Ashok v. Satnam Singh & Ors.

6.2. It is stated by the defendants in their written statement that they are not illegal occupants in the disputed portion of the suit property but are residing therein with the permission of the ‘owner’ of the suit property.

6.3. It is, further, stated by the defendants that they are tenants in the suit property and have taken the disputed portion of the suit property on payment of rent. However, pertinently no details of the ‘owner’ who granted the permission or the rent agreement or the rate of rent or proof of payment of rent were disclosed in the written statement or in the affidavit of evidence filed by the defendants. It was during the cross-examination of defendant no.1, i.e., as DW-1 that it was asserted by the defendants that the owner of the suit property as per the defendants is Sh. Amar Singh.

7. The matter was set down for trial after framing of the following issues:

1. Whether the plaintiff has not approached the court with clean hands?(OPD)

2. Whether the suit of the plaintiff has been properly valued for the purposes of court fees and jurisdiction? (OPP)

3. Whether the plaintiff is entitled to the relief of possession, as prayed for? (OPP)

4. Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? (OPP)

5. Relief.

7.1. The Trial Court after perusing the evidence and pleadings decided issue nos. 3 and 4 in favour of the plaintiff. It held that the plaintiff had led the evidence on record to prove his title to the suit property and was therefore entitled to recovery of possession from the defendants. The findings of the Trial Court read as under: “10. The onus to prove the same was upon the plaintiff. It was incumbent upon him to prove his title over the suit property. In his examination in chief the plaintiff/PW[1] proved the manner in which he had purchased the plot of which the suit property forms a part. He proved the complete chain of the ownership since 1985, of the plot bearing no. D23,Budh Vihar, Phase II, as Ex. PWA/1 (colly). He proved the site plan asEx.PWB/1. He was cross examined by Ld. Counsel for defendants. In the entire cross examination no suggestion was put that the petitioner is not the owner or that the documents relied upon by him are forged. The petitioner/PW[1] denied the suggestion that thedefendants are residing in the suit property since 10-12 years back. No evidence has been led by the defendants to suggest that they are living in the suit property since that long and the nature of occupation.

11. The previous owner Sh. Subhash Bhardwaj was examined asPW 2 who deposed that he sold off the plot bearing no. D-23,Budh Vihar,Phase-IIof which the suit property forms a part, to the petitioner on30.07.2009. His cross-examinationreveals that he was not confronted by thedefendants if he was their landlord. He categorically deposed that at the timeof his purchasing and selling of the suit property, the same was lying vacant.He deposed that he had no knowledge about the defendants entering in a suitproperty.

12. Thus the plaintiff by proving the documents showing his ownership over the suit property had discharged his onus. After that the onus was upon the defendant to show that he has a better title over the suit property or as he has contended that he was a tenant therein. No evidence has been led by the defendant to show his title in the suit property. He has miserably failed to prove the factum of his being a tenant in the suit property as averred by him. As has come in the evidence of defendant no. 2, the owner of the suit property is stated to be one Sh. Amar Singh though she denied having seen any document of ownership in his favour. She stated in her evidence that said Sh. Amar Singh never executed any document infavour of the defendants regarding the property in question. The said factwas not even mentioned in the WS. DW[2] stated in her cross examination that the plot in question was purchased by Sh. Subhash Bhardwaj from Amar Singh who later on sold it of to Sh. Subhash Bhardwaj. It isworthwhile to mention that in their WS the defendant have denied havingknowledge about having any deal between the plaintiff and Sh. Subhash. In their WS the defendants have stated that they are living in the suit property with the permission of its “owner” but have not mentioned as to who as per them is the owner. DW[2] admitted that she is having no document in her favour for permission to reside in the suit property. Sh. Chander Pratap Singh, the witness to the execution of documents between the plaintiff and Sh. Subhash Bhardwaj, while confirming his attestation, deposed to the effect that of the time of execution of such documents, the suit property was vacant. His testimony lends weight to the averments of the plaintiff that the suit property was entered upon by the defendants on 02/08/2010 which is corroborated by notice u/s 91 Cr.P.C given by police officials of PS Vijay Vihar which is Mark PW C/1.

13. The name of Amar Singh which the defendants have mentioned in their cross examination is not mentioned in their WS. It had cropped up for the first time in the cross examination of the defendants. The said Sh. Amar Singh who DW[2] stated to have known the whereabouts was never summoned as a witness by the defendants. As such the contentions of the defendants that they have been permitted to reside in the suit property by said Sh. Amar Singh cannot be relied upon. Even if the defendants claim to be tenant in the suit property, they were required to atleast state the rate of rent, to whom it was or is being paid etc. but no such details have even been averred in their WS or deposed in evidence.

14. The previous owner PW3/Sh. Subhash Bhardwaj denied the suit property being occupied by the defendant at the time of its sale to the plaintiff. He deposed that prior to him the suit property was owned by Ms. Shakuntala Devi and initially by Master Dayanand Solanki. The complete chain of the suit property has been filed on record and name of any Sh. Amar Singh does not figure anywhere. As such the submission of the defendants that they have been permitted by said Sh. Amar Singh in the absence of his testimony to this effect seems an improvement when Sh. Subhash Bhardwaj had denied the averments of the defendants. Defendants in their cross-examinationadmit the plaintiff to be the owner of the property of which the suit property forms a part, the fact which they denied in their WS. No averments have been made by them regarding their status under the ownership of plaintiff, leave alone proving it. As such both the issues are decided against the defendants.

15. In view of the above, the defendants have miserably failed to show any right, title or interest in the suit property. Their occupation of the suit property is thus held to be illegal.” (Emphasis Supplied)

8. The Trial Court thus, vide impugned judgment dated 21.09.2016 returned following critical conclusions:

(i) The Trial Court held that the plaintiff has produced before it documentary evidence which was duly proved and evidenced his title to the suit property. The Trial Court relied upon the evidence of the vendor Sh. Subhash Bhardwaj, who was examined as PW-3 and the witness to the title documents Sh. Chander Pratap Singh i.e., PW-2 to arrive at the aforesaid finding.

(ii) The Trial Court while returning the said finding duly considered the admission of the defendants in their cross examination that Sh. Subhash Bhardwaj i.e., the vendor is the owner of the suit property.

(iii) The Trial Court held that the oral plea of the defendants with respect to the initial ownership of one Sh. Amar Singh was raised for the first time in the cross examination; without the said plea being substantiated with any documentary or oral evidence.

(iv) The Trial Court held that there is no evidence on record to hold that some Sh. Amar Singh owns the suit property as his name finds no mention in the documents on record.

(v) The Trial Court held that the defendants have failed to place on record any documents evidencing their right to occupy the disputed portion as a tenant. It held that the defendant had failed to prove their rightful possession of the disputed portion. The Trial Court concluded that the occupation of the disputed portion by the defendants was illegal.

9. The judgment of the Trial Court was challenged in appeal by the defendants and the First Appellate Court as well after perusing the record and the evidence on record has returned the finding that the defendants have themselves admitted the plaintiff’s ownership of the suit property. The relevant findings of the Appellate Court read as under:

10. Further, DW-2/ Smt. Rajmati (defendant no. 2) also admitted in her cross examination that the plaintiff was the owner ofthe suit property. She stated:- “The said Sh. Amar Singh never executed any documentin our favour of the property in question.... this plot was purchased by Sh. Subhash Bhardwaj from Sh. Amar Singh. It is correct that the plot in question was purchased by plaintiff from Sh. Subhash Bhardwaj. It is correct that I have no document in my favour giving permission forresiding in the suit property”.

11. Hence, as the defendants have themselves admitted the plaintiff's ownership over the suit property, they are estopped from challenging his title over the suit property.” (Emphasis supplied)

10. The First Appellate Court upheld the findings of the Trial Court as regards the ownership of the plaintiff on issue nos. 3 and 4 after perusing the cross-examination of DW-1 i.e., Sh. Ashok and DW-2 i.e., Sh. Rajmati. The Courts below concluded that the defendants did not dispute the ownership of the vendor Sh. Subhash Bhardwaj, who has sold the suit property to the plaintiff.

11. This Court is of the opinion that a perusal of the judgments of the Trial Court and the First Appellate Court shows that in the facts of this case both the parties went to trial with full knowledge that the plaintiff was claiming possession on the basis of his title. The plaintiff led detailed evidence and placed on record and proved the documents Ex. PWA/1 (Colly) through which he claimed title in the suit property. He examined the vendor Sh. Subhash Bhardwaj as PW-3 and the witness to the transfer documents Sh. Chander Pratap Singh as PW-2.

12. As noted hereinabove, the Trial Court and the First Appellate Court have after perusing the evidence led by the plaintiff and the evidence led by defendant nos. 1 and 2 recorded that the plaintiff has proved his title with respect to the suit property. This is also for the reason that the defendants in their cross-examination admitted the title of the vendor Sh. Subhash Bhardwaj.

13. The defendants herein are admittedly not setting up any case for rival title to the suit property and are in fact only claiming to be tenants in the suit property, even though they have not placed on record any document evidencing their tenancy. The defendants have neither identified their landlord nor placed on record any documentary evidence of tenancy or proof of payment of rent. Therefore, the suit filed for the relief of possession against the defendants, who admittedly do not claim any rival title of ownership, would be maintainable.

14. Even before this Court, during the arguments the defendants have not disputed the ownership of Sh. Subhash Bhardwaj who sold the property to the plaintiff. The chain of title documents on which reliance has been placed by the plaintiff begins from 1985.

14.1. The title transfer documents in favour of Ms. Shakuntala Devi are dated 06.11.1985, who is stated to have transferred the right, title and interest in favour of Sh. Subhash Bhardwaj on 30.01.2008 and the plaintiff has acquired the said right, title and interest from Mr. Subhash on 30.07.2009.

14.2. The plaintiff is therefore, deriving his title from Ms. Shakuntala Devi in whose favour the documents are dated 06.11.1985 and the said documents are admissible in evidence.The chain of title documents and the title documents of the plaintiff were duly tendered and admitted in evidence without any objection being raised by the defendants at the relevant stage during trial. Therefore, in view of Section 36 of the Indian Stamp Act, 1899, these documents cannot be questioned at this stage for the first time.

15. The plaintiff has filed the suit for recovery of possession and is relying upon the title documents not for invoking the provisions of Section

53 A of the Transfer of Property Act, 1872. The title documents in favour of the plaintiff evidences that he has a better title than the defendants to the suit property; and therefore, the suit filed by the plaintiff for recovery of the possession from the defendants has been rightly held to be maintainable. In this regard, it would be relevant to refer to the judgment of a Coordinate Bench of this Court in Arbinder Singh Kohli & Anr. vs. Gobind Kaur Kohli 2018 SCC OnLine Del 9663, wherein similar circumstances after considering the judgment of the Supreme Court in Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana (2012) 1 SCC 656, the learned Single Judge held that a suit for possession filed by the plaintiff on the basis of an unregistered agreement to sale was maintainable. The relevant portion of judgment reads as under: “11. Shri Malhotra further urged that the Agreement to Sell does not confer any title upon the Plaintiff. The consideration was paid from the joint family funds as admittedly, the Plaintiff did not have any source of income. He relied on the cross-examination of the Plaintiff to the effect that she had no source of income. He further submitted that along with the Agreement to Sell, which was executed by Shri Suresh Chand Kapoor in favour of the Plaintiff, on 17 May, 2002, a Power of Attorney was executed by Shri Gautam Kapoor in favour of Defendant No. 2, the daughter-in-law. In the said Power of Attorney, it is recorded that possession is also being given to the daughter-in-law. Though the said Power of Attorney has been subsequently cancelled, the Defendants also have a Power of Attorney from the original owners, i.e. the the Balharas, who were the original Bhumidars of the suit property. He submits that a mere Agreement to Sell which is not registered, cannot confer any title on the Plaintiff in view of the judgment of the Supreme Court in Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana, (2012) 1 SCC 656 (hereinafter, ‘Suraj Lamps’).

12. In the absence of registration, the Plaintiff is not entitled to any rights in the suit property, in view of Section 17 and 17(1-A) of the Registration Act and Section 53A of the Transfer of Property Act. He further submits that Power of Attorney which is registered transfers the title in favour of the daughter-in-law as it also has the right to sell in her favour. He further submits that the Agreement to Sell merely permits the Plaintiff to seek specific performance and nothing more. xxx xxx xxx xxx

40. The Plaintiff herein, is not seeking protection of her possession under Section 53A of the TPA in the present case. She, having purchased the property through various documents namely, Agreement to Sell, Will, letter of possession and receipt, is seeking to evict her son and daughter-in-law who she had permitted to stay with her in the suit property. The Plaintiff only needs to establish a better title than the Defendants and not an absolute title. Suraj Lamps (Supra) clearly holds that though sales by Agreement to Sell, Will, etc, are not legally valid modes of transfer, they are permitted to get the transactions already entered into, regularised. Thus to this extent, Suraj Lamps (Supra), completely protects the Plaintiff's rights. The Plaintiff has taken steps to get the General Power of Attorney in favour of Defendant No. 2 cancelled and get a new Power of Attorney executed in favour of her husband. The parties who have purchased properties by means of Agreement to Sell/Will are entitled to obtain and seek specific performance. Suraj Lamps (Supra) also recognises that on the basis of such documents, even mutations made by the municipal or revenue authorities need not to be disturbed. A General Power of Attorney given amongst family members is also recognised by Suraj Lamps (Supra).”

15.1. The Supreme Court in Suraj Lamp (supra) held as under: “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 be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents 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 53A of Transfer of Property 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’ has 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, sons, 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 land relating to apartments in favor 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 bonafide/genuine transactions.”

16. In view of the fact that the defendants are admittedly not claiming any rights of title to the suit property; they have failed to prove their right to remain in the disputed portion of the suit property and considering the fact that the plaintiff has proved with documentary evidence a better title in this suit property; the Trial Court has rightly decreed the suit for possession.

17. In view of the concurrent findings returned by the Trial Court and the First Appellate Court, there cannot be any dispute that the Respondent No.1 herein has a better title to the property than the Respondent. The documents relied upon are dated 1985 and the requirement for compulsory registration of the agreement to sell was introduced in 2001.

18. In this regard, it would be instructive to refer to the judgement of the Coordinate Bench of this Court in Ramesh Chand v. Suresh Chand & Anr. ILR(2012) V DELHI 48, wherein the Court held that the right of possession of an immovable property arises even by having a better title or a better entitlement/right to the possession than the person who is in actual physical possession. The relevant paragraph of the said judgment reads as under: “12. In view of the aforesaid facts and the validity of the documents, being the power of attorney and the Will dated 16.5.1996, the respondent No. 1/plaintiff would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the appellant/defendant No. 1. In fact, I would go to the extent saying that by virtue of para 14 of the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) taken with the fact that Sh. Kundan Lal has already died, the respondent No.1/ plaintiff becomes an owner of the property by virtue of the registered Will dated 16.5.1996. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof.”

19. In the opinion of this Court, the First Appellate Court has properly appreciated the evidence on record and the findings arrived at are correct and do not merit any interference by this Court.

20. The reliance placed by the counsel for the Appellant on the judgment of Anathula Sudhakar (supra) to contend that the suit of the plaintiff was not maintainable is incorrect as in the present case, the plaintiff has not filed a mere suit for permanent injunction but had filed a suit for possession and permanent injunction. Further, as discussed hereinabove, the plaintiff proved his better title to the suit property and the defendants as well during evidence admitted the title of the plaintiff. The findings of the Trial Court and the First Appellate Court in this matter as regards the title of the plaintiff is duly recognised even in the said judgment of the Supreme Court at paragraph 21(d) which reads as under: “(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.”

21. The arguments raised by the Appellant do not raise any question of law much less a substantial question of law and the grounds merely challenge the finding of facts.

22. In this regard, it would be appropriate to refer to the case of Nazir Mohamed v. J. Kamal and others (2020) 19 SCC 57 wherein the Supreme Court observed that second appeal only lies on a substantial question of law and the party cannot agitate facts or call upon the High Court to reappreciate the evidence in a second appeal. The operative portion to this aspect reads as under:

29. To be a question of law "involved in the case, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.”

23. In these circumstances, the findings of the Trial Court and First Appellate Court do not merit any interference. No substantial question of law arises in this matter. This appeal is, accordingly, dismissed. Pending applications are also disposed of.