Pawan Kumar v. Desh Raj

32 WITH + CM(M) 212/2017 & CM APPLs. 6991/2017, 34782/2018, 34783/2018 Advocates versus SATNAM SINGH..... Respondent Advocates WITH + CM(M) 396/2017 & CM APPL. 13903/2017 SHAKUNTAL DEVI (SINCE DECEASED)

REPRESENTED BY HER LRS..... Respondent 2019:DHC:4585 Advocates 34 WITH + CM(M) 398/2017 & CM APPLs. 13921/2017, 34784/2018, 34785/2018 SUSHILA & ORS..... Respondent Advocates 35 WITH + CM(M) 399/2017 & CM APPL. 13923/2017 RAM LAL..... Respondent Through: Mr. Manuj Aggarwal, Ms. Arunima G upta & Mr. Ayush Saxena, Advocates WITH + CM(M) 401/2017 & CM APPLs. 13933/2017, 34788/2018, 34789/2018 RAMWATI..... Respondent Advocates WITH + CM(M) 402/2017 & CM APPLs. 13935/2017, 34786/2018, 34787/2018 NANHI DEVI (SINCE DECEASED)

NOW REPRESENTED BY GOMTI..... Respondent Advocates 38 WITH + CM(M) 406/2017 & CM APPL. 14046/2017 KANSHI RAM (SINCE DECEASED)

NOW REPRESENTED BY HEIRS & LEGAL REPRESENTATIVES..... Respondent Advocates for R-1 to 5 & 9 to 10. AND + CM(M) 407/2017 & CM APPL. 14048/2017 CHAMELI & ORS..... Respondents Advocates for R-3 & 4. CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J.(Oral)

1. The present petitions arise out of the impugned order dated 31st August, 2016 by which the Trial Court has directed impounding of the documents i.e. the GPA, the Agreement to Sell and the accompanying documents and has also directed payment of the stamp duty. The question that arises is as to the nature of transaction as per the GPA and the agreement to sell. The pleaded case is that the Plaintiff/Petitioner (hereinafter „Plaintiff‟) has acquired ownership of the suit property on the basis of these documents. These documents are admittedly executed on 24th September, 2009 prior to the decision of the Supreme Court in Suraj Lamp and Industries Private Limited v. State of Haryana and Anr., (2012) 1 SCC 656.

2. The submission that is made by Mr. Jain, ld. counsel for the Plaintiff is that the question as to whether the possession was symbolic or physical and whether the documents required registration or not, is a question of fact which is to be adjudicated by the Trial Court at the final stage. Specific reliance is placed on Clause 1, 2 and 11 of the Agreement to Sell. He further submits that as per the decision of the Supreme Court in Om Prakash v. Laxmi Narayan, (2014) 1 SCC 618, the question as to whether possession has in fact been given or not is a question of fact which cannot be decided prior to the stage of evidence being led before the Trial Court.

3. On the other hand, ld. counsel for the Respondent/Defendant (hereinafter „Defendant‟) submits that a perusal of the Agreement to Sell shows that the entire sale consideration stands paid. Secondly, though the word symbolic is used in clause 1, all the rents are to be realised by the Plaintiff. Further, in the plaint itself, the Plaintiff pleads that he is the owner of the property.

4. One of the issues that is framed in the suit is in respect of the claims of ownership of the Defendant and of the Plaintiff. The relevant issues issues no.1, 6 and 7 are set out hereinbelow:

5. Ld. counsels for the parties submit that the evidence in this suit is going on currently and the Plaintiff’s evidence is being recorded. The Trial Court has, in the impugned order held that the Agreement to Sell and the GPA show that the transaction is irrevocable in nature and that there was a conveyance of the suit property by the alleged previous owner. Under these circumstances, the Trial Court has directed that the documents are liable to be impounded and proper stamp duty is to be paid.

6. The findings in paragraphs 4 and 5 of the impugned order clearly would amount to pre-deciding some of the aspects on the issues which have been framed in the matter. The Defendant himself having claimed ownership rights in the suit property and an issue having been framed to this effect, the question as to whether the Plaintiff has acquired ownership and possession was actually delivered to him and if so, to what extent, is to be adjudicated by the Trial Court. A perusal of clauses 1, 2, 3 and 11 shows that there could be some debate as to the nature of possession handed over to the Plaintiff. The said clauses are extracted hereinbelow:

7. The above clauses show that further documents were to be executed between the parties, to seal the transaction. In Om Prakash (supra) the Supreme Court has observed:

In the light of the above clauses and the legal position laid down in Om Prakash (supra) issues of ownership would require to be determined by the Trial Court and adjudicated especially issues no.1, 6 and 7. Upon the Trial Court coming to the conclusion, if any, that ownership and possession was transferred to the Plaintiff, the entire stamp duty as directed in the impugned order would be liable to be paid by the Plaintiff at that stage. Needless to add that the findings in the impugned order would not come in the way of the independent adjudication of the ownership rights and possessary rights of the Plaintiff in the final stage.