Research › Search › Judgment

Delhi High Court · body

2017 DIGILAW 1335 (DEL)

DILBAGH SINGH v. HIRA LAL

2017-04-26

VALMIKI J.MEHTA

body2017
JUDGMENT : VALMIKI J. MEHTA, J. 1. By this Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (CPC) the appellant/defendant impugns the concurrent judgments of the courts below; of the Trial Court dated 2.8.2013 and the First Appellate Court dated 30.1.2017; by which the courts below have decreed the suit for mandatory injunction and damages by granting the relief of possession to the respondent/plaintiff with respect to the suit property bearing No. B-28-30, Bhalswa Dairy Complex, Delhi. The suit has been decreed by the courts below on an application under Order XII Rule 6 CPC filed by the respondent/plaintiff. 2. The facts of the case are that the respondent/plaintiff filed the subject suit pleading that he is the owner of the suit property. Appellant/defendant is the cousin of the respondent/plaintiff as the latter is son of the paternal uncle late Sh. Sonarain. It is then pleaded that in the year 1990 appellant/defendant approached the respondent/plaintiff for using of the suit property as a licensee because the property was lying vacant. Respondent/plaintiff agreed to this request and appellant/defendant was allowed to occupy the suit property as a licensee. It is then pleaded that appellant/defendant became dishonest and wanted to grab the suit property, and therefore, refused to vacate the suit property and accordingly, a legal notice dated 3.10.2000 was sent to the appellant/defendant. Since the appellant/defendant still failed to comply with the legal notice by failing to vacate the suit property, the subject suit for possession and damages came to be filed. 3. Appellant/defendant contested the suit and pleaded that he had become the owner of the suit property because appellant/defendant had paid Rs.20,000/- in cash to the respondent/plaintiff as token/advance money. It was further pleaded that an additional sum of Rs.37,000/- was also given to the respondent/plaintiff and a receipt was signed by the respondent/plaintiff acknowledging the amount of Rs.37,000/-. It was then pleaded that balance payment of Rs.63,000/- was paid in two installments of Rs.30,000/- and Rs.33,000/-, both in cash on 15.6.1990 and 10.7.1990. Accordingly, it is pleaded that the appellant/defendant became owner of the suit property, and therefore, respondent/plaintiff was false in urging that appellant/defendant was only a licensee of the suit property. 4. It was then pleaded that balance payment of Rs.63,000/- was paid in two installments of Rs.30,000/- and Rs.33,000/-, both in cash on 15.6.1990 and 10.7.1990. Accordingly, it is pleaded that the appellant/defendant became owner of the suit property, and therefore, respondent/plaintiff was false in urging that appellant/defendant was only a licensee of the suit property. 4. Respondent/plaintiff filed an application under Order XII Rule 6 CPC in the trial court and paras 2, 3(a) and (b) of the same are relevant for the purpose of disposal of the present appeal, and which read as under:- “2. That the defendant filed his Written Statement before this Hon’ble Court and has categorically admitted: (a) In Para No.1 of his Written Statement on Merits that the plaintiff is the allottee and owner of the suit property. (b) In Para No.3 of the Preliminary Objections of his Written Statement that possession of the suit property was given to the defendant by the plaintiff. (c) In Para No.7 to 9 of the Written Statement on Merits that the defendant received the legal notice dated 03/10/2000 terminating his license and he send his reply dated 17/10/2000 to the plaintiff. (d) In Para No.7, the per day market rate of the suit property being Rs.300/- on the date of sending legal notice. 3. That the Written Statement of the defendant read as a whole categorically shows that the defendant has no right, title and interest in the suit property. The Written Statement of the defendant shows that:- (a) The defendant has no title documents whatsoever in respect of the suit property; the defendant is unable to file and show even a single document of any nature executed by the plaintiff in his favour in respect of the sale of suit property for any consideration whatsoever such as Agreement of Sale or Sale Deed or Receipts or Possession Letter or GPA or Will. (b) The defendant is unable to produce even a single receipt of any date whatsoever showing any payment made by him to the plaintiff for such alleged and false sale although the defendant falsely averred to have made payments of Rs.20,000/- (Rupees twenty thousand), Rs.37,000/- (Rupees thirty-seven thousand), Rs. 30,000/- (Rupees thirty thousand) and Rs.33,000/- (Rupees thirty-three thousand) on four different dates. (c) ………” (underlining added) 5. 30,000/- (Rupees thirty thousand) and Rs.33,000/- (Rupees thirty-three thousand) on four different dates. (c) ………” (underlining added) 5. Both the courts below have held that the suit is liable to be decreed under Order XII Rule 6 CPC because by an oral agreement an immovable property cannot be purchased. Once the defence of the appellant/defendant of having purchased the suit property by virtue of an oral agreement could not in law be looked into there remained no defence and hence the suit so far as the requirement of possession was concerned was liable to be decreed. 6. I completely agree with the conclusions of the courts below inasmuch as appellant/defendant even assuming that he paid money for purchase of the property, yet appellant/defendant cannot become the owner of the suit property because admittedly there is no document which complies with the requirement of either Section 17(1)(a) of the Registration Act, 1908 or Section 54 of the Transfer of Property Act, 1882 i.e. there are no registered documents showing transfer of title of the suit property from the respondent/plaintiff to the appellant/defendant. In fact, it is seen that respondent/plaintiff as per the contents of paras 2 and 3(a) and (b) of the application under Order XII Rule 6 CPC pointed out that there was no dispute that the respondent/plaintiff was the original allottee of the property and the appellant/defendant had filed not even a single document whatsoever whether showing any payment by the appellant/defendant to the respondent/plaintiff or any document of transfer of title of the suit property from the respondent/plaintiff to the appellant/defendant. Accordingly, the courts below have rightly decreed the suit under Order XII Rule 6 CPC because there was no disputed question of fact which required trial inasmuch as the defence of the appellant/defendant was not a valid defence in accordance with law and once there is no valid defence which can be looked into because by an oral agreement an immovable property could not have been purchased by the appellant/defendant from the respondent/plaintiff, there remained no other defence for which any trial was required to be conducted for decreeing of the suit for possession. 7. 7. Learned counsel for the appellant/defendant very vehemently argues that the subject suit could not have been decreed under Order XII Rule 6 CPC because there were disputed questions of fact which required trial, however, in my opinion the argument is misconceived because the only defence of the appellant/defendant was that he purchased the suit property under an oral agreement, but an oral agreement cannot transfer an immovable property with the further fact that not a single document was filed by the appellant/defendant showing payment of consideration firstly of Rs.20,000/-, then of Rs.37,000/- then of Rs.30,000/- and thereafter of Rs. 33,000/-. Accordingly, there was no document whatsoever filed in the courts below, much less a legally required document, showing that there was transfer of title in the suit property from the respondent/plaintiff to the appellant/defendant. 8. To complete the narration I must note that there is no defence of the appellant/defendant laid out in the suit under Section 53A of the Transfer of Property Act, and even assuming such a defence would have been laid out, such defence would not have succeeded because there is not a single document in the court record showing any written agreement in the nature of Section 53A of the Transfer of Property Act, by which the appellant/defendant could have taken benefit of the doctrine of part performance against the respondent/plaintiff. It is also interesting and curious to note that the appellant/defendant while talking of the payment of the first token money of Rs.20,000/- for entering into the agreement, does not even refer any specific date of this first alleged receipt and which would be the first agreement between the parties and which document must satisfy the requirement of Section 53A of the Transfer of Property Act for the appellant/defendant to take benefit of the doctrine of part performance. 9. No substantial question of law arises for this second appeal to be entertained. Dismissed.