Important Point – No interest in immovable property can be claimed or transferred on strength of an unregistered document.

RSA 221/2016

1. By way of this Regular Second Appeal, the appellants are invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure impugning the judgment and order of the First Appellate Court passed in Civil Appeal No.RCA-02/2014 whereby the appeal filed by the respondent herein (defendant in Civil Suit No.177/2012) was allowed and the judgment and decree dated 4th January, 2014 passed by the learned Trial Court was set aside.

2. The facts in brief are that the Civil Suit No. 177/2012 was filed by Sh.Anand Dev Sharma (deceased now represented through his legal heirs Smt.Nirmala Devi, the appellant No.1 and their children, appellant Nos.2 to 11) for possession and damages/mesne profits in respect of the shop bearing No.RZ-450-C, Raj Nagar, Part-I, Palam Colony, New Delhi pleading that the respondent/defendant Jai Dutt was inducted as a tenant in respect of a shop shown as red in the site plan annexed with the plaint. At the time of institution of suit, the last paid rent was Rs.700/-per month. The tenancy of the respondent/defendant was terminated by the landlord vide legal notice dated 11th April, 2012. The tenancy stood terminated with effect from 30th April, 2012. It was also pleaded that suit property is not governed by Delhi Rent Control Act. The prevalent market rent of the suit property was pleaded to be Rs.10,000/- per month. The appellants/plaintiffs sought a decree for possession in respect of the suit property as well damages @ Rs.300/- per day.

3. In the written statement, the respondent/defendant took the plea that in the year 1986 he had entered into an agreement for sale in respect of suit property for a sum of Rs.40,000/- with the owner/landlord (plaintiff). At the time of execution of sale agreement, he had paid Rs.5,000/- towards advance and remaining Rs.35,000/- was paid in cash later in the presence of the witnesses. It was further pleaded that after execution of agreement Ex.P1 in 1986, he has not paid any rent to the landlord. The defence taken is that possession of the respondent/defendant was protected under Section 53A of the Transfer of Property Act, being transferred to him pursuant to part performance to the sale contract. The three rent receipts for the period February to April, 2012 placed on record by the appellants/plaintiffs were denied alleging the same to be forged and fabricated taking the plea that after entering into an agreement in 1986, there was no question of paying any rent to the appellants/plaintiff.

4. On the basis of the pleading of the parties, learned Trial Court framed the following issues:-

(i) Whether the plaintiff is entitled for the possession/ejectment as prayed for. OPP

(ii) Whether the plaintiff is entitled for recovery of Rs.2700/- as prayed for. OPP

(iii) Whether the plaintiff is entitled for a decree of damages/mesne profits as prayed for. OPP

5. During trial, Sh.Ramesh Kumar Sharma – attorney of the plaintiff was examined as PW-1 and PE was closed on 24th January, 2013. However, the learned Trial Court felt necessary to examine the plaintiff in person, hence the plaintiff Anand Dev Sharma was examined as Court Witness as CW-1 on 1st December, 2013.

6. The defendant Jai Dutt examined himself as DW-1 and also produced one witness namely Sh.Bhagwan Dass as DW-2 to prove that balance Rs.35,000/- was paid to the plaintiff by the defendant in his presence.

7. During trial, the plaintiff expired on 26th February, 2013 and his legal heirs were substituted before learned Trial Court.

8. Learned Trial Court after discussing the doctrine of part performance under Section 53-A of the Transfer of property Act, held that there was no document to prove the title of the tenant in the suit property for the reason that any right in the immovable property of the value of more than Rs.100 could have been transferred only by way of registered document as required under Section 17 of the Registration Act. Learned Trial Court noted that except the document exh