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SUPREME COURT OF INDIA
Dipankar Datta, Pankaj Mithal, JJ.
Ghanshyam – Appellant
Versus
Yogendra Rathi – Respondent
Civil Appeal Nos.7527-7528 of 2012
Decided On : 02-06-2023
(A) Transfer of Property Act, 1882 – Section 54 – Civil Procedure Code, 1908 – Order XX Rule 12 – Agreement to sell – Eviction of tenant – Termination of licence – Agreement to sell is not a document of title or a deed of transfer of property by sale and as such, may not confer absolute title upon plaintiff-respondent over suit property – Nonetheless, plaintiff-respondent is de-facto having possessory rights over suit property in part performance of agreement to sell – This possessory right of plaintiff-respondent is not liable to be disturbed by transferor (Defendant-appellant) – Entry of defendant-appellant over part of suit property subsequently is simply as a licensee of plaintiff-respondent – He does not continue to occupy it in capacity of owner – Defendant-appellant is simply a licensee and licence having been terminated, he has no right to remain in possession but to restore possession to person having rightful possessory title over it – Power of attorney executed by defendant-appellant is of no consequence as on strength of said power of attorney, neither sale deed has been executed nor any action pursuant thereof has been taken by power of attorney holder which may confer title upon plaintiff-respondent – Similarly, Will executed by defendant-appellant in favour of plaintiff-respondent is meaningless as Will comes into effect only after death of executant and not before it – Said stage has not arrived in present case – Plaintiff-respondent has rightly been held to be entitled for a decree of eviction with mesne profits. (Paras 9, 10, 11, 12, 13 and 17)
(B) Transfer of Property Act, 1882 – Section 53A – Agreement to sell – Part Performance of Contract – Legally, an agreement to sell may not be regarded as a transaction of sale or a document transferring proprietary rights in an immovable property but prospective purchaser having performed his part of contract and lawfully in possession acquires possessory title which is liable to be protected in view of Section 53A of Transfer of Property Act, 1882 – Such possessory rights of prospective purchaser cannot be invaded by transferor or any person claiming under him. (Para 15)
(C) Powers of Attorney Act, 1882 – Section 2 – Execution of Power of Attorney – In connection with general power of attorney and Will so executed, practice prevalent in any State or High Court recognizing these documents to be documents of title or documents conferring right in any immovable property is in violation of statutory law – Any such practice or tradition prevalent would not override specific provisions of law which require execution of a document of title or transfer and its registration so as to confer right and title in immovable property of over Rs.100/-. (Para 14)
Facts of the case:
Suit is for eviction of defendant-appellant from the suit premises and for recovery of mesne profits on the ground that after the defendant-appellant has parted with the possession of property in favour of the plaintiff-respondent in part performance of agreement, he has no right to disturb his possession. He is simply a licensee and the licence having been terminated, he has no right to remain in possession but to restore possession to the person having rightful possessory title over it. After having lost from all the three courts below, defendant to the suit has preferred this appeal.
Findings of Court:
Defendant-appellant parted with the possession of the suit property by putting the plaintiff-respondent in possession of it under an agreement to sell. The plaintiff-respondent in this way came to acquire possessory title over the same. The defendant-appellant, as such, ceased to be in possession of it as an owner rather occupied it as a licensee for a fixed period which stood determined by valid notice, leaving defendant-appellant with no subsisting right to remain in possession of the suit premises.
Result : Appeals dismissed.
JUDGMENT
Pankaj Mithal, J.
1. Heard Shri Rajul Shrivastav, learned counsel for the defendant-appellant. None appeared for the plaintiff-respondent despite service.
2. After having lost from all the three courts below, the defendant to the suit has preferred this appeal.
3. The plaintiff-respondent instituted a suit for eviction of the defendant-appellant from the suit premises which is part of H-768, J.J. Colony, Shakarpur, Delhi and for mesne profits on the averment that he is the owner of the said property by virtue of an agreement to sell dated 10.04.2002, power of attorney, a memo of possession and a receipt of payment of sale consideration as well as a “will” of the defendant-appellant bequeathing the said property in his favour; the possession of the suit premises was handed over to the plaintiff-respondent pursuant to the agreement to sell subsequently on the request of the defendant-appellant the plaintiff-respondent allowed the defendant-appellant to occupy the ground floor and one room on the first floor of it for a period of 3 months as a licencee; the defendant-appellant failed to vacate the suit premises despite expiry of the licence period and termination of licence vide notice dated 18.02.2003.
4. The defendant-appellant contested the suit on the ground that the aforesaid documents have been manipulated on blank papers but without disputing the execution of any of them or that the possession memo was not executed or that the sale consideration as per the agreement was not paid.
5. The trial court after framing three issues; the first being with regard to manipulation and fraudulently obtaining the alleged documents, the second regarding the right of the plaintiff-respondent to get the defendant-appellant evicted and the third with regard to entitlement of mesne profits, decided all the issues against the defendant-appellant. A categorical finding of fact was recorded that there is no evidence to prove that any of the above documents were obtained by misrepresentation, manipulation or by playing fraud upon the defendant-appellant. The plaintiff-respondent has proved his right over the property and since the licence of the defendant-appellant stands determined, he is entitled to a decree of eviction and payment of mesne profits though not at the rate claimed by the plaintiff-respondent for which there is evidence but at the rate of Rs.1000/- per month for the use and occupation of the premises in dispute.
6. The leave was granted and the appeal was admitted probably on the question as to whether the above documents namely the power of attorney, the will, the agreement to sell coupled with possession memo and the receipt of payment of sale consideration would confer any title upon the plaintiff-respondent so as to entitle him to a decree of eviction and mesne profits.
7. The aforesaid point was not raised by the defendant-appellant through his pleadings in the trial court or the first appellate court and, therefore, the High Court in second appeal held that he cannot be permitted to raise such an issue and that the appeal, as such, does not involve any substantial question of law.
8. The suit as per the pleadings is that of eviction and mesne profits on the averment that the plaintiff-respondent is the owner of the property. He has claimed ownership on the strength of the aforesaid documents especially the agreement to sell and the memo of possession as well as the receipt of payment of sale consideration.
9. No doubt, agreement to sell is not a document of title or a deed of transfer of property by sale and as such, may not confer absolute title upon the plaintiff-respondent over the suit property in view of Section 54 of the Transfer of Property Act, 1882, nonetheless, the agreement to sell, the payment of entire sale consideration as mentioned in the agreement itself and corroborated by the receipt of its payment and the fact that the plaintiff-respondent was put in possession of the suit property in accordance with law a
(1) Agreement to sell is not a document of title or a deed of transfer of property by sale.(2) General Power of Attorney and Will are not documents of title.
No right, title or interest in immovable property can be conferred without a registered document.
A party must establish legal title to property to claim possession or rent; mere execution of documents does not confer ownership without valid title.
A landlord cannot evict a tenant without issuing a notice under Section 106 of the Transfer of Property Act, even if the landlord claims ownership through a sale deed.
The ownership of property was established via a registered Conveyance Deed, negating claims of ownership based on prior agreements and determining the appellant as merely a licensee.
(1) Sale – There is difference between a sale deed and an agreement for sale, or a contract for sale.(2) Part Performance – Unless transferee in instrument of agreement to sale is able to prove that ....
Documents like GPA and Agreement to Sell may not confer ownership rights but create certain rights, such as possessory rights, which cannot be disturbed by a third party. The need for a Deed of Conve....
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