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IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J. MEHTA, J,
SMT. SHASHI BALA NAGPAL – Appellant
Versus
SH. RAMA KANT SHAH – Respondent
RSA No.13 of 2015
Decided On : 02-08-2016
DOCUMENTATION - Property Ownership - Transfer of Property Act, 1882, Indian Contract Act, 1872 - Section 53A, Section 202 - The judgment discusses the appellant/plaintiff's claim of ownership of the suit property based on documents executed before 24.09.2001, prior to the amendment of Section 53A of the Transfer of Property Act. The court refers to the doctrine of part performance under Section 53A and the irrevocable right of a person holding a power of attorney given for consideration under Section 202 of the Indian Contract Act. The court also highlights the devolution of interest after the death of the testator in terms of a Will.
Fact of the Case:
The appellant/plaintiff filed a suit for possession and mesne profits against the respondent/defendant, claiming ownership of the suit property and alleging trespass by the respondent/defendant. The trial court decreed the suit in favor of the appellant/plaintiff, but the first appellate court set aside the judgment on the grounds of non-ownership and non-joinder of parties.
Finding of the Court:
The trial court found in favor of the appellant/plaintiff, holding that the appellant/plaintiff had a better entitlement to possession of the suit property than the respondent/defendant. The first appellate court set aside the judgment on the grounds of non-ownership and non-joinder of parties.
Issues: The issues included the ownership of the suit property, the entitlement to possession, and the non-joinder of parties.
Ratio Decidendi: The court relied on the documents executed before 24.09.2001, prior to the amendment of Section 53A of the Transfer of Property Act, to establish the appellant/plaintiff's claim of ownership and entitlement to possession of the suit property.
Final Decision: The second appeal was allowed, setting aside the judgment of the first appellate court and restoring the judgment of the trial court in favor of the appellant/plaintiff.
VALMIKI J. MEHTA, J.
1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the appellant/plaintiff against the Judgment of the First Appellate Court dated 09.09.2014 by which the first appellate court has set aside the Judgment of the Trial Court dated 19.03.2014. Trial Court by its Judgment dated 19.03.2014 decreed the suit for possession and mesne profits filed by the appellant/plaintiff by holding that appellant/plaintiff cannot become the owner of the suit property by means of documentation of dated 12.04.1988, since appellant/plaintiff had a better entitlement to possession of the suit property than the respondent/defendant. The suit for possession was also decreed by holding that the case of the respondent/defendant was that he was a tenant in the suit property having been inducted by Sh. Satya Pal Singh and Sh. Ajit Singh, but, Sh. Satya Pal Singh and Sh. Ajit Singh deposed as PW2 and PW3 respectively in favour of the plaintiff/appellant deposing that they had not inducted respondent/defendant as a tenant in the suit property. The suit property is a property of approximately 70 sq. yds. shown in red colour in the site plan filed by the appellant/plaintiff, exhibited as Ex.PW1/2, forming part of R-54, Gopal Park, Model Town, Delhi. Appellant/plaintiff pleaded that he is the owner of the suit property and that respondent/defendant is a trespasser who trespassed in the suit property on 01.03.2004 and that plaintiff came to know about the trespassing only on 02.10.2004. The subject suit came to be filed on 30.10.2004 for possession and mesne profits.
2. Respondent/defendant contested the suit and filed his written statement. The main case of the respondent/defendant as per para 2 of the reply on merits of the written statement is that the respondent/defendant took the possession of the suit property on rent from Sh. Satya Pal Singh and Sh. Ajit Singh on 01.05.1997 and regularly paid rent to these persons.
3. Trial court on 08.02.2005 framed the following issues:-
“(1) Whether the plaintiff has suppressed vital and material facts from this court? OPD.
(2) Whether there is no cause of action against the defendant? OPD.
(3) Whether the present suit is not maintainable? OPD.
(4) Whether the defendant is in possession of the suit premises as a tenant under the landlordship of Sh. Satya Pal and Ranjeet Singh? OPD.
(5) Whether the plaintiff is the owner of the suit property bearing No.R-54, Gopal Park, Model Town, Delhi? OPP
(6) Whether the defendant is a trespasser in the suit property? OPP.
(7) Whether the plaintiff is entitled to damages @ Rs.3000/- per month from the defendant? OPP.
(8) Whether the plaintiff is entitled to relief prayed for? OPP.
(9) Relief.”
4. The plaintiff got herself examined as PW1 and she proved the following documents:-
“7. The plaintiff was then called upon to lead plaintiff evidence. She got examined herself as PW1 stating in her evidence by way of affidavit most of the averments of the plaint and relied upon the following documents: -
1. Special Power of Attorney dated 27.10.2004 as Ex.PW1/1.
2. Site plan as Ex. PW1/2.
3. General Power of Attorney dated 12.4.1988 as Ex.PW1/3.
4. Receipt dated 12.4.1988 as Ex.PW1/4.
5. Will dated 12.4.1988 as Ex.PW1/5.
6. Agreement to sell dated 12.4.1988 as Ex.PW1/6.
7. Affidavit dated 12.4.1988 as Ex.PW1/7.
8. Letter dated 20.8.2002 issued by the Government of NCT of Delhi as Ex.PW1/8.
9. Receipt dated 8.4.1980 executed by Kewal Park Small Scale Marketing Association as Ex.PW1/9.
10. Receipt dated 20.10.1980 executed by Kewal Park Small Scale Marketing Association as Ex.PW1/10.
11. Letter dated 28.7.1980 of the aforesaid association as Ex.PW1/11.
12. Allotment letter dated 21.9.1980 as Ex.PW1/12.
13. Letter dated 28.3.1983 as Ex.PW1/13.
14. Certificate of sale on non judicial stamp paper of Rs.18,540/- as Ex.PW1/14.
15. Copy of the Town Planning site plan as Mark X.”
5. Appellant/plaintiff also examined Sh. Satya Pal Singh and Sh. Ajit S
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