Full Text
HIGH COURT OF DELHI
Date of Decision: 23rd July, 2013
M/S.DEVINDER HOSIERY & ORS. ..... Appellants
Through: Ms. Anusuya Salwan, Ms. Renuka Arora and Mr. Vikas Sood, Advocates.
THROUGH LR’S. ..... Respondents
Through: Mr. K.P. Gupta, Adv. for R-1(f) with
R-1(f).
Mr. Anuj Jain, Adv. for R-1(g).
CM No.16416/2012 (of R-1(g) for directions)
JUDGMENT
1. The appeal in which this application has been filed was preferred against a judgment and decree for ejectment of the appellants from the premises earlier in the tenancy of the appellants (and after the determination of the said tenancy) and for mesne profits.
2. During the pendency of the appeal before this Court, the respondent/plaintiff/landlord died and his legal heirs were substituted as respondents No.1(a) to 1(g). 2013:DHC:3565
3. Arguments in the appeal were heard on 11th April, 2012, when besides the counsel for the appellants, counsel for the respondent No.1(f) and the counsel for the respondent No.1(g) alone appeared. It appears that the counsel for none of the other respondents appeared/argued.
4. However, after arguments were addressed, the matter was compromised whereby it was agreed that the appellants will not press the appeal and agreed to vacate the premises comprising 350 sq. feet on the ground floor of premises bearing No.A-66, Group Industrial Area, Wazirpur, Delhi within a period of three months from that date. It was further agreed that on the appellants so vacating the premises on or before three months, they will be exempted from paying any arrears towards occupation of the premises except the charges towards electricity and water dues. The appeal was disposed of in terms of the said compromise.
5. The grievance of the respondent No.1(g) in this application is that the appellants have not delivered possession in terms of the compromise order and have taken a stand of having delivered possession to the respondent No.1(f) alone and having been put back into possession by the respondent No.1(f) in pursuance to an Agreement to Sell.
6. The counsel for the respondent No.1(f) confirms the said position.
7. The counsel for the appellants has argued that the appellants have vacated the premises as agreed i.e. within three months, by delivery of possession to the respondent No.1(f) and are thereafter in possession as agreement purchasers from the respondent No.1(f). Reliance in this regard is placed on a receipt of delivery of possession to the respondent No.1(f), Agreement to Sell evidencing delivery of possession of the premises by the respondent No.1(f) to the appellants in pursuance to the Agreement to Sell.
8. It has been enquired from the counsel for the respondent No.1(f) as to what was the right of the respondent No.1(f) to sell/agree to sell the said premises.
9. The counsel for the respondent No.1(f) states that the respondent No.1(f) is entitled to 3/7th share in the aforesaid premises on account of the two sisters of the respondent No.1(f) having relinquished their shares by registered deeds in favour of the respondent No.1(f) and the respondent No.1(f) has thus agreed to sell his 3/7th share only in the premises and not the remaining 4/7th share or the share of the respondent No.1(g) and has also received sale consideration of the said 3/7th share only.
10. It has next been enquired from the counsel for respondent No.1(f) as to what was the right of the respondent No.1(f) to exclusively receive possession of the premises from the appellants especially when the order was made with the consent of the respondent No.1(g) also.
11. The counsel for the respondent No.1(f) has argued that the respondent No.1(f) as one of the landlords could have taken possession as rights could have been exercised either by all the heirs or by any of the heirs.
12. The counsel for the respondent No.1(f) who is an experienced Advocate of this Court however admits that in law one of the several owners alone is not entitled to part with possession and can at best only sell his undivided share in the property.
13. It has next been enquired from the counsel for the appellants whether the Agreement to Sell executed by the respondent No.1(f) in favour of the appellants is registered.
14. The answer is in the negative.
15. Under Section 17(1A) of the Registration Act as in force since September, 2001, the benefit of Section 53A of the Transfer of Property Act is not available without the Agreement to Sell being registered. The appellants thus cannot claim any right to retain possession as agreement purchaser in part performance.
16. Even otherwise the appellants and the respondent No.1(f) are found to have played sharp practices after obtaining consent order of this Court after arguments had been addressed. The appellants took benefit of even waiver of the decree for mesne profits against them by promising to vacate the premises within three months. It was clear to the appellants from the appearance of two separate lawyers for the respondent No.1(f) and the respondent No.1(g) that the said two respondents were not together. The appellants still chose to deliver possession and to deal with one of the respondents only, obviously to the prejudice of the other.
17. The appellants having agreed before this Court to deliver possession could have either delivered possession to at least both the respondents who had appeared and if were unable to do so, ought to have approached this Court. Unless such sharp practices of the litigants are curtailed, no faith would be left in the orders of the Court. The appellants as well as the respondent No.1(f) are thus found guilty of breach of statements made to the Court and are liable to be proceeded against therefor.
18. The appellants are stated to be not present before the Court. The respondent No.1(f) is stated to be present in the Court. He is directed to remain present unless discharged. He at this stage admits his mistake and shows readiness to return the amount received from appellants against appellants vacating the premises.
19. The counsel for the appellants states that she will produce the appellants before this Court at 1415 hours.
20. List today itself at 1415 hours. JULY 23, 2013
21. The matter has been taken up at 1415 hours. The appellant No.2 Devindra Singh and appellant No.3 Rajendra Singh as identified by the counsel for the appellants appear in person and tender unconditional apology for their acts aforesaid and state that they are ready and willing to deliver vacant, peaceful and physical possession of the property and will take their remedies in law for taking possession of the portion proportionate to the share which they have agreed to purchase. They however seek three days time to vacate the premises and secure the premises and state that they will deposit the keys in this Court. They further state that they are in control and possession of the entire premises and are in a position to so hand over possession of the same. They further undertake to this Court to so vacate the premises after securing and locking the same and to deposit the keys thereof in this Court.
22. Accepting the said undertaking of the appellants and with which they are ordered to be bound, time of three days is given.
23. List on 30th July, 2013.
24. The two appellants and the respondent No.1(f) are directed to remain present in the Court on that date as well. Copy of this order be give dasti under the signature of the Court Master. JULY 23, 2013 bs..