Santu v. Gaon Sabha Gadaipur and Ors.

1. This case is on the Regular Board of this Court since 21.2.2012. No one is present for the parties although it is 12.45 P.M. I have, therefore, perused the record and am proceeding to dispose of the appeal.

2. The challenge by means of this Regular First Appeal (RFA) filed under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 1.7.2004 dismissing the suit for injunction filed by the appellant/plaintiff. The suit pertains to a property admeasuring 2.[5] biswa, i.e. 125 sq. yds., situated in khasra No. 512/1, 2012:DHC:2953 Village Gadaipur, Tehsil Mehruali, New Delhi. Before proceeding further, I may note that defendants were ex parte in the trial Court. No written statement was filed on their behalf. No evidence was led on behalf of the respondents/defendants, yet the trial Court dismissed the suit.

3. The trial Court has made the following observations for dismissing the suit:-

4. The Gram Up-Pradhan/Sh. Hari Singh who, by filing an affidavit in favour of the appellant/plaintiff, deposed that the said plot of 125 sq. yds. was given under the 20 Point Programme for rehabilitation of the poor villagers, including the appellant/plaintiff. A copy of the L.R. Form No. 37 was proved and exhibited as Ex.P.4. The receipt in this regard was issued by the village Pradhan to Sh. Santu on 28.2.1982 which was towards the acknowledgment of having received `45/- as lease rent for nine years. This document is also again exhibited as Ex.P.4, though wrongly for the exhibit number.

5. The suit was instituted by the owner-Sh. Santu through his attorney, namely, one Sh. Goverdhan and at that stage Sh. Goverdhan must have purchased some rights in the suit land by means of a General Power of Attorney which was Ex.P.1. There are no disputes between Sh. Santu and the attorney-Sh.Goverdhan and in accordance with Section 202 of the Contract Act, 1872, rights created through Power of Attorney are recognized by Courts, including in the recent judgment of the Supreme Court in the case of Suraj Lamp Industries Pvt. Ltd. v. State of Haryana and Anr. 2012 (1) SCC 656, wherein paras 12, 13 and 16 read as under:- “12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53A of Transfer of Property Act). According to Transfer of Property Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of Transfer of Property Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter. Scope of Power of Attorney

13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan v. Basant Nehata 2005 (12) SCC 77 this Court held: “A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the done to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The done in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.” An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.

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16. 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 53A of the Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.” (underlining added)

6. I may note that the trial Court has also referred to the fact that there are electricity connections in the said plot for around 20 years and the documents pertaining to the electricity connections have been Ex.PW5/1 to Ex.PW5/3. Ex.P.[6] is a certificate issued by Delhi Vidyut Board certifying the load of 2.[5] KW provided against payment on 12.6.1986 for domestic purpose to Sh. Goverdhan, the attorney of Sh. Santu. The discussion by the trial Court with respect to the evidence led on behalf of the appellant/plaintiff is contained in paras 7, 8 and 9 of the impugned judgment and which read as under:-