$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of decision: 30 September, 2024
+ C.R.P. 266/2023, CM APPL. 49546/2023
SMT. MADHU BALA & ANR. .....Petitioner
Through: Mr. B.D. Sharma, Advocate.
versus
SMT. DEEPIKA ARORA .....Respondent
Through: Mr. Rajeev Kumar, Advocate.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
1. A Civil Revision Petition under Section 115 of the CPC has been filed
on behalf of the petitioners to challenge the Order dated 20.12.2022 vide
which the Application under Order VII Rule 11 read with Section 151 CPC
filed by the petitioners/defendants, has been dismissed.
2. The respondent/plaintiff had filed a Suit for Possession, Permanent
and Mandatory Injunction and Mesne Profits in respect of Plot No.46-47,
measuring 50 sq. yds. out of Khasra No.360, situated in the area of Revenue
Estate, Deendarpur, Colony known as Deendarpur Extension, New Delhi
(hereinafter referred to as the ). The plaintiff/ respondent
“suit property”
had claimed herself to be the absolute owner of suit property by virtue of
unregistered Agreement to Sell, General Power of Attorney, Affidavit, etc.
all dated 06.12.2004.
3. The petitioners/ defendants filed an Application under Order VII Rule 11
CPC for rejection of the suit on the ground that the respondent had no
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DigitallySigned By:VIKAS
ARORA
Signing Date:04.11.2024
19:01:58
documents or title in her favour. In fact, the petitioners/ defendants had
purchased the suit property vide GPA, Agreement to Sell etc. in the year
December, 2012 from the erstwhile owner and since then are in possession
of the suit property. The electricity connection earlier was in the name of
the erstwhile owner Shri Ravinder and after purchase of property, the
petitioner No.1 Madhubala had got it changed in her name. Prior to Shri
Ravinder the electricity connection was in the name of Shri Suraj Pal.
4. The petitioner/defendant had challenged the title of the plaintiff by
asserting that these are all notarized documents and do not create any right,
title or interest in favour of the plaintiff. Furthermore, the entire plaint is
silent about the date on which the respondent got allegedly dispossessed
from the suit property, but has only claimed that she came to know about her
loss of possession on 17.09.2015 when she visited the property and found
the petitioners in possession. Plaintiff also found that petitioner
No.1/defendant had got an Electricity Meter installed in his name. It is
asserted that from the averments made in the plaint, it is evident that the
plaintiff had never visited the suit property prior to 17.09.2015. The record
also reflects that she was never in possession of the suit property.
5. It is claimed that the suit did not disclose any cause of action for
which Application under Order VII Rule 11 read with Section 151 was filed
for rejection of plaint. However, the Application was dismissed on
20.12.2022. The Review under Order XXXVII Rule 1 CPC was filed by the
petitioners, which was dismissed vide Order dated 20.12.2022.
6. Aggrieved by the said Orders, the present Revision Petition has been
filed challenging the Order dated 20.12.2022 rejecting the Application under
Order VII Rule 11 CPC. Reliance has been placed on the case of Suraj
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DigitallySigned By:VIKAS
ARORA
Signing Date:04.11.2024
19:01:58
Lamp Industries Pvt. Ltd. vs. State of Haryana & Anr.
7. Learned counsel on behalf of the respondent/plaintiff submits that the
respondent has valid documents of purchase of the property dated
06.12.2004. It is further submitted that there are sufficient particulars
detailed in the plaint which entitle the respondent to seek recovery of
possession.
8. Submissions heard.
9. The respondent-plaintiff has filed the Suit for Possession, Permanent
and Mandatory Injunction and Mesne Profits in respect of the suit property.
10. The case of the respondent-plaintiff is that he acquired the ownership
of the suit property by virtue of GPA, ATS, Affidavits etc., dated
06.12.2004.
11. Before adverting to the other contentions, it is pertinent to consider
whether these documents create any ownership right in favour of the
respondent-plainitff in respect of the suit property.
12. In Rambhau Namdeo Gajre vs. Narayan Bapuji Dhotra, (2004) 8
SCC 614, it was observed that an Agreement to Sell does not create any
interest of the proposed vendee in the suit property. As per Section 54 of
TPA, 1882 the title in immovable property valued at more than Rs. 100, can
be conveyed only by executing a registered Sale Deed. This Section
specifically provides that a contract for sale of immovable property is a
contract evidencing the fact that the sale of such property shall take place on
the terms settled between the parties, but does not by itself create any
interest in or charge on such property. Unless a registered document of Sale
is executed pursuant to the Agreement to Sell in favour of the proposed
transferee, the title of the suit land continues to vest in the original owner
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DigitallySigned By:VIKAS
ARORA
Signing Date:04.11.2024
19:01:58
and the property remains in his ownership.
13. The doctrine of part performance can be availed by the proposed
transferee against the Transferor or any person claiming under him but not
against the third party with whom he does not have any privity of contract.
14. The scope of Agreement to Sell and the right, title and interest which
are created under an Agreement to Sell was explained by the Apex Court in
Suraj Lamp and Industries Private limited vs. State of Haryana (2012) 1
SCC 656. It was held that the Agreement to Sell coupled with other
documents namely Special Power of Attorney, General Power of Attorney,
is only a transaction of transfer or Sale and cannot be treated as a complete
sale or conveyance. They may continue to be treated as existing Agreement
to Sell and nothing prevents the affected parties from getting registered
deeds of Conveyance to complete their title. These documents may even be
used to obtain Specific Performance or to defend possession under Section
53A of the TPA, 1882 or may also be used to apply for regularization of
allotments/leases by Development Authorities. However, the Agreement to
Sell independently continues to be only an Agreement and does not create
any valid transfer of ownership in the suit property.
15. In Rekha Nankani vs. Kulwant Singh Sachdeva and Ors. (2009) 107
DRJ 282, this Court observed that if a property was bound by the Agreement
of the owner/vendor, then merely because the vendor had transferred the
property, the transferee shall not acquire rights better than that of the vendor
and shall be subject to the liability of the vendor. Similar observations were
made by the High Court of Allahabad in Smt. Ram Peary vs. Gauri and
Ors., AIR 1978 All 318.
16. In the light of the aforesaid judgments, it is abundantly clear that mere
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DigitallySigned By:VIKAS
ARORA
Signing Date:04.11.2024
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ATS, GPA etc., would not create any title in the nature of ownership of the
suit property by virtue of which the respondent-plaintiff could have filed a
Suit for Possession against the third party.
17. Pertinently, the respondent-plaintiff has not been able to place any
document to show that he had come into the possession of the suit property,
pursuant to the aforementioned documents. Admittedly, the
respondent-plaintiff is not in possession of the suit property as he has
claimed that when he visited the suit property on 17.09.2015, he found the
locks of the suit property broken into which the appellants herein had
trespassed. To claim that the suit property was ever in his possession, the
respondent-plaintiff has failed to produce any document which may be by
nature of electricity and water bill, Aadhar Card of any other such document
in support thereof. There are only bald assertions made that the
respondent-plaintiff had got the possession of the suit property by virtue of
ATS, GPA, etc.
18. Having observed that there is no right, title or ownership right created
in respect of the suit property and the respondent-plaintiff cannot maintain a
Suit for possession against a third party on the basis of the ATS, etc. At best,
such documents may enable a person to seek protection of possession
against the person who has executed these documents in his favour under
S.53A TPA, but the plaintiff has also not been able to show that he was ever
in possession of Suit property.
19. The essential conditions which are required to be fulfilled if a
transferee wants to defend or protect his possession under Section 53A of
the TPA, 1882 have been explained by the Apex Court in Shrimant Shamrao
Suryavanshi vs. Pralhad Bhairoba Suryavanshi (2002) 3 SCC 676 which
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DigitallySigned By:VIKAS
ARORA
Signing Date:04.11.2024
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are:
“1. There must be a contract to transfer for consideration of
any immovable property;
2. The contract must be in writing, signed by the transferor, or
by someone on his behalf;
3. The writing must be in such words from which the terms
necessary to construe the transfer can be ascertained;
4. The transferee must in part-performance of the contract take
possession of the property, or of any part thereof;
5. The transferee must have done some act in furtherance of the
contract;
6. The transferee must have performed or be willing to perform
his part of the contract.”
20. Section 53 of the Transfer of Property Act only protects the
possession of a person and does not create any title or ownership in the
property. Unfortunately, the respondent-plaintiff is admittedly not even in
possession of the suit property and Section 53A of the Transfer of Property
Act can also not be invoked in his favour.
21. Learned counsel for the appellants-defendants has rightly contended
in the Application under Order VII Rule 11 of the Code of Civil Procedure,
1908, that there is no cause of action disclosed in the Plaint.
22. The respondent-plaintiff has not been able to establish his title
superior to the appellants-defendants to be able to claim the recovery of
possession. There is no cause of action disclosed by the respondent-plaintiff
in the Plaint.
23. The present revision petition is allowed and the impugned Orders i.e.,
impugned Order dated 20.12.2022, whereby the Application under Order
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DigitallySigned By:VIKAS
ARORA
Signing Date:04.11.2024
19:01:58
VII Rule 11 read with Section 151 of the Code of Civil Procedure, 1908
filed by the appellants-defendants has been dismissed and the impugned
Order dated 09.08.2023, whereby the Review Application filed by the
appellants-respondents seeking review of the Order dated 20.12.2022 has
been dismissed, are set aside and the Suit of the respondent-plaintiff is
rejected.
24. Accordingly, the present petition is disposed of.
NEENA BANSAL KRISHNA, J
SEPTEMBER 30, 2024
va/S.Sharma
Signature Not Verified
DigitallySigned By:VIKAS
ARORA
Signing Date:04.11.2024
19:01:58