Delhi District Court
Ravinder Goel vs Nathu Ram on 29 March, 2025
IN THE COURT OF MS. POOJA JAIN, DISTRICT JUDGE-03
EAST DISTRICT, KARKARDOOMA COURT COMPLEX, DELHI
Suit No.: 1084/16
In the matter of:
SH. RAVINDER GOEL,
S/O SH. REVTI PRASAD,
R/O H.NO.2249, GALI NO.10,
KAILASH NAGAR, DELHI ......PLAINTIFF
Versus
1. NATHU RAM,
S/O SH. DHANI RAM,
R/O 198, GALI NO.6,
SARASWATI BHANDAR,
GANDHI NAGAR, DELHI
II ND ADDRESS:
PRIVATE HOUSE NO.33,
IN PROPERTY NO. X-138,
TAGORE GALI,
MOHALLA RAM NAGAR,
GANDHI NAGAR,
DELHI-110031
2. SH. RAKESH KUMAR,
S/O SH. KALU RAM,
R/O 21, VISHWAKARMA PARK,
KRISHAN KUNJ, DELHI .....DEFENDANTS
Date of filing of the suit : 08.09.2011
Final Arguments heard on : 11.03.2025
Date of Judgment : 29.03.2025
(As per amended plaint)
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 1 of 29
SUIT FOR POSSESSION, DECLARATION,
MESNE PROFITS AND INJUNCTION
JUDGMENT
BRIEF FACTS:
1. Succinctly, the necessary facts for just adjudication of the
present suit as stated in the plaint are as under:
It is averred that plaintiff is the exclusive owner of the built up
property no.X-138, Tagore Gali, Mohalla Ram Nagar, Gandhi Nagar,
Delhi-31, measuring area 1645 sq yards, and enjoining all rights, title and
interest in all respects, which was purchased from Smt. Bimla Devi W/o
Sh. Bhagwan Dass, R/o 447, Haveli Haider Kuli, Chandni Chowk, Delhi,
on 17.07.2002 vide GPA Agreement to Sell, Affidavit, Will, Duly registered
in the office of Sub-registrar-IV, Delhi. It is further submitted that
defendant no.1 had trespassed the suit property when Mr. Onkar Nath was
residing in the property no.138, Tagore Gali, Mohalla Ram Nagar, Gandhi
Nagar, Delhi-31 (hereinafter referred as suit property) and unauthorizedly
going to construct by removing the whole residential existing super
structure without any prior permission and sanction from the plaintiff. It is
further submitted that plaintiff has requested the defendant no.1 to desist
from illegal and unauthorized constructions but he openly declare that he
has connived with official of MCD. It is further submitted that plaintiff
earlier filed a suit for permanent and mandatory injunction against the
defendant no.1 & 2 alongwith MCD which is pending disposal before Sh.
Akash Jain, Civil Judge, KKD Courts, Delhi, in which defendant no.1 has
filed a set of documents like GPA Agreement to Sell, Possession Letter,
Affidavit, Receipt purported to be sold out the suit property on 17.11.1999
by one Mr. Pankaj in favour of Sh. Rakesh Kumar and further Sh. RakeshCS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 2 of 29
Kumar has purported to be sold out the aforesaid property to Sh. Nathu
Ram-Defendant no.1, by sale deed dated 15.05.2006. It is further averred
that there is no other chain of documents for sale of the property bearing
Quarter No.33, measuring 50 sq yards built up property, in property
no.X/138, Ganeshi Dass Building Gandhi Nagar, Delhi, the transaction of
sale and purchase between Rakesh Kumar and Nathu Ram, and the
document executed by Rakesh Kumar in favour of Nathu Ram i.e.
defendant no.1 by way of sale deed dated 15.05.2006 and document like
GPA, Agreement to sell, Possession Letter, Affidavit and receipt executed
by one Sh. Pankaj in favour of Sh. Rakesh Kumar dated 17.11.1999 may
kindly be treated as null and void and has no legal effect in the eyes of law
being forged, fabricated, manipulated, to create false evidence. It is further
averred that defendant are illegally and unlawfully retaining the possession
of the suit property and they are liable to pay occupation charge @
Rs.2000/- p.m. Hence, the present suit is filed by the plaintiffs.
CASE OF DEFENDANT NO.1.
2. Upon issuance of summons, defendant no.1 has appeared and
filed written statement. It is submitted that plaintiff has no locus standi to
file the present suit against the defendant. There is no privity of relationship
between plaintiff and defendant. It is further submitted that suit of the
plaintiff is not maintainable. Plaintiff is claiming himself as attorney of
Smt. Bimla Devi. The suit of the plaintiff is bad on account of mis-joinder
and non-joinder of the necessary party. No relief has been claimed in the
suit property against the defendant no.2 therefore defendant no.2 is not a
necessary party. The suit of the plaintiff is vague, hence, same is liable to
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 3 of 29
be dismissed. Present suit is bad under order 2 rule 2 CPC. It is further
submitted that suit of the plaintiff is bad on account of limitation. Plaintiff
did not have possession of the suit property. It is further submitted that
defendant has purchased the property in question after making full and final
payment of sale consideration, therefore, it will be the defendant who will
suffer irreparable loss and injury in case the documents are declared as null
and void. Defendants has further denied all the other allegations as alleged
by the plaintiff in the plaint. Further, defendant has prayed for dismissal of
the present suit.
CASE OF DEFENDANT NO.2.
3. It is pertinent to mention here that summons were issued to
defendant no.2 and upon service of summons, defendant no.2 has appeared
vide order dated 17.08.2012. Thereafter, defendant no.2 has not appeared
and was proceeded ex-parte vide order dated 07.12.2012 by the Ld.
Predecessor.
REPLICATION
4. Plaintiffs have filed the replication in response to the written
statement filed by the defendant reiterating the averments of the plaint. All
the averments of the written statement were denied by the plaintiff.
5. Upon completion of pleadings, following issues were framed
by the Ld. Predecessor vide order dated 02.08.2016:-
1. Whether the plaintiff has no locus standi to file the present
suit?OPDCS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 4 of 29
2. Whether the suit is not maintainable as the same has been
filed by the attorney?OPD
3. Whether the suit is bad for mis-joinder and non joinder of
parties as alleged by the defendant?OPD
4. Whether the suit is not maintainable under Order 7 rule 11
CPC as alleged by the defendant?OPD
5. Whether the suit is barred by limitation?OPD
6. Whether the plaintiff is entitled for a decree of possession
as prayed for?OPP
7. Whether the plaintiff is entitled for a decree of declaration
that the sale deed dated 15.05.2006 is null and void? OPP
8. Whether the plaintiff is entitled for a decree of mesne
profits, if so at what rate and for which period?OPP9 Relief.
6. PLAINTIFF’S EVIDENCE
Plaintiff has examined three witnesses to prove his case
including himself as PW-1. PW-1 has tendered his evidence by way of
affidavit which is Ex. PW1/A and relied upon following documents:
1. Ex. PW1/1- GPA
2. Ex. PW1/2- Agreement to sell.
3. Ex. PW1/3- Deed of Will.
4. Ex. PW1/4- Affidavit.
5. Ex. PW1/5-Receipt.
6. Ex. PW1/6-Site plan.
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 5 of 29
7. Mark X (colly, 2 sheets)- Certified copy of order sheet dated
14.02.2012 passed by Sh. Akash Jain, Ld. Civil Judge, Delhi.
8. Mark-Y- Photocopy of complaint dated 10.11.2008 addressed to
SHO PS Gandhi Nagar, Delhi for illegal constructions.
9. Mark-Z- (colly, 3 sheets)- Photocopy of complaint dated 11.11.2008
addressed to Commissioner of Police, ITO, New Delhi alongwith postal
receipts.
7. PW-2 Sh. Kishan Saxena has tendered his evidence by way of
affidavit which is Ex. PW2/A.
8. PW-3-Sh. Kapil Kumar has tendered his evidence by way of
affidavit which is Ex. PW3/A.
Plaintiffs have not examined any other witness and PE was
closed vide order dated 16.08.2022.
DEFENDANT’S EVIDENCE
9. Defendant no.1 has examined three witnesses to prove their
case including defendant no.1 as DW-1. DW-1 has tendered his evidence
by way of affidavit which is Ex. DW1/A and relied upon following
documents:
a. Ex. DW1/1 (OSR)-Copy of GPA dated 17.11.1999.
b. Ex. DW1/2- (OSR)- Copy of Will.
c. Ex. DW1/3- (OSR)- Copy of Agreement to sell.
d. Ex. DW1/4- (OSR)- Copy of Affidavit.
e. Mark-A- Copy of receipt (DeEx. DW1/5)
f. EX. DW1/6- Copy of GPA dated 01.2.1999.
g. Ex. DW1/7-(OSR)- Copy of Special POA.
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 6 of 29
h. Ex. DW1/8 & Ex. DW1/9 (OSR)- Copy of Will executed by Sh.
Omkar Nath and Sh. Niranjan Lal.
i. Ex. DW1/10(OSR)- Copy of Agreement to Sell.
j. Ex. DW1/11-(OSR)- Copy of affidavit.
k. Ex. DW1/12- (OSR)- Copy of receipt.
l. Mark-B-Copy of possession letter.
10. Defendants further examined Sh. Gopal Dutt, Record Keeper,
Sub-Registrar-IV, Seelampur as DW-2 who proved Wills dated 02.02.1999
bearing registration No.3906 and 3097 both dated 02.02.1999. He disclosed
that because the copy of Wills were not traceable being part of loose
record, he produced the Peshi Register dated 02.02.1999. He also proved
the original GPA already Ex. DW1/1 executed by Sh. Pankaj in favour of
Sh. Rakesh Kumar S/o Sh. Kalu Ram which was duly compared with the
original GPA. He got exhibited the copy of Will dated 17.11.1999 as Ex.
D1W2/3-original, executed by Sh. Pankaj in favour of Sh. Rakesh Kumar
S/o Sh. Kalu Ram. The same was also compared with the original Will
Ex.D1/W2/3.
11. Defendant no.1 further examined Sh. Ashok Kumar S/o late
Sh. Kishan Lal as DW-3 who also relied upon Sale Deed already Ex.
CW1/A.
Thereafter, D.E. was closed vide order dated 23.12.2024.
FINAL ARGUMENTS
12. Final arguments heard. Record is perused and considered.
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 7 of 29
ISSUES-WIFE FINDINGS:
13. I have given thoughtful consideration to the submissions made
on behalf of both the parties, considered the relevant provisions of the law,
pleadings of both the parties, testimonies of witnesses and material placed
on record. The issue wise finding is as under:
Issue No.1.
Whether the plaintiff has no locus standi to file the present
suit?OPD
The onus to prove this issue is upon the defendant. Defendant
has contended that plaintiff has no locus standi to file the present suit
against the defendant as there is no privity of relationship between the
plaintiff and defendant. It is further contended that the defendant no.1
resides in the suit property by holding his independent right by way of
registered sale deed dated 11.05.2006. The plaintiff has denied the
submission of defendant. The plaintiff in his plaint has averred that Mr.
Onkar Nath was residing in the suit property as his tenant, when the
defendant no.1 has trespassed the suit property and started to construct it
unauthorizedly without any prior permission and sanction from the plaintiff
as well as the MCD. Subsequently, the plaintiff filed the suit for permanent
and mandatory injunction against the defendant wherein the defendant no.1
filed a set of document like GPA, Agreement to Sell, Possession Letter,
Affidavit and Receipt purported to be sold out the suit property on
17.11.1999 by one Mr. Pankaj s/o Sh. Karam Chand in favour of Sh.
Rakesh Kumar (defendant no.2) s/o Sh. Kalu Ram and further Sh. Rakesh
Kumar (defendant no.2) has purported to have sold the suit property to Sh.
Nathu Ram (defendant no.1) s/o Sh. Dhani Ram by sale deed dt.
15.05.2006.
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 8 of 29
The plaintiff is seeking the relief of declaration thereby
declaring the sale deed dt. 15.05.2006 as null and void and further claiming
himself to be the owner. Section 34 of Specific Relief Act provides that any
person entitled to any right as to any property may institute a suit against
any person denying or interested to deny his title to such right.
Going by the averments of plaintiff, the defendant no.1
trespassed the suit property and is claiming himself to be the owner of the
suit property by placing on record a sale deed and also few other
documents in an earlier suit filed by plaintiff against the defendants. In this
way, the defendant no.1 has disputed the title of plaintiff to the suit
property, whereas the plaintiff is claiming himself as owner of suit
property.
In these circumstances, it can safely be concluded that the
plaintiff may ask the relief of declaration against the defendant no.1 who is
denying his title.
In view of above discussion, this issue is decided in favour of
plaintiff.
14. Issue No.2
Whether the suit is not maintainable as the same has been filed
by the attorney?OPD
The onus to prove this issue is upon the defendant. The
defendant no.1 took preliminary objection that the plaintiff is claiming
himself as attorney of Smt. Bimla Devi, therefore, the plaintiff can sign the
plaint on behalf of Smt. Bimla Devi but could not file suit in his own name.
Per contra, the plaintiff is denying to have claimed himself as attorney of
Smt. Bimla Devi.
The plaintiff is claiming himself to be the owner of property
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 9 of 29
bearing no. X-138, Tagore Gali, Mohalla Ram Nagar, Gandhi Nagar,
Delhi-110031 measuring area 1645 sq. yds., having purchased from Smt.
Bimla Devi on 17.07.2002 vide GPA, Agreement to Sell, Affidavit and
Will. Perusal of GPA dt. 17.07.2002. It is evident from para 6 of the GPA
executed by Smt. Bimla Devi in favour of plaintiff that the Power of
Attorney can file all kinds of applications, affidavit, petitions, suits for
possession, reviews, revisions, appeals and take all miscellaneous
proceedings in the Court with regard to suit property. Therefore, as per
GPA Ex.PW1/1, the plaintiff has right to file the present suit.
Hence, this issue is decided in favour of plaintiff and against
the defendant.
15. Issue No.3.
Whether the suit is bad for mis-joinder and non joinder of
parties as alleged by the defendant?OPD
The onus to prove this issue is upon the defendant. Firstly,
under the law misjoinder of parties cannot be fatal to plaintiff’s case. It is
only non joinder of necessary party that renders a suit bad (proviso to Order
1 Rule 9 CPC). Therefore, even on the premise that any of the defendants
may have been misjoined, the suit cannot be held to be bad.
Secondly, so far as the issue of non-joinder of necessary party
is concerned, the defendant has contended that all the co-sharers in Ganeshi
Lal Building are necessary party to the present suit as plaintiff is stated to
be the attorney appointed by one co-sharer. It is further contended by the
defendant that the defendant no.1 purchased the suit property from one Sh.
Rakesh who purchased the suit property from Sh. Pankaj who was the
attorney of Sh. Onkar Nath and Sh. Niranjan Lal vide attorney dt.
01.02.1999. Therefore, said Onkar Nath, Niranjan Lal and Pankaj are
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 10 of 29
necessary party to the present matter. Careful perusal of plaint reflects that
the plaintiff has claimed himself to be the owner on the basis of registered
GPA (Ex. PW1/1), registered Will (Ex. PW1/3) and notarized Agreement to
Sell and receipt all dt. 17.07.2002 executed by Smt. Bimla Devi. It is no
where mentioned in the plaint that the plaintiff was appointed as an
attorney by one of the co-sharer of Ganeshi Das Building. Admittedly, the
defendant no.1 is in the possession of the suit property and claiming that
he is the owner of suit property having purchased from defendant no.2. The
defendant no.1 further denied the ownership of plaintiff. Hence, there is no
other person against whom the plaintiff is required to claim any relief
except the defendant no.1 who is in the possession of the suit property and
is denying the title of plaintiff. It is further relevant to note here that there is
no other person whose rights/interest are involved in the present suit.
That apart, having gone through the record, I do not think that
any other person ought to have been necessarily joined as a party. For these
reasons, this issue is decided in plaintiff’s favour.
16. Issue No.4
Whether the suit is not maintainable under Order 7 rule 11
CPC as alleged by the defendant?OPD
The onus to prove this issue is upon the defendant. The
defendant has contended that neither the plaintiff had paid proper court fees
nor this court has pecuniary jurisdiction to entertain the present suit as such
suit deserves rejection u/o 7 rule 11 CPC. It is further contended that the
plaintiff has valued the suit only on Rs.5 lacs whereas the market price of
property is Rs.25 lacs.
The valuation of relief of permanent injunction at Rs.130/- and
payment of fixed court fees thereon cannot be said to be erroneous (Delhi
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 11 of 29
High Court Rules, Chapter 3, Part C & D, Volume-I). Valuation of the relief
of declaration to declare the instrument of sale deed dt. 15.05.2006
executed by defendant no.2 in favour of defendant no.1 qua the suit
property at Rs.200/- and payment of court fees thereon is also adequate as
it is settled law that if the plaintiff seeks declaration of a document as null
and void which was not executed by him, he is required to pay fixed court
fees.
17. Perusal of record reveals that the plaintiff has valued his suit
for the relief of possession at Rs. 5 lakh and based on this amount the court
fee of Rs.7250/- has been paid.
Section 7 of the Court Fees Act, 1870 provides for
computation of fees payable in suits. As per section 7 (v) (e) of the Court
Fees Act, 1870, in suits for possession of houses, the court fees is computed
according to its market value. In the present case, the plaintiff has stated the
value of suit property Rs. 5 lakh. According to defendant the value of suit
property is about Rs. 25 lacs. Except bald averments, the defendants have
not come forward to bring any evidence to prove his plea. Therefore, the
value of suit property stated by plaintiff is held to be true. Further, the
plaintiff has undertaken to pay the court fee on the relief of mesne profit at
the time of passing the decree.
In view of above, it is held that the plaintiff has paid the
appropriate court fee on the reliefs claimed by him and there is no deficient
court fee that is payable. Therefore, this issue is decided in favour of
plaintiff and against the defendants.
18. Issue No.5.
“Whether the suit is barred by limitation?OPD”
The onus to prove this issue is upon the defendant. The
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 12 of 29
defendant has taken preliminary objection stating that the suit of plaintiff is
barred by law of limitation as on 01.02.1999 Onkar Nath and Niranjan Lal
had executed attorney in favour of one Sh. Pankaj who further sold the suit
property. It is further contended that the plaintiff is not in possession of the
suit property directly or through his tenant from 01.02.1999.
Per contra, the plaintiff has contended that his suit is not
barred by law of limitation. Suit of plaintiff for possession is based on title
therefore, Article 65 to the Schedule of Limitation Act is applicable to the
present suit.
37. Article 65 prescribes a 12 year limitation period for a suit for
possession of immovable property or any interest therein based on title,
starting from when the defendant’s possession becomes adverse to the
plaintiff. In the case titled as Sarup Singh vs. Banto, (2005) 8 SCC 330, the
Hon’ble Apex Court observed that :-
“28. The statutory provisions of the Limitation Act have undergone a
change when compared to the terms of Articles 142 and 144 of the
Schedule appended to the Limitation Act, 1908, in terms whereof it
was imperative upon the plaintiff not only to prove his title but also to
prove his possession within twelve years, preceding the date of
institution of the suit. However, a change in legal position has been
effected in view of Articles 64 and 65 of the Limitation Act, 1963. In
the instant case, the plaintiff-respondents have proved their title and,
thus, it was for the first defendant to prove acquisition of title by
adverse possession. As noticed hereinbefore, the first defendant-
appellant did not raise any plea of adverse possession. In that view of
the matter the suit was not barred.
29. In terms of Article 65 the starting point of limitation does not
commence from the date when the right of ownership arises to the
plaintiff but commences from the date the defendant’s possession
becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath
Muljibhai Nayak [(2004) 3 SCC 376])”
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 13 of 29
38. In the light of Sarup Singh‘s case there can be no doubt that
once the plaintiff proves his title over the suit property, it is for the
defendant resisting the same claiming adverse possession that he perfected
titled through adverse possession and in that regard, in terms of Article 65
of the Limitation Act, 1963 the starting point of limitation would not
commence from the date when the right of ownership arises to the plaintiff
but would commence only from the date when the possession of defendants
becomes adverse to the title of plaintiff.
19. In the case in hand, the plaintiff remained unsuccessful to
prove his title to the suit property. Further, the plaintiff has not mentioned
in his pleadings any specific date as to since when the defendant had been
occupying the suit property. The plaintiff has contended that the original
tenant Sh. Onkar Nath was residing in the suit property when Mr. Nathu
Ram (defendant no.1) had trespassed the said premises. In his pleadings,
the plaintiff has not mentioned any specific date, month or year as to when
the defendant no.1 trespassed the suit property.
20. The plaintiff has remained unsuccessful to prove the landlord-
tenant relationship between Sh. Onkar Nath and Smt. Bimla Devi
(erstwhile owner as per plaintiff) in the absence of any evidence. For a
moment if it is assumed that Sh. Onkar Nath was a tenant in the suit
property, the plaintiff has nowhere pleaded in his plaint as to since when
Sh. Onkar Nath did not pay rent to him or Smt. Bimla Devi. The plaintiff
has not produced any document such as counter foil receipt showing the
last payment of rent by Sh. Onkar Nath.
21. During cross-examination PW1/plaintiff affirmed that in 1998
to 1999 the suit property was in occupation of Sh. Onkar Nath and Sh.
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 14 of 29
Niranjan Lal. PW1 further deposed that he does not have any document to
show that Sh. Onkar Nath was residing in the suit property as a tenant. As
per the plaintiff’s own version he purchased the suit property in the year
2002, however, Sh. Onkar Nath and Sh. Niranjan Lal were in possession of
suit property since 1998 to 1999. No rent receipt or rent agreement between
the plaintiff and Sh. Onkar Nath came on record. The possession of Sh.
Onkar Nath (previous owner as per defendant) became adverse to the
plaintiff as well as Smt. Bimla Devi in the year 1998 to 1999 since he was
admittedly in the occupation of the suit property and did not pay any rent to
Smt. Bimla Devi as remained unproved. The present suit was filed by the
plaintiff on 08.09.2011. The suit for possession ought to have been filed by
the plaintiff before the year 2010.
In view of above discussion, it can be concluded that the
present suit of plaintiff is barred by law of limitation. Hence, this issue is
decided in favour of defendant and against the plaintiff.
22. Issue no.6 & 7
Whether the plaintiff is entitled for a decree of possession as prayed
for?OPP
“Whether the plaintiff is entitled for a decree of declaration that the
sale deed dated 15.05.2006 is null and void? OPP”
The burden to prove this issue was upon the plaintiff. Plaintiff has
contended that he is the exclusive owner of suit property vide GPA,
Agreement to Sell, Affidavit, Will, Receipt dt. 17.07.2002. In order to
prove his claim, plaintiff had relied upon documents i.e. Ex.PW1/1 GPA,
Ex.PW1/2 Agreement to Sell, Ex.PW1/3 Deed of Will, Ex.PW1/4 Affidavit
and Ex.PW1/5 Receipt. It is further the case of plaintiff that various tenantsCS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 15 of 29
have been living in the property out of which the original tenant Mr. Onkar
Nath was residing in the suit property i.e. two rooms bearing private No.33
in property no. X-138, Tagore Gali, Mohalla Ram Nagar, Gandhi Nagar,
Delhi-110031. The defendant no.1 had trespassed the said rooms illegally
and unauthorizedly started construction without any prior permission and
sanction from the plaintiff or MCD. It is further the case of the plaintiff that
to restrain the defendant no.1 he filed a suit for permanent injunction
against the defendant no.1 & 2 wherein the defendant no.1 filed a set of
documents like GPA, Agreement to Sell, Possession Letter, Affidavit,
Receipt purported to be sold out the suit property on 17.11.1999 by one
Pankaj in favour of Sh. Rakesh Kumar defendant no.2 who further sold the
suit property in favour of defendant no.1 by way of sale deed dt.
15.05.2006.
23. It is pertinent to note here that the documents relied upon by
the plaintiff are GPA sales documents out of which only GPA and Will are
registered and all other documents are notarized. For the plaintiff to
succeed, he has to establish that he has a legal title to the suit property and
consequently, is entitled to a decree of possession. The defendant cannot be
dispossessed unless the plaintiff has established a better title or rights over
the suit 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 (Poona Ram
vs. Moti Ram (dead) through LRs and ors. MANU/SC/0097/2019).
24. It is settled law that a transfer of an immovable property by
way of sale can only be by a deed of conveyance. An agreement to sell is
not a document of title or deed of transfer of property and does not confer
ownership right or title. During the arguments Ld. Counsel for plaintiff
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 16 of 29
placed reliance upon Vimla Gautam & Ors. vs. Mohini Jain & Anr. ILR
2012 III 41. and argued that even though, specific ownership rights are not
created by means of documents being the agreement to sell, General Power
of attorney etc as these are not sales, however, on the basis of such
documents right to the extent created by section 53A of Transfer of
Property Act 1882 and Section 202 of the Indian Contract Act 1872 are
preserved.
25. In the present case, the agreement to sell Ex.PW1/2 is not
registered but only notarized. Section 17 A of the Registration Act 1908
mandates the registration of documents containing contracts to transfer
immovable property for consideration, specifically for the purpose of
Section 53 A of the Transfer of Property Act 1882. As far as it is concerned
with the Ex.PW1/1 GPA, it is registered document, the executor of GPA /
Smt. Bimla Devi has already died. During cross examination, PW1 deposed
that Smt. Bimla Devi (executant of GPA) has expired, however, he is not
aware of the date of death of Smt. Bimla Devi. Ld. Counsel for plaintiff
pointed out a judgment titled as Ramesh Chand Vs. Suresh Chand ILR
2012 (V) 48 and submitted that power of attorney given for consideration is
valid even after death of executant. Here it is relevant to refer a recent
judgment of Hon’ble Apex Court, in a case titled as M.S. Ananthamurty &
Anr. Vs. V.J. Manjula Etc, DOD 27.02.2025, wherein it was observed:-
“iii. Combined Reading of the General Power of Attorney and the
Agreement to Sell
49.The issue at hand may also be looked at from another angle. The
appellants have submitted that that since the GPA and the
agreement to sell were executed by the same person in favour ofCS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 17 of 29
the same beneficiary, it ought to have been read together.
50.Here, we deem it appropriate to take note of Sections 17 and 49
of the Registration Act respectively. The provisions have been
reproduced herein below:-
“17. Documents of which registration is compulsory.
–(1) The following documents shall be registered, if
the property to which they relate is situate in a district in
which, and if SLP (C) Nos. 13618-13619 of 2020 Page
47 of 61 they have been executed on or after the date on
which, Act No. XVI of 1864, or the Indian Registration
Act, 1866, or the Indian Registration Act, 1871, or the
Indian Registration Act, 1877, or this Act came or
comes into force, namely:–
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or
operate to create, declare, assign, limit or extinguish,
whether in present or in future, any right, title or
interest, whether vested or contingent, of the value of
one hundred rupees and upwards, to or in immovable
property;
(c) non-testamentary instruments which acknowledge
the receipt or payment of any consideration on account
of the creation, declaration, assignment, limitation or
extinction of any such right, title or interest; and (d)
leases of immovable property from year to year, or for
any term exceeding one year, or reserving a yearly rent;
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 18 of 29
(e) non-testamentary instruments transferring or
assigning any decree or order of a Court or any award
when such decree or order or award purports or operates
to create, declare, assign, limit or extinguish, whether in
present or in future, any right, title or interest, whether
vested or contingent, of the value of one hundred rupees
and upwards, to or in immovable property: Provided
that the [State Government] may, by order published in
the [Official Gazette], exempt from the operation of this
sub-section any lease executed in any district, or part of
a district, the terms granted by which do not exceed five
years and the annual rents reserved by which do not
exceed fifty rupees.
(1A) The documents containing contracts to transfer for
consideration, any immovable property for the purpose
of section 53A of the Transfer of Property Act, 1882 (4
of 1882) shall be registered if they have been executed
on or SLP (C) Nos. 13618-13619 of 2020 Page 48 of 61
after the commencement of the Registration and Other
Related laws (Amendment) Act, 2001 (48 of 2001) and
if such documents are not registered on or after such
commencement, then, they shall have no effect for the
purposes of the said section 53A.
(2) Nothing in clauses (b) and (c) of sub-section (1)
applies to–
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 19 of 29
Company, notwithstanding that the assets of such
Company consist in whole or in part of immovable
property; or
(iii) any debenture issued by any such Company and not
creating, declaring, assigning, limiting or extinguishing
any right, title or interest, to or in immovable property
except in so far as it entitles the holder to the security
afforded by a registered instrument whereby the
Company has mortgaged, conveyed or otherwise
transferred the whole or part of its immovable property
or any interest therein to trustees upon trust for the
benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture
issued by any such Company; or
(v) any document other than the documents specified in
sub-section (1A) not itself creating, declaring,
assigning, limiting or extinguishing any right, title or
interest of the value of one hundred rupees and upwards
to or in immovable property, but merely creating a right
to obtain another document which will, when executed,
create, declare, assign, limit or extinguish any such
right, title or interest; or
(vi) any decree or order of a Court [except a decree or
order expressed to be made on a compromise and
comprising immovable property other than that which is
the subject-matter of the suit or proceeding]; or SLP (C)
Nos. 13618-13619 of 2020 Page 49 of 61 (vii) any grantCS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 20 of 29
of immovable property by [Government]; or
(viii) any instrument of partition made by a Revenue
Officer; or
(ix) any order granting a loan or instrument of collateral
security granted under the Land Improvement Act,
1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists,
Loans Act, 1884, or instrument for securing the
repayment of a loan made under that Act; or (xa) any
order made under the Charitable Endowments Act, 1890
(6 of 1890), vesting any property in a Treasurer of
Charitable Endowments or divesting any such Treasurer
of any property; or (xi) any endorsement on a mortgage-
deed acknowledging the payment of the whole or any
part of the mortgage-money, and any other receipt for
payment of money due under a mortgage when the
receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of
any property sold by public auction by a Civil or
Revenue-Officer.
Explanation.–A document purporting or operating to
effect a contract for the sale of immovable property
shall not be deemed to require or ever to have required
registration by reason only of the fact that such
document contains a recital of the payment of any
earnest money or of the whole or any part of the
purchase money.
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 21 of 29
(3) Authorities to adopt a son, executed after the 1st day
of January, 1872, and not conferred by a will, shall also
be registered.”
–xxx–
49. Effect of non-registration of documents required to
be registered.–No document required by section 17 [or
by SLP (C) Nos. 13618-13619 of 2020 Page 50 of 61
any provision of the Transfer of Property Act, 1882 (4
of 1882)], to be registered shall–
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting
such property or conferring such power, unless it has
been registered:
[Provided that an unregistered document affecting
immovable property and required by this Act or the
Transfer of Property Act, 1882 (4 of 1882), to be
registered may be received as evidence of a contract in a
suit for specific performance under Chapter II of the
Specific Relief Act, 1877 (3 of 1877) *** or as evidence
of any collateral transaction not required to be effected
by registered instrument.]”
51. Section 17(1)(b) prescribes that any document which purports or
intends to create, declare, assign, limit or extinguish any right, title or
interest, whether vested or contingent, of the value of one hundred
rupees and upwards to or in immovable property is compulsorily
registrable. Whereas, Section 49 prescribes that the documents whichCS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 22 of 29
are required to be registered under Section 17 will not affect any
immovable property unless it has been registered.
52. The aforesaid has been emphatically laid down by this Court in
Shyam Narayan Prasad v. Krishna Prasad & Ors., reported in (2018) 7
SCC 646. The relevant observations are reproduced herein below:-
“20. Section 17(1)(b) of the Registration Act mandates that
any document which has the effect of creating and taking
away the rights in respect of an immovable property must
be registered and Section 49 of the Registration Act
imposes bar on the admissibility of an unregistered SLP (C)
Nos. 13618-13619 of 2020 Page 51 of 61 document and
deals with the documents that are required to be registered
under Section 17 of the Registration Act. Since, the deed of
exchange has the effect of creating and taking away the
rights in respect of an immovable property, namely, RCC
building, it requires registration under Section 17. Since the
deed of exchange has not been registered, it cannot be
taken into account to the extent of the transfer of an
immovable property.”
(Emphasis supplied)
53.Even from the combined reading of the POA and the agreement to
sell, the submission of the appellants fails as combined reading of the
two documents would mean that by executing the POA along with
agreement to sell, the holder had an interest in the immovable
property. If interest had been transferred by way of a written
document, it had to be compulsorily registered as per Section 17(1)
(b) of the Registration Act. The law recognizes two modes of transfer
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 23 of 29
by sale, first, through a registered instrument, and second, by
delivery of property if its value is less than Rs. 100/-.
54. This principle was recently elaborated by the High Court of
Karnataka in Channegowda & Anr. v. N.S. Vishwanath & Ors.,
reported in 2023 SCC OnLine Kar 153. The relevant portion is
reproduced as under:-
“14. An attempt is made on behalf of the plaintiffs to contend
that the second plaintiff has sold the property as a General
Power of Attorney Holder and not as a title holder. SLP (C) Nos.
13618-13619 of 2020 Page 52 of 61 It is argued that the Power
of attorney is not compulsorily registrable. The submission is
noted with care. Suffice it to note that a deed of power of
attorney is not one of the instruments specified under Section 17
of the Registration Act compulsorily registrable. However, if a
power has been created empowering the attorney to sell the
property i.e., if a document that gives a right to the attorney
holder to sell the immovable property, then it would be a
document creating an interest in immovable property, which
would require compulsory registration. In the present case, the
General Power of Attorney alleged to have been executed by
defendants 1 to 3 in favor of the second plaintiff is coupled with
interest i.e., power of alienation is conferred but it is not
registered. The Apex Court in the SURAJ LAMP’s case has held
that the General Power of Attorney Sale, or Sale
Agreements/Will do not convey title and do not amount to
transfer, nor can they be considered valid modes of transfer of
immovable property. Therefore, it can be safely concluded thatCS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 24 of 29
the declaration of facts/statement of facts (affidavit) and General
Power of Attorney do not convey title. They are inadmissible in
evidence.”
(Emphasis supplied)
55. The High Court rightly held that even though the GPA and the
agreement to sell were contemporaneous documents executed by the
original owner in favour of the holder, this alone cannot be a factor to
reach the conclusion that she had an interest in the POA. Thus, even
though the GPA and the agreement to sell were contemporaneous
documents executed by the original owner in favour of the same
beneficiary, this cannot be the sole factor to conclude that she had an
interest in the subject-matter. Even if such an argument were to
persuade this Court, the SLP (C) Nos. 13618-13619 of 2020 Page 53
of 61 document must have been registered as per Section 17(1)(b) of
the Registration Act. In the absence of such registration, it would not
be open for the holder of the POA to content that she had a valid
right, title and interest in the immovable property to execute the
registered sale deed in favour of appellant no. 2.
56.The practice of transferring an immovable property vide a GPA
and agreement to sell has been discouraged by the following
observations of this Court in Suraj Lamp (supra). The relevant
observations are reproduced herein below:-
“24. We therefore reiterate that immovable property can be
legally and lawfully transferred/conveyed only by a registered
deed of conveyance. 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 recognised or valid mode
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 25 of 29
of transfer of immovable property. The courts will not treat
such transactions as completed or concluded transfers or as
conveyances as they neither convey title nor create any
interest in an immovable property. They cannot be recognised
as deeds of title, except to the limited extent of Section 53-A
of the TP Act. Such transactions cannot be relied upon or made
the basis for mutations in municipal or revenue records. What
is stated above will apply not only to deeds of conveyance in
regard to freehold property but also to transfer of leasehold
property. A lease can be validly transferred only under a
registered assignment of lease. It is time that an end is put to
the pernicious practice of SA/GPA/will transactions known as
GPA sales.”
(Emphasis supplied)
26. It is evident from the GPA (Ex. PW1/1) that no payment of
consideration amount is mentioned in the GPA. Therefore, the said GPA
cannot be considered to be executed as GPA coupled with interest. It is
considered only a General Power of Attorney and has seized to exist after
the death of Smt. Bimla Devi, therefore, it has lost its validity after the
death of its executant.
Furthermore, the plaintiff to prove his claim over the suit
property was required to prove deed of Will Ex. PW1/3 as per the
requirement of Section 63 of Indian Succession Act and section 68 of
Indian Evidence Act but the plaintiff has not put efforts to prove the Will,
hence, it remained unproved in the absence any evidence.
27. In addition to this, the plaintiff has remained unsuccessful to
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 26 of 29
prove his possession over the suit property or to the entire property of
which the suit property is a part at any point of time. As per the case of
plaintiff, the property bearing no.X138, Ganeshi Dass Building, Tagor Gali,
Gandhi Nagar, Delhi is in the occupation of various tenants and Sh. Onkar
Nath was one of those tenant. The plaintiff has not proved on record any
document showing the landlord tenant relationship between him or Onkar
Nath or any other tenants. Rather, he affirmed in his cross examination that
he never possessed any part of the property in which the disputed property
is situated. Hence, it is proved that plaintiff was never in the actual
possession of suit property directly or through his tenants. During cross
examination, PW1 stated that ” I cannot tell since when Onkar Nath was
tenant in the suit property. Sh. Onkar Nath stayed in the suit property till
2004 and thereafter he went away after locking the room and in the year
2008, thereafter, defendant no.1 trespassed the suit property. I did not lodge
the police complaint about the trespassing the suit property by defendant
no.1. (vol. I lodged the complaint with the police about demolition and
illegal construction being carried by defendant no.1 Onkar Nath was the
tenant at the monthly rent of Rs.25/- only but never paid any rent to me. I
did not file any suit for recovery of arrear of rents against Onkar Nath. ”
During cross examination conducted on 21.02.2018, PW1 affirmed that in
1998 to 1999 property no. 33 i.e. suit property was in the occupation of Sh.
Onkar Nath and Sh. Niranjan Lal. As per testimony of PW1, Onkar Nath
was residing in the suit property in the year 1998 to 1999 and went away
locking the room in the year 2004 and he never paid any rent to the plaintiff
but the plaintiff did not take any action against Onkar Nath for recovery of
arrears of rent. PW2 in his cross examination stated that LRs of Sh. Onkar
Nath are still residing in the property bearing no. X138, Tagore Gali,CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 27 of 29
Gandhi Nagar, Delhi. These contradictory evidence made by plaintiff’s
witnesses with respect to leaving the suit property by Sh. Onkar Nath
creates suspicion upon the version of plaintiff. It is worthwhile to note that
plaintiff has enough opportunity to examine Sh. Onkar Nath or his LRs
who could have brought the truth before the court but the plaintiff opted to
not bring them in to the witness box.
28. Ld. Counsel for plaintiff further referred the judgment of
Hon’ble High court of Delhi in the case of O.P. Aggarwal & Ors. Vs.
Akshay Lal & Ors.ILR 2012 (IV) Delhi 645 wherein it was observed that
the possession of previous chain of title documents is very strong proof of
ownership of the suit property. In this regard, ld. Counsel has misplaced
reliance upon this judgment as the facts of that case are distinguishable
from the present case. In the present case, the plaintiff has not proved his
possession of previous chain of title documents as mentioned in his General
Power of Attorney and other documents.
In view of above, it can safely be concluded that plaintiff
remained unsuccessful to prove his entitlement to the suit property.
Therefore, there can be no cloud upon his title and he is further not entitled
for the relief of declaration. In view of above, both these issues are
answered in favour of defendant and against the plaintiff.
29. Issue No.8.
Whether the plaintiff is entitled for a decree of mesne profits, if so at
what rate and for which period?OPP
The onus to prove this issue is upon the plaintiff. Plaintiff has also
claimed damage/mesne profit for the use and occupation charges of the suit
property by the defendant. The outcome of issue no.6 & 7, a fortiori, entails
that plaintiff is not entitled to the relief of damages against the defendant.
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 28 of 29
Hence, issue no.8 is also decided in favour of defendant and against the
plaintiff.
30. In view of the above discussion and observation, it is held that
plaintiff is not entitled for the relief as claimed in the plaint. Therefore, suit
of the plaintiff stands dismissed. No order as to cost.
Digitally
signed by
Decree sheet be prepared.
POOJA POOJA JAIN
Date:
File be consigned to Record Room. JAIN 2025.03.29
16:49:11
+0530
Typed to the dictation directly, (Pooja Jain)
corrected and pronounced in District Judge-03,
open court on 29.03.2025 East/KKD Courts, Delhi.
CS No. 1084/16 Ravinder Goel Vs. Nathu Ram & Anr. Page 29 of 29