The judgment emphasizes the importance of complying with legal provisions governing property agreements and the limitations on raising impermissible defenses under the Evidence Act.

VALMIKI J. MEHTA, J.

C.M. No. 27840/2017 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

RSA No. 199/2017 and C.M. No. 27839/2017 (stay)

2. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the concurrent judgments of the courts below; trial court dated 17.4.2017 and the first appellate court dated 3.6.2017 by which the courts below have decreed the suit for the relief of possession with respect to the ground floor of property no. 424, Gali Pan Wali, Farsh Bazar, Shahdara, Delhi. The suit was also decreed by granting a permanent injunction restraining the appellant/defendant from creating third party rights in the suit property.

3. The facts of the case are that respondent/plaintiff filed the subject suit seeking relief of possession and injunction by pleading that the appellant/defendant is the real sister-in-law of the respondent/plaintiff and that appellant/defendant approached the respondent/ plaintiff in the year 2005 to support her and to provide her shelter. Appellant/defendant was therefore allowed to live in the suit property by the respondent/plaintiff. Respondent/ plaintiff pleaded that when in May 2015 appellant/defendant was asked to vacate the suit property as the property is required for her son being a heart patient, however, the appellant/defendant instead of vacating the property she falsely claimed that she had purchased the suit property and had paid Rs. 4,38,000/- towards sale consideration of the suit property to the respondent/plaintiff on 2.3.2014. It was pleaded by the respondent/ plaintiff that the amount in question was actually and only taken by the respondent/plaintiff from the appellant/defendant as a security and which was to be refunded on the appellant/ defendant vacating the property and for which purpose a security agreement dated 2.3.2014 was entered into between the parties.

4. Appellant/defendant contested the suit by pleading that respondent/plaintiff had agreed to sell the property on 2.3.2014 for a total consideration of Rs. 7 lakhs of which Rs. 4,38,000/- was paid under the agreement dated 2.3.2014. Appellant/defendant claimed that she was residing in the suit property since the year 2005 and therefore the suit has to be dismissed because the security agreement dated 2.3.2014 is not a security agreement but an agreement to sell.

5. It is seen that there is no dispute that the parties entered into the security agreement dated 2.3.2014. Appellant/defendant claims that the agreement dated 2.3.3014 is not a security agreement but is an agreement to sell. First appellate court has therefore held that even if the agreement has to be taken as an agreement to sell, yet, since the agreement to sell was not in accordance with Section 53-A of the Transfer of Property Act, 1882 as amended by Act 48 of 2001 which came into effect on 24.9.2001 inasmuch as agreement to sell is not registered, therefore, the appellant/defendant cannot claim rights under the same. In the opinion of this Court, the courts below have rightly held that appellant/defendant cannot have benefit of Section 53-A of the Transfer of Property Act.

6. I would like to note that the contention of the appellant/defendant that the agreement in question was not a security agreement but was an agreement to sell, is an argument which the appellant/defendant cannot be permitted to take as it is barred by Sections 91 and 92 of the Evidence Act, 1872. Section 91 of the Evidence Act stated that the agreement is proved by the document being the agreement itself and once the agreement is so proved the agreement cannot be contradicted by any parol evidence. In my opinion, therefore once the agreement dated 2.3.2014 is a security agreement the same cannot be as per its literal language be taken as an agreement to sell because that would amount to the appellant/ defendant being permitted to contradict the terms of the agree