Delhi High Court
Gajendra Kumar & Anr vs Govind Ram Sharma on 15 May, 2025
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on:24.03.2025
Judgment pronounced on:15.05.2025
+ RFA 152/2012 & CM APPL. 5517/2012
SH. GAJENDER KUMAR & ANR. ...Appellants
Through: Mr. Gaurav Jha, Adv.
versus
SH. GOVIND RAM SHARMA ...Respondent
Through: Mr. Umesh Sharma, Mr. Peeyush
Kaushik, Mr. Ritesh Kr. Kaushik,
Mr. Siddharth Kaushik and Ms.
Shivani, Advs.
CORAM:
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
JUDGMENT
HARISH VAIDYANATHAN SHANKAR, J.
1. The instant Regular First Appeal1 under Section 96 read with
Order XLI and Section 151 of the Code of Civil Procedure, 19082, has
been filed by the Appellants/original Defendants impugning the
judgment and decree dated 17.02.2012 granting recovery of possession,
damages/ mesne profits, declaration and permanent injunction in favour
of the Respondent herein/ original Plaintiff, passed by the Court of Ld.
Additional District Judge-02 (West), Tis Hazari Courts, Delhi
1
RFA
2
CPC
Signature Not Verified
Digitally Signed RFA 152/2012 Page 1 of 23
By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
(hereinafter referred to as „Trial Court’) in Civil Suit No. 359/11/2003
titled as “Sh. Govind Ram Sharma vs. Sh. Gajender Kumar & Anr.”.
2. The dispute between the parties pertains to a property measuring
50 square yards bearing plot No. 47 out of Khasra No. 73/13, Budh
Vihar Extn., Delhi, now known as A-47, Shyam Colony, Budh Vihar,
Phase-II, Delhi (hereinafter “suit property”).
FACTUAL MATRIX:
3. Briefly put, Appellant No. 2 executed a General Power of
Attorney, Agreement to Sell, Receipt, Possession Letter, Deed of Will
and Affidavit3, all dated 10.01.2000, in respect of the Suit Property, in
favour of the Respondent, for an alleged consideration of Rs.30,000/-.
4. Vide registered deeds of Revocation of Power of Attorney and
Revocation of Will, both dated 26.09.20014, Appellant No. 2 revoked/
cancelled the Power of Attorney and the Will and sold the suit property
to Appellant No. 1/ her real brother for a total sale consideration of Rs.
35000/- by way of registered General Power of Attorney, Will, Sale
Agreement, Affidavit, Possession Letter and a Receipt, all dated
26.09.2001.
5. On 04.06.2003, on the complaint of the Respondent in Police
Station Sultanpuri, Delhi, an FIR No. 847/2003 under Sections
341/448/506/420/34 of the Indian Penal Code, 1860 was registered
against Appellant No. 2, her husband and her father-in-law.
3
Sale documents
4
Revocation Deeds
Signature Not Verified
Digitally Signed RFA 152/2012 Page 2 of 23
By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
6. On 19.08.2003, the Respondent filed the suit seeking recovery of
possession, damages, mesne profits, declaration and permanent
injunction against the Appellants before the Ld. Trial Court.
7. The Ld. Trial Court dismissed the suit vide the judgment dated
11.02.2010, holding that the Respondent cannot claim ownership of the
suit property solely on the basis of the General Power of Attorney and
without a registered sale deed.
8. Being aggrieved, the Respondent preferred Regular First Appeal
bearing RFA No. 339/2010 before this Court, wherein, vide order dated
28.07.2011, the judgment dated 11.02.2010 was set aside and the suit
was remanded back for fresh adjudication. Both parties were directed to
appear before the Ld. Trial court on 24.08.2011 to fix the date of the
final hearing on the basis of the pleadings and evidence already on
record.
9. After hearing the parties, the Ld. Trial Court passed the impugned
judgment & decree dated 17.02.2012.
SUBMISSION OF THE PARTIES:
10. The Ld. Counsel for the Appellants would submit that the sale
was never effectuated since the Respondent failed to make the payment
and the possession of the suit property was never handed over to the
Respondent, therefore, the Respondent had no right, title or interest in
the interest of the suit property.
11. During the hearing, the attention of this Court was invited to the
discrepancies in the statements made by the Respondent in paragraph 4
Signature Not Verified
Digitally Signed RFA 152/2012 Page 3 of 23
By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
of his Evidence by way of Affidavit dated 12.07.2005 vis-à-vis his cross-
examination dated 28.08.2006.
12. The Ld. Counsel for the Appellants would further submit that
though Appellant No. 2 and the Respondent executed various documents
on 10.01.2000, the same never culminated in an actual sale and transfer
of the property in question.
13. The Appellants would also contend that, in fact, even as per the
evidence of the Respondent, he did not have possession and relies upon
the contradiction between the contents of the evidence affidavit and the
cross-examination wherein the Respondent has stated that no goods or
articles of the Respondent were lying in the first floor of the Suit
Property of which he claimed possession.
14. The Counsel for the Appellants would also claim that the
documents executed on 10.01.2000 could not attain fruition in the form
of a concluded transaction, as the consideration was never received.
15. It would also be contended that the said documents, in any event,
were revoked by registered deeds of revocation and the Respondent has
not sought for cancellation of the said deeds of revocation.
16. Appellant No. 2 would further contend that they have remained in
possession throughout and the Respondent never had possession of the
Suit Property at any point in time.
17. It would also be contended that the Respondent did not send a
single notice to Appellant No. 2 to vacate the suit property.
Signature Not Verified
Digitally Signed RFA 152/2012 Page 4 of 23
By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
18. The Ld. Counsel for the Appellants would further submit that
Section 54 of the Transfer of Property Act, 18825 prescribes that the
sale of tangible immovable property can take place only by way of
registered documents. Since there is no registered document in the
present case and consideration has also not been paid by the Respondent,
his suit is liable to be dismissed. The Appellants would also contend that
the Respondent‟s reliance on Section 53A of the TPA is misplaced as he
never had possession.
19. On the other hand, supporting the correctness of the impugned
judgment, the Ld. counsel for the Respondent would submit that the
Respondent is the rightful owner of the suit property. The Respondent
had purchased the suit property from Appellant No. 2 on 10.01.2000 for
a consideration of Rs. 30,000/-, which was duly paid by him and in lieu
of the said sale, Appellant No. 2 executed various documents, all dated
10.01.2000. The payment was duly acknowledged by Appellant No. 2 by
issuing a receipt dated 10.01.2000 to the said effect, which clearly states
that the payment is made and any denial of non-receipt of payment by
Appellant no. 2 is hit by Sections 91 and 92 of the Indian Evidence Act,
1872 and for this purpose he would rely on the Judgments of Roop
Kumar v. Mohan Thedani6 and Karan Madaan v. Nageshwar Pandey7.
20. Ld. counsel for the Respondent would further submit that the
possession of the suit property was handed over to him by Appellant No.
2, after the execution of the sale documents dated 10.01.2000. In that
5
TPA
6
(2003) 6 SCC 595
7
2014 SCC OnLine Del 1277
Signature Not Verified
Digitally Signed RFA 152/2012 Page 5 of 23
By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
respect, a Possession Letter dated 10.01.2000 was executed. He would
also rely on Clause 7 in the Agreement to Sell and Para 3 of the Affidavit
of Appellant No. 2, both dated 10.01.2000.
21. It would be the contention of the Respondent/ Plaintiff that two
months after he had taken possession, the husband of Appellant No. 2
approached the Respondent and requested him to allow his family to live
in the suit property as they were facing great hardships. Thereafter, the
possession of the property was handed over to Appellant No. 2 and they
have been living in the suit premises without payment of any rent.
22. Ld. counsel for the Respondent would further submit that the
reliance placed by Appellant No. 2 on the Revocation Deeds dated
26.09.2001 is misplaced as the said deeds nowhere mention that the sale
documents were revoked due to non-payment of the sale consideration to
Appellant No. 2.
ANALYSIS & FINDINGS:
23. This Court has carefully considered the submissions made by the
parties and perused the documents on record.
24. In the Suit, the Respondent sought the following reliefs:
“(a) Pass a Decree of Possession in favour of the plaintiff and
against the defendants, thereby directing the defendants to hand over
the peaceful vacant possession of suit property bearing no. 47,
measuring 50 sq. yds., out of khasra no. 73/13, Abadi known as Budh
Vihar Ext., situated in the area of Village Rithala, Delhi, now known
as A-47, Shyam Colony, Budh Vihar, Phase II, Delhi, more
specifically shown in Red colour, to the plaintiff. The defendants be
also directed to pay a sum of Rs.3,000/- per month from May, 2003 to
August, 2003 and mesne profits @ Rs.100/-per day from the date of
filing the present suit till the time of handing over the actual physical
possession of the suit property to the plaintiff.
Signature Not Verified
Digitally Signed RFA 152/2012 Page 6 of 23
By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
(b) Pass a decree of declaration in favour of the plaintiff and
against the defendants thereby declaring the title documents all dt.
26.9.2001 executed by the defendant no.2 in favour of the defendant
no. 1 in respect of the suit property, as null and void, and the plaintiff
be declared the owner of the suit property.
(c) Pass a decree of permanent injunction in favour of the plaintiff
and against the defendants, thereby restraining the defendants, their
heirs, relatives, successors, executors, agents etc. etc. from creating
any third party interest in suit property bearing no. 47, area
measuring 50 sq. yds., out of Khasra no. 73/13, xxxxxxxx Abadi
known as Budh Vihar Extn., situated in the area of Vill. Rithala,
Delhi, now known as A-47, Shyam Colony, Budh Vihar, Phase II,
Delhi, more specifically shown in Red colour in the site plan attached.
(d) Cost of the suit may also be awarded in favour of the plaintiff
and against the defendants.
(e) Any other or further relief(s), which this Hon’ble Court may
deems fit and proper under the facts and circumstances of the case
may also be passed in favour of the plaintiff and against the
defendants.”
25. While adjudicating, the Ld. Trial Court framed the following
issues:
“ISSUES:
1. Whether the suit of the plaintiff is not maintainable in its present
form in view of the preliminary objections taken by on behalf of the
defendant no.1? OPD
2. Whether the plaintiff is entitled for the decree of declaration in
favour of the plaintiff as prayed in prayer clause (b) of the plaint?
OPP
3. Whether the plaintiff is entitled for the decree of possession as
prayed in prayer clause (a)? OPP
4. Whether the plaintiff is entitled for the relief of permanent
injunction, as prayed? OPP
5. Relief.”
26. It is a matter of fact that the onus for Issue Nos. 2 to 4 was on the
Respondent.
27. In the impugned Judgment, the Ld. Trial Court examined issues
No. 1, 2 & 3 jointly, in the following manner: –
“11. Issues No. 1, 2 & 3
Signature Not Verified
Digitally Signed RFA 152/2012 Page 7 of 23
By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
Issues no. 1, 2 & 3 are being taken up together as all these three
issues are interconnected and have to be decided on the basis of the
same evidence.
In order to prove its case on record, the plaintiff -Sh. Govind Ram
Sharma has examined himself as PW-1 and has filed his evidence by
way of affidavit (Ex. PW-1), wherein he has reiterated almost all the
averments as have been made by him in his plaint. Further, in his
evidence, the plaintiff (PW-1) has proved the site plan of suit property
as Ex. PW-1/A. He has further proved the Regd. G.P.A. dated
10.1.2000 & Will dated 10.1.2000 executed by defendant no.2 in his
favour as Ex. PW-1/B & Ex. PW-1/C. PW-1 (plaintiff) has also proved
the agreement to sell, affidavit, receipt, possession letter, all dated
10.1.2000 executed by the defendant no.2 in his favor as Ex. PW-1/D
to Ex. PW-1/G respectively. Apart from this, he has proved the
certified copy of the Revocation Deeds dated 26.9.2001 as Ex. PW-
1/H and Ex. PW-1/I and stated that he was entitled to the reliefs as
prayed for in the plaint.
On the other hand in their DE, the defendants have examined
defendant no.1 Sh. Gajinder Kumar as DW-1, who has filed his
evidence by way of affidavit which is Ex. DW-1/A, wherein the said
defendant has reiterated almost all the averments as has been made
by him in his written statement. Further, DW-1 has proved the GPA,
agreement to sell, Will and receipt dated 26.9.2011 executed by the
defendant no.2 in his favour as Ex. DW-1/1 to Ex. DW-1/4
respectively. He has also proved the site plan of the suit property as
Ex. DW-1/5.
In their DE, the defendants have also examined DW-2 Smt. Sushila
Devi, who has filed her evidence by way of affidavit (Ex. DW-2/A),
wherein she has reiterated all the averments as have been made by
her in her written statement and stated that suit of the plaintiff is
liable to be dismissed.
12. In the present case, plaintiff has deposed that he purchased the
suit property from the defendant no.2 Smt. Sushila Devi for a total
sale consideration of Rs. 30,000/- which was duly paid by him to her
and in lieu of the said sale, defendant no.2 executed GPA (Ex. PW-
1/B), Will (Ex. PW-1/C), agreement to sell, affidavit, receipt,
possession letter, all dated 10.1.2000 (Ex. PW l/D to Ex. PW-1/G)
respectively. He has also deposed that after sale of the suit property,
the possession of the same was taken by him and after two months,
husband of the defendant no.2 approached him and requested him to
allow his family to live in the suit property as they were facing great
hardship due to paucity of place and on the said request, he permitted
the family of defendant no.2 to live on the ground floor of the suit
property. It has been submitted on behalf of the plaintiff that in view
Signature Not Verified
Digitally Signed RFA 152/2012 Page 8 of 23
By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
of the above-said sale documents executed by the defendant no.2 in
his favour, the plaintiff has become the owner of the suit property and
he is entitled to seek possession of the same from the defendants.
It is pertinent to note that execution of the aforesaid sale documents in
favour of the plaintiff has also been admitted by the defendant no.2 as
was evident from the para-2 of the reply on merits in her written
statement, wherein she has specifically stated that defendant no.2
signed all the sale documents of the said property in favour of the
plaintiff on 10.1.2000, but the payment was not made by the plaintiff
and it was settled between the plaintiff and the defendant no.2 that the
defendant no.2 will remain in possession of the said property till
payment is not made by the plaintiff but after come time, the plaintiff
flatly refused to make payment of the sale consideration and as such
the possession has not been given to the plaintiff and lastly defendant
no.2 canceled the GPA dated 10.1.2000 which was in favour of the
plaintiff and then she sold the said property to defendant no.1.
Hence, in view of the above averments made by the defendant no.2 in
her W.S, it is clear that execution of the sale documents by the
defendant no.2 in favour of the plaintiff is not in dispute, the only
defence being taken by the defendant no.2 is that she did not hand
over the possession of the suit property to the plaintiff as he had not
made the payment of the sale consideration, however this contention
put forward on behalf of the defendants is nullified by the receipt
dated 10.1.2000 (Ex. P W-1/F), wherein it has been specifically
mentioned that a sum of Rs. 30,000/- has been received by the
defendant no.2 from the plaintiff in full and final settlement of the sale
of the suit property and nothing remains due out of the sale price. In
these circumstances, in view of the Receipt (Ex. P. W-1/F), it is clear
that the payment of the entire sale consideration has been made by the
plaintiff and as such the ground of non payment was not available to
the defendant no.2 for the purpose of cancellation of sale documents
executed by her in favour of the plaintiff.
Further, it has also been submitted on behalf of the defendants that
the sale of the said property was not complete as the possession of the
suit property was never handed over by the defendant no.2 to the
plaintiff and as such there was no sale as contemplated vide section-
54 of the Transfer of Property Act, however the said submissions
made on behalf of the defendants regarding the non handing of the
possession of the suit property by the defendant no.2 to the plaintiff is
contrary to the record as is evident from possession letter dated
10.1.2000 (Ex. PW-1/G) executed by the defendant no.2, wherein she
has specifically stated that she has delivered the vacant possession of
the suit property to purchaser i.e. plaintiff herein. Apart from this, in
the said possession letter, it has also been stated that defendant no.2
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Digitally Signed RFA 152/2012 Page 9 of 23
By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
has no objection and he i.e plaintiff can use, hold and enjoy the said
plot as he likes.
In addition to above, it has been submitted on behalf of the plaintiff
that in view of the completion of the sale transaction between plaintiff
and defendant no.2, she was not having any right to revoke the GPA
etc., executed by her in favour of the plaintiff as Power of Attorney for
a consideration is irrecoverable in terms of Section-202 of Contract
Act. I find considerable force in these submissions made on behalf of
the plaintiff as perusal of the record reveals that sale transaction
between the plaintiff and defendant no.2 in respect of the suit property
was complete and even the entire sale consideration in respect thereof
have been received by the defendant no.2 from the plaintiff as was
evident from the receipt (Ex. PW-1/E). In addition to this, the
defendant no.2 has also executed the Affidavit (Ex. PW-1/E) wherein
she has specifically stated that she shall not revoke or cancel the
GPA, Agreement, Cash receipt, Will and Possession Letter etc., which
have been executed by her in respect of the suit plot/property.
Defendant no.2 has also stated therein that she has delivered the
vacant possession of the above said plot/property to the purchaser i.e
plaintiff herein.
13. It has also been argued on behalf of the defendants that
plaintiff does not have any right to seek possession of the suit property
as it was settled legal position that SA/GPA/Will transactions are not
transfers or sales and such transactions can not be treated as
completed transfers or conveyances. In this regard, Ld. Counsel for
the defendants has relied upon the case law cited as 2011 X AD SC
365, however the said submissions made on behalf of the defendants
are not of much use to the defendants in view of the observations
made by Hon’ble Supreme Court of India in para-18 of the said
judgment.
In para-18 of the above case titled as “Suraj Lamp & Industries (P)
VS. State of Haryana & Anr.” {cited as 2011 X AD (SC) 365}, it has
been laid down by the Hon’ble Supreme Court of India that:-
“We have merely drawn attention to and reiterated
the well settled legal position that SA/GPA/Will
transactions are not transfer or sales and that such
transaction 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 TP Act. If they are entered before this day,Signature Not Verified
Digitally Signed RFA 152/2012 Page 10 of 23
By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
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”.
Hence, in view of the above, it is clear that SA/GPA/WILL
transactions can continue to be treated as existing agreement of sale
and nothing prevents affected parties from getting registered Deeds of
Conveyance to complete their title. In the above said case law, it has
also been held that „SA/GPA/WILL transactions‟ may also be used to
obtain specific performance or to defend possession under section
53A of TP Act and that if they are entered before that day, they may
be relied upon to apply for regularization of allotments/leases by
Development Authorities. In these circumstances, the above said case
law is not of much use to the defendants in the present case.
Thus, in view of the above discussion and observations and having
regard to the fact and circumstances of the present case, I am of the
considered opinion that the present suit filed on behalf of the plaintiff
is maintainable and the plaintiff is entitled to a decree of possession
in respect of the suit property and consequently the sale documents
dated 26.9.2001 executed by the defendant no.2 in favour of defendant
no.1 are also liable to be declared as null and void.
In the instant case, plaintiff is also claiming damages/mesne profits @
Rs. 3000/- p.m from May, 2003 to August 2003 and thereafter @ Rs.
100/- per day from the date of filing of the suit till handing over the
actual physical possession of the suit property to the plaintiff,
however the said rate of damages /mesne profits appears to be on
higher side. Apart from this, no evidence regarding the rates
prevalent in the area have been led on behalf of the plaintiff. Further,
from the material on record, it is clear that defendant no.2 is in
occupation of the suit property. In these circumstances and having
regard to the fact and circumstances of the present case, I am of the
considered opinion that it will be expedient in the interest of justice
that defendant no.2 be directed to pay damages/mesne profits to the
plaintiff for the unauthorized use and occupation of the suit property
@ Rs. 1500/- p.m from the date of filing of the suit till the peaceful
and vacant possession of the suit property is handed over by the
defendants to the plaintiff.
Hence, in view of the above, issues no. 1 to 3 are decided in favour of
the plaintiff and against the defendants.”
(Emphasis suppled)
Signature Not Verified
Digitally Signed RFA 152/2012 Page 11 of 23
By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
28. From the above analyses, it is clear that the Ld. Trial Court has
predominantly relied upon the documents dated 10.01.2000 to hold that
consideration of the sale was paid and the sale stood concluded in favour
of the Respondent and possession of the suit property was handed over
to the Respondent by Appellant No. 2.
29. Based on these documents, the Ld. Trial Court refuted the
objections of Appellant No. 2 qua the non-payment of the sale
consideration and possession of the suit property by the Respondent.
30. The first prayer in the suit for a decree of possession and mesne
profit is premised on the documents dated 10.01.2000 executed as
between Appellant No. 2 and Respondent and that two months after
allegedly taking possession, at the request of the husband of Appellant
No. 2, the Respondent gave the possession of the premises back to
Appellant No. 2. The Respondent contends that, in March 2003, when
Appellant No. 2 refused to handover the possession back to the
Respondent, the suit was filed before the Ld. Trial Court.
31. The fact of, firstly, possession being handed over to the
Respondent and the Respondent, thereafter, handing back possession to
Appellant No.2 has been disputed by Appellant No. 2 on the ground that
the Respondent was never placed in possession of the suit property and
there was never a concluded transaction. The Appellants have contended
that the suit property was in their possession and more particularly with
Appellant No. 2.
32. The Respondent’s claims over the recovery of the suit property
were based on the documents dated 10.01.2000, i.e., General Power
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Digitally Signed RFA 152/2012 Page 12 of 23
By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
Attorney8, Agreement to Sell, Receipt, Possession Letter, Deed of Will
and Affidavit executed in favour of the Respondent by Appellant No. 2
and alleged possession for 2 months.
33. At least two documents, namely, the GPA and the Will, both dated
10.01.2000, were revoked by registered documents dated 26.09.2001.
34. The Suit Property came to be the subject matter of registered
documents, dated 26.09.2001, seeking to transfer the same in favor of
Appellant No. 1.
35. Needless to state that it was for the Respondent/ Plaintiff to prove
that the documents executed on 10.01.2000, in fact, (a) culminated in a
concluded transaction and (b) in terms of the agreement, possession of
the property had been handed over to him.
36. The Respondent has been unable to prove either.
37. The Respondent has been unable to prove the factum of
possession for the following reasons:
(i) Admittedly, the Appellants were in possession of the Suit Property
for nearly 2 years and 4 months from the date of execution of the
documents in favour of the Respondent.
(ii) The Respondent has specifically pleaded that he was put into
possession by Appellant No.2 and her husband. It is specifically claimed
that possession was handed back at the request of the husband of
Appellant No. 2. However, for reasons best known to the Respondent,
the husband of Appellant No. 2 was never called as a witness.
8
GPA
Signature Not Verified
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By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
(iii) The Suit property was a residential property where the Appellant‟s
family was staying. This would mean that all the belongings etc., of a
family would have been in the said property. It is difficult to accept that
the Appellant moved out for an extremely brief period of two months
and thereafter returned with a request to re-enter into the property. In
fact, there is nothing on record to show that the Appellant No.2 ever left
the property.
(iv) The Respondent relies upon three documents, all dated
10.01.2000, to buttress his claim. The Respondent relies upon Clause 7
in the Agreement to Sell, the Possession Letter and Para 3 of the
Affidavit. The Respondent relies purely on the documents to assert a
“fact” of actual possession.
(v) The Respondent/ Plaintiff has specifically pleaded that he had
been requested by the husband of Appellant No.2 to hand back
possession to her. Though the husband is a witness to the documents
dated 10.01.2000, the Respondent never chose to examine him.
Resultantly, the entire premise of the Respondent of having handed back
possession at the request of the husband of Appellant No.2 remains
unproven.
(vi) There is nothing to prove that possession was ever handed to the
Respondent at any time, except for reliance on the sale documents as
afore-stated.
(vii) Before the Ld. Trial Court, the Respondent/ Plaintiff, to prove the
factum of his possession in the suit property from the date of execution
of the sale documents dated 10.01.2000, placed reliance upon two of
such documents, i.e., possession letter (Ex. PW-1/G) and agreement (Ex.
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Digitally Signed RFA 152/2012 Page 14 of 23
By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
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PW-1/D) acknowledging that the suit property has been handed over to
the Respondent. However, no evidence was placed before the Ld. Trial
Court to evince the factum of the alleged possession for the initial two
months. There is, in fact, evidence to the contrary that the Respondent
was never in possession of the Suit premises. The Respondent makes
repeated averments, in the suit, replication, evidence etc, to the
documents alone.
(viii) The Respondent has not given any cogent reason as to why the
possession continued with Appellant No. 2 for a long period of almost
two and a half years, post the execution of the documents on 10.01.2000.
(ix) No plausible reason has been given for this alleged possession
given by the Respondent, without any remuneration/ consideration/ rent
and without having executed any deed/ agreement etc. for the said
purpose. Initially, the Respondent in Para 4 of his evidence affidavit
attempted to put forth some reasons, as follows:
“4. I say that the family of the defendant no.2 are continuing living in
the said property without paying any rent to me as I gave the said
property to them in good faith without any charge/rent. However, I
had regularly visited the said premises to inspect my portion on the
first floor on the suit property, who was in my possession and
occupation.”
However, in his cross-examination, the Respondent made a
specific statement that the contents of this Para are not correct. The
relevant portion of the Respondent‟s cross-examination is extracted
below:
“…. The contents of Para 4 of my affidavit Ex. PW-1 are not correct. I
was explained the contents of the affidavit Ex. PW-1 when the same
was prepared. The goods/ articles belonging to me are not lying in the
first floor of the suit premises….”
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By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
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(x) Thus, except for relying upon the Possession Letter (Ex. PW-1/G)
and Agreement (Ex. PW-1/D) and the Appellant No. 2‟s affidavit before
the Ld. Trial Court, the Respondent did not place any documentary proof
or witness to establish his averments that since the execution of the sale
documents dated 10.01.2000, he took over actual possession of the suit
property, and after two months, at the request of the husband of
Appellant No. 2, gave possession back to Appellant No. 2.
(xi) The Respondent, for reasons best known to him, did not seek to
recover possession for almost 2 and half years before the filing of suit
before the Ld. Trial Court.
(xii) The onus of proof while seeking recovery of possession of the suit
property is on the Respondent/ Plaintiff. However, the Respondent failed
to establish any possession over the suit property by him. The Hon‟ble
Supreme Court summarized the law in this regard in the judgment of
Smriti Debbarma v. Prabha Ranjan Debbarma9 as follows:
“34. In the above factual background, for the plaintiff to succeed, she
has to establish that she has a legal title to the Schedule „A‟ property,
and consequently, is entitled to a decree of possession. The defendants
cannot be dispossessed unless the plaintiff has established a better title
and rights over the Schedule „A‟ property. A person in possession of
land in the assumed character as the owner, and exercising peaceably
the ordinary rights of ownership, has a legal right against the entire
world except the rightful owner. [See Poona Ram v. Moti Ram (Dead)
through Legal Representatives, (2019) 11 SCC 309 and Nair Service
Society Limited v. Rev. Father K.C. Alexander, AIR 1968 SC 1165] A
decree of possession cannot be passed in favour of the plaintiff on the
ground that defendant nos. 1 to 12 have not been able to fully
establish their right, title and interest in the Schedule „A‟ property.
The defendants, being in possession, would be entitled to protect and
save their possession, unless the person who seeks to dispossess them9
2023 SCC OnLine SC 9Signature Not Verified
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By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
has a better legal right in the form of ownership or entitlement to
possession.
35. The burden of proof [See Paragraph 19 in Anil Rishi v. Gurbaksh
Singh, (2006) 5 SCC 558] to establish a title in the present case lies
upon the plaintiff as this burden lies on the party who asserts the
existence of a particular state of things on the basis of which she
claims relief [See Addagada Raghavamma v. Addagada
Chenchamma, AIR 1964 SC 136]. This is mandated in terms of
Section 101 of the Evidence Act, which states that burden on proving
the fact rests with party who substantially asserts in the affirmative
and not on the party which is denying it. This rule may not be
universal and has exceptions [See Sections 103, 104 and 105 of the
Evidence Act], but in the factual background of the present case, the
general principle is applicable. In terms of Section 102 of
the Evidence Act, if both parties fail to adduce evidence, the suit must
fail [See Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558]. Onus of
proof, no doubt shifts and the shifting is a continuous process in
the evaluation of evidence, but this happens when in a suit for title
and possession, the plaintiff has been able to create a high degree
of probability to shift the onus on the defendant. In the absence of
such evidence, the burden of proof lies on the plaintiff and can be
discharged only when he is able to prove title [See R.V.E.
Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple,
(2003) 8 SCC 752]. The weakness of the defence cannot be a
justification to decree the suit [See Union of India v. Vasavi
Cooperative Housing Society Limited, (2014) 2 SCC 269]. The
plaintiff could have succeeded in respect of the Schedule „A‟ property
if she had discharged the burden to prove the title to the Schedule „A‟
property which squarely falls on her. This would be the true effect of
Sections 101 and 102 of the Evidence Act [See Sebastiao Luis
Fernandes (DEAD) Through LRs. v. K.V.P. Shastri (DEAD) Through
LRs., (2013) 15 SCC 161]. Therefore, it follows that the plaintiff
should have satisfied and discharged the burden under the provisions
of the Evidence Act, failing which the suit would be liable to be
dismissed. Thus, the impugned judgment by the High Court had
rightly allowed the appeal and set aside the judgment and decree of
the trial court. We, therefore, uphold the findings of the High Court
that the suit should be dismissed. We clarify that we have not
interfered or set aside any observations of the High Court in re the
Tripura Land Revenue and Land Reforms Act, or defendants’ claim
etc. Notably, M/s. Hotel Khosh Mahal Limited is not a party to the
present proceedings.”
(Emphasis supplied)
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Digitally Signed RFA 152/2012 Page 17 of 23
By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
38. The Ld. Trial Court has held the Respondent entitled to possession
on the basis of the documents dated 10.01.2000, despite their being
sufficiently under a cloud due to (a) there being no possession with the
Respondent; (b) The registered Revocation deeds and (c) the documents
in favour of Appellant No.1 herein.
39. The Hon‟ble Supreme Court has held that where there is a
sufficient cloud over the title on the basis of which possession is being
sought, a declaratory relief in respect of the documents on which the
claim is made will also have to be sought. The Hon‟ble Supreme Court
in Anathula Sudhakar v. P. Buchi Reddy10 summarized the law on this
issue as follows:
“21. To summarise, the position in regard to suits for prohibitory
injunction relating to immovable property, is as under:
(a) Where a cloud is raised over the plaintiff’s title and he does not
have possession, a suit for declaration and possession, with or without
a consequential injunction, is the remedy. Where the plaintiff’s title is
not in dispute or under a cloud, but he is out of possession, he has to
sue for possession with a consequential injunction. Where there is
merely an interference with the plaintiff’s lawful possession or threat
of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with
possession, normally the issue of title will not be directly and
substantially in issue. The prayer for injunction will be decided with
reference to the finding on possession. But in cases where de jure
possession has to be established on the basis of title to the property, as
in the case of vacant sites, the issue of title may directly and
substantially arise for consideration, as without a finding thereon, it
will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction,
unless there are necessary pleadings and appropriate issue regarding
title (either specific, or implied as noticed in Annaimuthu
Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202]).
Where the averments regarding title are absent in a plaint and where
there is no issue relating to title, the court will not investigate or
10
(2008) 4 SCC 594
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By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
examine or render a finding on a question of title, in a suit for
injunction. Even where there are necessary pleadings and issue, if the
matter involves complicated questions of fact and law relating to title,
the court will relegate the parties to the remedy by way of
comprehensive suit for declaration of title, instead of deciding the
issue in a suit for mere injunction.
(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.”
(Emphasis supplied)
40. In the present case, neither has a declaration in respect of the
documents on the basis of which the Respondent claims relief been
sought, nor has a relief of cancellation of the Revocation deeds dated
26.09.2001 been sought.
41. In view of the afore-stated, this Court, given the conspectus of
facts as seen, holds that, the finding of the Ld. Trial Court, qua the grant
of relief of possession purely on the basis of the documents without in
any manner being able to prove possession from the date of the
documents till the filing of the Suit is unsustainable.
42. The Ld. Trial Court has also held that the receipt dated 10.01.2000
establishes the fact of receipt of the monies, thereby concluding the
transaction. However, this Court is of the view that the entire case
revolves around the factum of possession and the abject failure on the
part of the Respondent to establish the same. It is trite that possession is
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Digitally Signed RFA 152/2012 Page 19 of 23
By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
the culmination and the fruit of the transaction of the alleged sale. There
is nothing that has been brought on record to show actual possession or
even assertion of any rights as the lawful owner in terms of receiving any
rent etc. for the continued occupation by the Appellants. The police FIR
No. 847/2003 with respect to Appellant No.2, her husband and father-in-
law, is very close in time to the filing of the Suit and after a considerable
period of continued possession by the Appellants herein.
43. In the second prayer of the suit, the Respondent sought a decree of
declaration in his favour declaring the documents all dated 26.09.2001
executed by Appellant No. 2 in favour of Appellant No. 1 in respect of
the suit property as null and void, and the Respondent be declared the
owner of the suit property.
44. It is settled law that in a suit for declaration of title, the onus to
prove a better title over the suit property shall be on the plaintiff and
without proving the same, the declaration cannot be laid in favour of the
Plaintiff. The Hon‟ble Supreme Court in Nagar Palika v. Jagat Singh11
made the relevant observations in this regard, which are as follows:
“6. The counsel appearing for the respondent, could not explain as to
how in face of such clear denial of the title and possession of the
respondent by the Municipal Committee in its written statement, the
court of appeal proceeded on the assumption that the acquisition of
the title through the sale deed, which had not been produced before
the court, was an admitted fact in the case and had never been
questioned by the Municipal Committee. According to us, when the
court of appeal proceeded to consider the evidence relating to the
possession of the respondent after the alleged date of purchase by him
through the sale deed in question, which was never produced before
the court, the court of appeal committed a grave error. It never applied
its mind to the main issue, in a suit based on title, whether the
respondent had proved his title to the suit property. It cannot be11
(1995) 3 SCC 426Signature Not Verified
Digitally Signed RFA 152/2012 Page 20 of 23
By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
disputed that onus to prove his title to the property in question was on
the said respondent. It further appears, that on behalf of the appellant,
it was pointed out before the court of appeal that the said respondent
was claiming the share of one of the co-sharers in the patti, but no co-
sharer can convey title to a specific part of joint property. Having
omitted to consider the basic issues in the case, the court of appeal
proceeded only to consider the revenue records from the year 1974-75
like jamabandi for the year 1974-75 and Khasra Girdwari pertaining
to the year 1977-79.”
(Emphasis supplied)
45. Further, the Hon‟ble Supreme Court in Union of India v. Vasavi
Coop. Housing Society Ltd12 held as under:
“15. It is trite law that, in a suit for declaration of title, the burden
always lies on the plaintiff to make out and establish a clear case for
granting such a declaration and the weakness, if any, of the case set up
by the defendants would not be a ground to grant relief to the plaintiff.
16. The High Court, we notice, has taken the view that once the
evidence is let in by both the parties, the question of burden of proof
pales into insignificance and the evidence let in by both the parties is
required to be appreciated by the court in order to record its findings
in respect of each of the issues that may ultimately determine the fate
of the suit. The High Court has also proceeded on the basis that initial
burden would always be upon the plaintiff to establish its case but if
the evidence let in by the defendants in support of their case
probabilises the case set up by the plaintiff, such evidence cannot be
ignored and kept out of consideration.”
(Emphasis supplied)
46. In the present case, the Respondent produced the sale documents
dated 10.01.2000, which are, General Power Attorney, Agreement to
Sell, Receipt, Possession Letter, Deed of Will and Affidavit, to establish
his alleged title over the suit property.
47. As already held hereinbefore, this Court is of the view that there is
no concluded transaction between the parties. This Court has also held
12
(2014) 2 SCC 269
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Digitally Signed RFA 152/2012 Page 21 of 23
By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
that the Respondent has been unable to prove his possession for the
purpose of getting any relief in that respect.
48. In view of the same, it would not be possible to hold that the said
documents dated 10.01.2000 are determinative of the ownership of the
Suit Property.
49. Of note is also the fact that Appellant No. 2 revoked at least two
of the documents dated 10.01.2000 vide registered deeds of revocation
dated 26.09.2001 and executed sale documents dated 26.09.2001 in
favour of Appellant No. 1. The Appellants have also produced a letter of
intimation dated 26.09.2001 in respect of the said revocation of the same
date.
50. In light of the findings hereinbefore, this Court finds that the
declaratory relief in respect of the documents in favour of Appellant No.
1 as granted by the Ld. Trial Court is unsustainable in law.
51. Prayer (c) of the suit seeks a decree of permanent injunction.
52. It is no longer res integra that the relief of permanent injunction,
which is prohibitory in nature without being in possession of the suit
property and not having sought a declaration of title, is otiose.
53. In the present case, the Respondent has been unable to establish
the possession of the suit property on the date of the institution of the
suit. There is a doubt on the culmination of the transaction based on the
documents the Respondent has relied upon. The relief seeking permanent
injunction by the Plaintiff/ Respondent is, therefore, not sustainable in
law.
54. Prayer (d) of the suit is for costs. The Respondent, not being
entitled to any of the other reliefs, is held not entitled to costs either.
Signature Not Verified
Digitally Signed RFA 152/2012 Page 22 of 23
By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
55. In light of the aforesaid, the present appeal is allowed and the
impugned judgment and decree passed by the Ld. Trial Court is quashed.
56. The Appeal and pending application(s), if any, are disposed of in
the above terms.
HARISH VAIDYANATHAN SHANKAR, J.
MAY 15, 2025/sm/er
Signature Not Verified
Digitally Signed RFA 152/2012 Page 23 of 23
By:HARVINDER KAUR
BHATIA
Signing Date:17.05.2025
14:49:44
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