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HIGH COURT OF DELHI
Date of Decision: 10th July, 2023
ANUJ SHARMA ..... Petitioner
Through: Mr. Vikas Sharma and Mr. Armaan Bhola, Advocates.
Through: Mr. Prashant Mohan, Advocate.
JUDGMENT
1. Present revision petition has been filed by the Petitioner laying a challenge to an order dated 24.09.2021 passed by the Trial Court in CS No.3591/2019, whereby his application under Order VII Rule 11 CPC has been dismissed. Petitioner before this Court is the Defendant before the Trial Court and Respondent is the Plaintiff. Parties hereinafter are referred to by their litigating status before the Trial Court.
2. Factual matrix to the extent relevant is that Plaintiff claims to be the registered owner of property bearing No.4138/1, Ground floor, Gali No.108, B-Block, Near Kapoor Garments Store, Sant Nagar, Burari, Delhi in Khasra No.124/10, admeasuring 55 sq. yds. (hereinafter referred to as the ‘suit property’). Defendant, who is the real brother of the Plaintiff, is stated to be in possession of the ground floor of the suit property as a licensee. Plaintiff purchased the suit property from its erstwhile owner by way of Registered GPA, Agreement to Sell and other allied documents dated 20.10.2004 and water and electricity meters are also installed in Plaintiff’s name.
3. It is Plaintiff’s case that on request of the Defendant, he permitted the Defendant to reside in the suit property along with his family as a licensee and a permissive user albeit without payment of licence fee. However, since Plaintiff was in need of the property and the Defendant was also creating nuisance for him and his family, he requested the Defendant to vacate the property and hand over physical possession to the Plaintiff. On the Defendant’s failure to vacate, legal notice dated 09.10.2019 was served on the Defendant terminating the licence and calling upon him to vacate the suit property within 15 days. When the Defendant did not hand over the possession of the property in the time granted, Plaintiff filed the present suit for mandatory and permanent injunction as well as damages.
4. Upon service of the summons, Defendant filed his written statement and subsequently an application under Order VII Rule 11 CPC read with Section 151 CPC to which no reply was filed by the Plaintiff. Two grounds were urged by the Defendant in the application: (a) suit is barred by law as Plaintiff has relied on GPA/agreement to sell etc. to show his ownership, which documents do not legally transfer title/ownership; and (b) suit is not valued properly as Plaintiff claims mandatory injunction, without being in possession of the suit property.
5. Trial Court dismissed the application on the ground that even if GPA and other allied documents are not valid transfer documents and do not transfer title to the Plaintiff, it is irrelevant since the suit is predicated on licensor-licensee relationship and is not based on title of the Plaintiff and in any case, the documents do carry some weight in favour of the transferee to seek mandatory injunction. The other reason recorded in the order is that for deciding an application under Order VII Rule 11 CPC, only plaint and documents annexed thereto have to be seen and no reference can be made to the written statement and/or documents filed by the Defendant. According to the Trial Court, Plaintiff has averred in the plaint that Defendant was inducted as a licensee and permissive user and there is also a reference to Registered GPA, Agreement to Sell, Affidavit, Will, Receipt, Possession Letter etc. executed in favour of the Plaintiff by the erstwhile owner and no ground was made out to reject the plaint.
6. Insofar as the second ground with respect to payment of court fee and undervaluation of the suit was concerned, Trial Court has disagreed with the Defendant and held that relationship between the Plaintiff and the Defendant is that of licensor and licensee and in such a case he need not seek recovery of possession and the suit was thus correctly valued.
7. Learned counsel for the Defendant contended that Trial Court has erred in appreciating that no right, title or interest was created in favour of the Plaintiff on the basis of documents such as GPA, Agreement to Sell, Will, etc. and therefore Plaintiff could not claim ownership of the suit property. It is a settled law that title of the property cannot be transferred and/or vested in the transferee by documents such as SPA/GPA/Agreement to Sell/Will, etc. Reliance was placed on the judgment of the Supreme Court in Suraj Lamps and Industries Private Limited (2) Through Director v. State of Haryana and Another, (2012) 1 SCC 656 and of this Court in Bishan Chand v. Ved Prakash (Since Deceased) Thr Lrs & Anr., 2018 SCC OnLine Del 11408, wherein this Court held that title of property cannot vest on the basis of GPA/Agreement to Sell even where transactions have taken place prior to the judgment of the Supreme Court in Suraj Lamps (supra). It was urged that in CS(OS) 654/2017 titled Hemant Verma v. Mithilesh Rani & Ors., decided on 07.04.2021, this Court rejected the plaint on a similar ground referring to the judgment in Bishan Chand (supra) and reiterating that documents such as GPA/Agreement to Sell will not transfer ownership/title.
8. It was further contended that even otherwise Plaintiff cannot place reliance on the Agreement to Sell in the absence of its registration. Trial Court erred and overlooked that the document is required to be compulsorily registered by virtue of Section 17 of the Registration Act,
1908. Reading of Clause 5 of the Agreement to Sell dated 23.12.2004, purportedly executed by Amol Bhargava in favour of the Plaintiff, itself shows that the parties thereto were required to execute a sale deed, which was never executed and thus the suit, predicated on an unregistered Agreement to Sell was liable to be dismissed.
9. It was further contended that the Trial Court has misinterpreted the judgment of this Court in O.P. Aggarwal & Anr. v. Akshay Lal & Ors., 2012 SCC OnLine Del 1589 and erred in holding that Plaintiff has some rights in the suit property. The said judgment was based on totally different facts where all documents regarding complete chain of transfer of the property were filed and the erstwhile owner had acquired title through a registered Sale Deed. In the present case, no document has been filed by the Plaintiff which establishes that the predecessor owned the suit property. It was also contended that the Trial Court has passed the impugned order in a great haste ignoring that two separate applications were filed by the Defendant, one under Section 35-A of Indian Stamps Act, 1899 and another under Order VII Rule 11 CPC and no order was passed on the former application.
10. Learned counsel on behalf of the Plaintiff defended the impugned order and submitted that the application under Order VII Rule 11 CPC was correctly rejected by the Trial Court in light of the judgment of this Court in O.P. Aggarwal (supra). It was further submitted that the suit was filed for mandatory and permanent injunction since the Defendant was in possession of the suit property as a licensee and despite service of termination notice, had refused to vacate the suit property. Plaintiff has clearly pleaded in the plaint that he is the owner of the suit property by virtue of documents such as Agreement to Sell/GPA, etc. and no other issue is relevant for the purpose of deciding the injunction suit between a licensor and licensee, which relationship was never denied by the Defendant.
11. I have heard learned counsels for the parties and examined their respective contentions.
12. At this stage, I may pen down that insofar as the second ground on which rejection of plaint was sought pertaining to undervaluation of the suit and court fee, neither the same has been pleaded in the revision petition nor canvassed during the course of hearing and therefore the Court is restricting the consideration only to the arguments with respect to plea in bar.
13. Challenge in the present revision petition is to an order of the Trial Court whereby application under Order VII Rule 11 CPC filed by the Defendant has been dismissed. Before examining the issue at hand, it is necessary to have a close look on the parameters which circumscribe the consideration/adjudication of the application under Order VII Rule 11 CPC, seeking rejection of plaint. In order to avoid prolixity, I may only refer to the judgment of the Supreme Court in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through Legal Representatives and Others, (2020) 7 SCC 366, relevant paras of which are as follows:- “23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order 7 Rule 11 are required to be strictly adhered to.
23.6. Under Order 7 Rule 11, a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512], read in conjunction with the documents relied upon, or whether the suit is barred by any law. xxxx xxxx xxxx
23.8. Having regard to Order 7 Rule 14 CPC, the documents filed along with the plaint, are required to be taken into consideration for deciding the application under Order 7 Rule 11(a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.
23.9. In exercise of power under this provision, the court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.
23.10. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration. [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137]
23.11. The test for exercising the power under Order 7 Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] which reads as: (SCC p. 562, para 139) “139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.”
23.12. In Hardesh Ores (P) Ltd. v. Hede & Co. [Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC 614] the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran v. R.V. Janakiraman [D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267; See also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941].
23.13. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order 7 Rule 11 CPC. xxxx xxxx xxxx
23.15. The provision of Order 7 Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clauses (a) to (e) are made out. If the court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the court has no option, but to reject the plaint.”
14. In the present case, the ground urged in the application under Order VII Rule 11 CPC is that the suit of the Plaintiff is not maintainable as no title/ownership vests in him with respect to the suit property by virtue of documents in the nature of GPA, Agreement to Sale and Purchase, Affidavit, Will, Receipt, Possession Letter, etc. It is trite that transfer of immovable property by way of sale can only be by a Deed of Conveyance/Sale Deed, duly stamped and registered as required by law and in the absence of this, no right, title or interest can be transferred in an immovable property. In Suraj Lamps (supra), the Supreme Court held that Power of Attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property and only authorizes the Attorney to do the acts specified therein. It was further held that 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 as valid mode of transfer of immovable property and Court will not treat such transactions as completed or concluded transfers or as conveyances. The Supreme Court observed that these documents cannot be recognized as deeds of title, except to the limited extent of Section 53-A of Transfer of Property Act, 1882.
15. The Trial Court while deciding the application of the Defendant in the present case took note of this binding dictum of the Supreme Court. The application has been dismissed, however, relying on the judgment in O.P. Aggarwal (supra), wherein the Court has held that while documents such as Agreement to Sell/GPA do not confer ownership rights as held in Suraj Lamps (supra), but such documents would create certain rights in immovable property in favour of a person who has documents executed in his favour, though not strictly ownership rights but rights entitling to claim possession of the suit property. In my view, no infirmity can be found in the order of the Trial Court as the same is in consonance with the judgment of this Court where it is held that documents in the nature of GPA/Agreement to Sell, etc. may not transfer title but do create certain rights, such as possessory rights, which cannot be disturbed by a third party. Relevant extract of the judgment is as under:-
18. Coming to the facts of the present case, as the Trial Court rightly noted, Plaintiff has averred in the plaint that the suit property was transferred to the Plaintiff by execution of Registered GPA/Agreement to Sell and Purchase, etc. and therefore going by the judgment in Ghanshyam (supra), Plaintiff would be prima facie entitled to possessory rights which are required to be protected against the licensee. Therefore, the licensee must part with possession at the end of the license period and the mere fact that the Plaintiff sets up a title on documents such as GPA/Agreement to Sell cannot be an impediment in filing a suit for mandatory/permanent injunction against the licensee. Moreover, at the stage of deciding an application under Order VII Rule 11 CPC, the Court was required to examine only the averments in the plaint on a mere demurrer and the documents annexed thereto. Not only does the plaint contain averments as aforementioned, however, Plaintiff has also filed the documents such as GPA, etc. Therefore, at this stage, it cannot be said that the plaint deserves to be rejected as being barred by law and no interference is warranted in the impugned order.
19. For all the aforesaid reasons, the revision petition is dismissed making it clear that this Court has not expressed any opinion on the merits of the case and the observations made herein are for the purpose of deciding the present revision petition.
20. Pending application also stands disposed of.
JYOTI SINGH, J JULY 10, 2023/kks