.PW1/2. He was cross examined by defendant and then discharged.

Plaintiff examined Sh. Diwan Singh , LDC from the office of DUSIB as PW-3. He has proved the allotment letter of the suit property in the name

of Sh. Yad Ram s/o Sh. Budha which was already Ex. PW1/7. He was  also  cross-examined  by  counsel  for  the  defendant  and

 then discharged.

Plaintiff also examined Sh. Jagbir Singh as PW-4 and Sh.Chottey Lal Chaudhary as PW-5. Both these witnesses have filed their affidavit in

examination in chief i.e Ex. PW4/A and Ex. PW5/A.

PW-4 has deposed in the examination in chief that the plaintiff is owner of the suit property and he purchased the same from Sh. Yad Ram vide

 agreement  to  sell  and  purchase  dated  20.04.2009.  Defendant  is residing in the suit property.  Sh. Chotey Lal Chaudhary

prepared the demand draft for sum of Rs. 4,30,000/- on 14.04.2009 in favour of Sh. Yad Ram at the instance of the plaintiff as said Sh. Yad Ram

refused to accept the payment in cash. Documents with respect to the transfer of property were executed by Sh. Yad Ram in favour of the plaintiff.

It is further  deposed  that  defendant  refused  to  vacate  the  suit  property despite repeated requests of the plaintiff. PW-5 has also

deposed on the lines  of  PW-4. Both  witnesses  were  cross-examined  on  behalf  of defendant  and  then  discharged.  No

 other  witness  was  examined  by plaintiff. Hence, PE was closed.

Defendants' Evidence

Defendant has examined Sh. Dharampal as DW-1 and Sh. Tilak Raj as DW-2. Both these witnesses filed their evidence by way of affidavit as

Ex.DW1/A and Ex.DW2/A wherein they have reiterated the contents of the written statement on oath. Both the witnesses were cross-examined on

behalf of plaintiff and then discharged.

Defendant examined himself as DW-3. He filed his evidence by way of affidavit as Ex.DW3/A wherein he has reiterated the contents of the

written statement on oath. DW-3  has relied upon certain documents i.e copy of the agreement to sell and purchase dated  27.03.2009 as

Ex.DW3/1, copy of agreement of settlement dated 20.04.2009 as Ex. DW3/2 , copy  of  affidavits  of  Yad  Ram, Devender  and

 Hemant  all  dated 20.04.2009 as Ex. DW3/3, Ex. DW3/4 and Ex. DW3/5. DW-1 has also relied upon the copy of voter I card of himself and

his wife as Ex.DW3/6 and Ex.DW3/7. DW-1 has identified the postal receipts with respect to the complaint dated 05.12.2011 made by DW-1 against

the plaintiff as Ex.DW3/8. DW-3 was cross-examined on behalf of the plaintiff and then discharged. No other witness was examined by defendant.

 Hence, DE was closed.â€​

The only issue to be examined by this Court is as to whether there existed a valid Agreement To Sell in favour of the appellant/defendant dated

27.03.2009 thereby creating rights in the suit property in favour of appellant/defendant or that the original owner Sh. Yad Ram instead had validly

transferred rights in the suit property to the respondent/plaintiff in terms of the registered Agreement to Sell dated 20.04.2009.

In this regard firstly it is noted that the appellant/defendant though has relied upon an Agreement to Sell dated 27.03.2009 in his favour, however, in

the record of the trial court only one page i.e. the first page only of this alleged Agreement to Sell dated 27.03.2009 has been filed. This first page of

the alleged Agreement to Sell only details the parties to the document and the sale consideration and nothing else. In other words, the so called

Agreement to Sell in favour of the appellant/defendant is not a complete Agreement to Sell which is filed, but only the first page of the Agreement to

Sell is filed, and this page has been exhibited as Ex.DW3/1. In this first page, it is stated that the Agreement to Sell is for a total sale consideration of

Rs.5,30,000/-, and of this total amount, a sum of Rs.50,000/- was paid in cash. Therefore, in my opinion, on the basis of this one page, being just the

first page of an Agreement to Sell, with all other pages missing, it cannot be held that there existed a valid Agreement to Sell dated 27.03.2009 in

favour of the appellant/defendant. Â

Even assuming that there existed a complete Agreement to Sell dated 27.03.2009 in favour of the appellant/defendant, even then such an

Agreement to Sell on account of not being registered, could not be looked into for giving to the appellant/defendant, the benefit of the doctrine of part

performance contained in Section 53A of the Transfer of Property Act, 1882. This Section 53A was amended on 24.09.2001, whereby no agreement

to sell in the nature of part performance can be looked into by the Court unless the agreement to sell is stamped on ad valorem court fee for 90% of

the sale consideration and the agreement to sell is also registered. Therefore, besides the fact that there is no Agreement To Sell and only the first

page of the Agreement to Sell dated 27.03.2009 has been proved as Ex.DW3/1, even assuming such an Agreement to Sell existed, the same yet had

no legal sanctity and would not operate in favour of the appellant/defendant.

Another aspect to be noted is that the appellant/defendant claims to have paid the entire amount of Rs.5,30,000/- to the seller Sh. Yad Ram

pursuant to the Agreement to Sell dated 27.03.2009 but there is no proof as to the factum of payment of this sale consideration of Rs.5,30,000/- by the

appellant/defendant to Sh. Yad Ram. No documentary evidence whatsoever has been filed of making any payment by any banking instrument by the

appellant/defendant to the seller Sh. Yad Ram of the amount of Rs.4,80,000/-, and i.e. even if we accept that Rs.50,000/- was paid in cash as per the

alleged first page of the Agreement to Sell dated 27.03.2009. Â

It is also required to be noted that the appellant/defendant has not brought into the witness box Sh. Yad Ram to show that how and if at all the

appellant/defendant had paid a sum of Rs.5,30,000/- to Sh. Yad Ram for purchasing rights in the suit property, and which is the subject matter of the

alleged one page Agreement to Sell/ Ex.DW3/1.

It is therefore held that there is no Agreement to Sell dated 27.03.2009 in favour of the appellant/defendant, with the fact that no evidence is led by

the appellant/defendant to prove that he had paid a sum of Rs.5,30,000/- to Sh. Yad Ram.

In my opinion, a very important aspect to hold the respondent/plaintiff to have become the owner of the suit property, and not the

appellant/defendant, is because the suit property was allotted to Sh. Yad Ram by the Slum and J.J. Department, MCD and the entire set of original

documents of the possession slip and the allotment letter to Sh. Yad Ram from DDA have been filed and proved by the respondent/plaintiff as

Ex.PW1/7(colly) in the trial court. Not only the title documents of the suit property are in possession of the respondent/plaintiff but all other original

documents of the suit property pertaining to the electricity connection or payment of amount to MCD etc are in possession of the respondent/plaintiff

and the same were filed and proved in the trial court record as Ex.PW1/8 to Ex.PW1/11. In my opinion, therefore, once the entire original documents

of the suit property are with the respondent/plaintiff, obviously this would be so because the respondent/plaintiff had become the owner of the suit

property having purchased rights in the same from Sh. Yad Ram in terms of the registered Agreement to Sell dated 16.04.2009/Ex.PW1/2.

No other issue or argument is urged before this Court except as discussed above.

In view of the aforesaid discussion, I do not find any merit in the appeal. Trial court has rightly decreed the suit for possession and mesne profits

filed by the respondent/plaintiff.

Dismissed.