IMPORTANT POINT
No right, title or interest in immovable property can be conferred without a registered document.

ORDER :

VIKRAM NATH, J.

1. This appeal assails the correctness of the judgment and order dated 23.08.2018 passed by the High Court of Delhi in RFA No.191 of 2013 between Shakeel Ahmed and Syed Akhlaq Hussain, whereby the appeal was dismissed and the judgment and decree of the Trial Court decreeing the suit for possession and mesne profits has been affirmed.

2. The appellant is defendant in the suit for possession and mesne profits instituted by the respondent with respect to the property in question. The suit was filed on the basis of a Power of Attorney, an agreement to sell, an affidavit and a will executed in favour of the respondent. The appellant, admittedly, was in possession of the property in question. The suit was contested on several grounds that the appellant was the owner of the property having received the same on the basis of a Hiba (oral gift) from its owner Laiq Ahmed his own brother. Secondly, that the suit was not maintainable as none of the documents on the basis of which the suit was filed were neither admissible nor enforceable under law. Both parties led evidence - oral and documentary. The Trial Court framed as many as eleven issues, which read as follows:

“1. Whether the plaintiff has locus-standi to file the suit? OPP

2. Whether it is collusive suit of the plaintiff and the defendant’s brother, if so, its consequences? BPD

3. Whether the suit is bad for non-joinder of necessary party, if so, whom and its consequences? BPD

4. Whether the suit is barred by provision of Order II Rule 2 CPC for want of suit for declaration? OPP

5. Whether the plaintiff came to Court without clean hands by suppressing material facts, if so, its consequences? OPD

6. Whether the defendant was licencee in the suit property and it was terminated by notice dated 23.01.2008 by plaintiff’s predecessor in interest? OPP

7. Whether the plaintiff is entitled for decree of possession of suit property, as prayed in prayer clause (a), against the defendant? OPP

8. Whether the plaintiff is entitled for decree of permanent injunction, as prayed in prayer clause (b), against the defendant? OPP

9. Whether the plaintiff is entitled for decree of recovery of damages of Rs.2,10,000/- as prayed in prayer clause (c), against the defendant? OPP

10. Whether the plaintiff is entitled for decree of damages @ Rs.10,000/- per month, as prayed in prayer clause (c), against the defendant, if so, for what period? OPP

11. Relief.”

3. Findings recorded by the Trial Court were that all the issues were decided against the appellant and in favour of the respondent except issue no.8 and decree for possession along with mesne profits was granted.

4. While in regular appeal filed under section 96 of the Code of Civil Procedure, 1908, the High Court confirmed the finding with regard to the claim of the appellant regarding Hiba in his favour and held that the appellant had failed to prove the same. With respect to the other argument regarding suit being maintained on the basis of an unregistered document, the High Court, although in principle agreed but proceeded to uphold the decree of possession on the ground that the respondent had filed the suit as an Attorney for and on behalf of its owner Laiq Ahmed and that Laiq Ahmed was not objecting to the respondent seeking possession of the suit property. On this sole ground, it confirmed the decree of possession and dismissed the appeal.

5. The learned counsel for the appellant made the following submissions:

5.1. The Court below erred in decreeing the suit for possession and mesne profits on the basis of unregistered documents namely Agreement to Sell, Power of Attorney, Affidavit and a Will.

5.2. The Will, although filed, would be of no relevance in as much as it will come into force on the death of the testator i.e. Laiq Ahmed, who was said to be still alive at the time of the presentation of the suit. The other documents like Agreement to Sell and General Power of Attorney would not confer any ownership right on the respondent nor c