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DELHI HIGH COURT
Mukta Gupta, J.
Babita Joshi (Through Her Duly
Appointed Attorney) —Petitioner
versus
Dilip Rawat —Respondent
CM(M) No.393 of 2014
Decided on 21.4.2015
(B) Transfer of Property Act, 1882 Section 53A- Possession in part performance of agreement of sale- The possession will be protect under the doctrine of Section 53A, only if the possession was delivered under a written agreement and not otherwise. (Paras 9, 10 and 11)
(C) Civil Procedure Code 1908, Order 12 Rule 6- Decision on the basis of admission- Suit for possession resisted by the defendant alleging his possession under oral agreement of sale- Rejecting the plea held that defendant had no right to continue possession merely because of oral agreement of sale in his favour- Therefore, the court directed to pass the judgment on the basis of admission as may be proper. (Paras 11 and 12)
Facts of the case
Where suit was filed for recovery of arrears of rent and permanent injunction along with mesne profits through her power attorney, alleging that she was the joint owner of the first floor of the property by virtue of a registered sale deed of 2003 and that she had let out the property to Dilip Rawat in March 2007 it was clarified that there was no water and electricity connection. The suit property was raided by BSES Officials and case of theft was registered in 2011 part payment was made for which a receipt was issued to Babita Joshi but balance payment was not made. Subsequently suit for rejected and possession was filed by Babita without issuing notice u/s 106 of the Act.
Findings of the Court
A mere agreement to sell of a movable property does not create any right in the property save, the right to enforce the said agreement. Admittedly till date Dilip Rawat has not filed any suit for specific performance. Thus even if it is accepted that an oral agreement to sell was entered into, firstly it was entered into only with one of the joint owners and Dilip Rawat has got no right to occupy the property as an agreement purchaser unless there is conveyance in accordance with law. Thus, Dilip Rawat has no right to remain in occupation of the premises or retain possession merely because of oral agreement to sell in his favour. The contention that there is not unambiguous admission deserves to be rejected. The case of Dilip Rawat specifically is on the basis of an oral agreement to sell and that too with one of the joint owners only as the other joint owner Rajinder Joshi had been missing and his whereabouts were not know.
Result: Appeal Allowed.
Mukta Gupta, J.—Aggrieved by the order dated 19th February, 2014 dismissing the application of the petitioner/plaintiff under Order 12 Rule 6 CPC the petitioner Babita Joshi prefers the present petition.
2. Babita Joshi filed a suit for possession, recovery of arrears of rent, permanent injunction and mesne profits against Dilip Rawat the defendant through her power of attorney Pradeep Jain. In the plaint Babita stated that she was the joint owner/landlady of 1st floor portion of suit property bearing No. UG-1 part of freehold property No. A-130/3 out of khasra No. 1076/5/2/141 situated at Dilshad Colony by virtue of a registered sale deed dated 19th July, 2003 (in short the suit property). It was further stated that Babita Joshi had let out the property to Dilip Rawat in March 2007 on a monthly rent of Rs.5000/- which was later enhanced to Rs.6000/- in 2010 excluding the maintenance and other charges. It was clarified that there was no water and electricity connection at the suit property. Though Dilip Rawat stated that he would reside himself and did not require water and electricity connection, he later called on his wife and children to live in the suit premises without the knowledge and permission of Babita Joshi and thereafter theft of electricity and water started. Thus the suit property was raided by BSES officials on 12th November, 2007 and a case of theft was registered against Dilip Rawat. In 2011 Babita Joshi approached Dilip Rawat. He made part-payment of Rs. 17,511/- on 22nd February, 2011 to BSES for which a receipt was given to Babita Joshi. Despite assurance Dilip Rawat did not make the balance payment. Later in June 2012 Dilip Rawat stated that he would provide receipts of payment to BSES after deducting the amount paid to BSES from the rent but later changed his idea in July 2012. In July 2012 Dilip Rawat stopped paying the monthly rent since he expressed his inability due to financial crunch. In view of the old relations Babita Joshi gave him some time to make the payment. Again in December 2012 when rent was demanded he abused her and threatened of dire consequences. Thus, Dilip Rawat was required to pay monthly rent with effect from July 2012 to August 2013 i.e. Rs. 84,000/- along with damages and mesne profits per month till the actual handing over of the possession.
3. In the written statement Dilip Rawat took the objections that the suit was not maintainable. Babita Joshi had concealed material facts and fabricated allegations, no cause of action arises and no pecuniary jurisdiction vested with the Court to entertain the suit as the value of the suit property was more than 20 lakhs. It was stated that Babita Joshi was ready to sell her joint property for a total consideration of Rs.7,50,000/- but documents could not be executed as her husband has been missing since 2005 and unless 7 years pass-bye the documents could not be executed. Babita Joshi stated that she had no account of hers and the money be transferred to the bank account of Pradeep who was the mediator in the deal. Thus Dilip Rawat issued cheques in the name of Pradeep dated 10th August, 2007 and 28th August, 2007 for a sum of Rs.1,00,000/- and Rs.10,700/-respectively. He further deposited sums of Rs.3600, Rs.72,000/-, Rs.10,000/- and Rs.10,000/- in the account of Rajinder Joshi. When the bank officials asked why he was deposing money it was stated that it was the sale consideration. Since Rajinder Joshi was missing, the bank officials refused to accept the money. Pradeep further received a sum of Rs. 2,04,700/-, Rs.44,000/- and Rs.40,000/- in cash. Dilip Rawat had paid a total sum of Rs. 4,96,200/- in respect of suit property. There was no relationship of landlord/tenant. Dilip Rawat also wrote to BSES to install the electricity meter in his name, however since Rajinder Joshi was not available, the same could not be done.
4. Though Babita Joshi did not give any notice for termination under Section 106 of the Transfer of Property Act,
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