Smt. Gurmeet Kaur vs.shri Harbhajan Singh and Anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1206230
CourtDelhi High Court
Decided OnMay-25-2017
AppellantSmt. Gurmeet Kaur
RespondentShri Harbhajan Singh and Anr.
Excerpt:
* in the high court of delhi at new delhi rsa no.155/2016 + % smt. gurmeet kaur reserved on:22. d may, 2017 pronounced on:25. h may, 2017 ..... appellant through: mr. rakesh dahiya, advocate with mr. brig. m.l. khatter, advocate. versus shri harbhajan singh and anr. ........ respondents through: ch. rabindra singh, advocate for respondent no.2 with respondent no.2 in person. coram: hon’ble mr. justice valmiki j.mehta to be referred to the reporter or not?. yes valmiki j.mehta, j (oral) 1. this regular second appeal under section 100 of code of civil procedure, 1908 (cpc) is filed by the legal heir of the plaintiff sh. sarwan singh impugning the concurrent judgments of the courts below; of the trial court dated 10.4.2008 and the first appellate court dated 29.1.2016; by which the suit for possession and damages filed by the plaintiff has been dismissed. since the plaintiff expired pendente lite and was now substituted by his legal heir, reference to the rsa no.155/2016 page 1 of 15 appellant/plaintiff as per the context will be reference to the present legal heir or the original plaintiff.2. the subject suit for possession and damages was filed by the appellant/plaintiff for possession of a portion of flat bearing no.c- 3/132, plot no.25, saraswati kunj, patparganj, ip extension, delhi. the suit flat comprises of three bed rooms, two bathrooms, one drawing room, balcony and kitchen. the portion in occupation of the defendants/respondents was shown as in blue color in the site plan filed with the plaint. the respondent no.1/defendant no.1 is the son of the original plaintiff and the respondent no.2/defendant no.2 is the wife of the respondent no.1/defendant no.1 i.e respondent no.2/defendant no.2 is the daughter-in-law of the original plaintiff sh. sarwan singh.3. the case set out in the plaint was that the plaintiff sh. sarwan singh purchased the suit property in terms of the documentation dated 19.4.1995 executed by the erstwhile owner sh. pawan kumar in favour of the plaintiff. the documents dated 19.4.1995 are agreement to sell, payment receipt and general power of attorney. the plaintiff allowed the respondent no.1/defendant no.1 to stay in a portion of the suit property as he was the son of the plaintiff. respondent no.1/defendant no.1 is a divorcee and he married the respondent no.2/defendant no.2 on 9.7.2000 and therefore respondent rsa no.155/2016 page 2 of 15 no.2/defendant no.2 also started living with the respondent no.1/defendant no.1 in the portion of the suit property. as per the plaint, the plaintiff was harassed by the respondents/defendants and consequently he went to reside with his daughter at ambala in april, 2003. plaintiff’s wife had expired on 12.4.2002. the plaintiff subsequently came back to reside in the suit property when he asked the respondents/defendants to vacate the suit property. ultimately on failure of the respondents/defendants to vacate the suit property a legal notice dated 24.9.2003 was served upon the respondents/defendants terminating the licence and which notice was served on 15.10.2003. the subject suit was ultimately filed for possession and damages against the respondents/defendants.4. the respondent no.1/defendant no.1 did not contest the suit and admitted to the case of the plaintiff. the suit was contested by the respondent no.2/defendant no.2. firstly it was pleaded on behalf of the respondent no.2/defendant no.2 that it was not the plaintiff but it was the respondent no.1/defendant no.1 who was owner of the suit property. it was also pleaded that the subject suit was filed on account of collusion between the respondent no.1/defendant no.1/son and the plaintiff/father. the suit was alleged to have been filed as a counterblast to the suit for injunction which was filed by the rsa no.155/2016 page 3 of 15 respondent no.2/defendant no.2 against the plaintiff and the respondent no.1/defendant no.1 as also a complaint filed under section 125 cr.p.c.5. after pleadings were complete, the trial court framed the following issues:-"“1. whether the plaintiff is entitled for relief of possession as prayed for in the plaint?. ….opp2 whether the plaintiff is entitled for a decree of damages?. if yes, at what rate?. and for which period?. ….opp3 relief.” 6. the courts below have dismissed the suit by referring to the fact that in addition to the documents which were proved by the plaintiff as ex.pwto ex.pwbeing the agreement to sell, general power of attorney and receipt, the respondent no.2/defendant no.2 proved the general power of attorney dated 19.4.1995 executed by the original owner sh. pawan kumar in favour of the respondent no.1/defendant no.1 and which was duly registered before the sub- registrar. it was held by the courts below that this document being the registered general power of attorney ex.dwwas concealed from the court by the plaintiff and which showed that the respondent no.1/defendant no.1/son was the owner of the suit property and not the plaintiff/father. it was held by the courts below that the suit has been rsa no.155/2016 page 4 of 15 filed in collusion between the plaintiff/father and the respondent no.1/defendant no.1/son and was therefore bound to be dismissed. the first appellate court has admittedly held that the documents executed in favour of the appellant/plaintiff being ex.pwto ex.pware not registered, and therefore, by virtue of these documents no title in the suit property had passed to the appellant/plaintiff, and that these documents ex. pwto ex. pware void being in violation of section 17 (1)(b) read with section 49 of the registration act, 1908 thereof.7. the following substantial question of law was framed by a learned single judge of this court on 24.3.2017:-"“whether the findings of the courts below suffer from perversity being not based on the pleadings and evidence adducted by the parties before the learned trial court.” 8. in addition to the aforesaid substantial question of law, in exercise of powers under section 100(5) proviso cpc, i frame the following additional substantial questions of law:-"“i) whether the courts below have not committed a complete illegality and gross perversity in relying upon the registered general power of attorney ex.dwinasmuch as such general power of attorney is not pleaded to have been executed for consideration and rsa no.155/2016 page 5 of 15 therefore as per such general power of attorney no title in the suit property would have passed to the respondent no.1/defendant no.1 in view of section 202 of the indian contract act, 1872?. ii) whether the courts below have not committed a complete and gross illegality and perversity in ignoring the complete testimony of the dw-4 being the witness from the cooperative society where the suit property is situated and who deposed with respect to the suit property being of the plaintiff inasmuch as the suit property was mutated in record of the society in the name of the plaintiff and also the fact that the plaintiff was shown as an owner by virtue of the documents ex.pwto ex.pwbeing the agreement to sell, general power of attorney, receipt dated 19.4.1995?. iii) whether the courts below have not committed a complete illegality and perversity in dismissing the suit on the ground of the alleged collusion inasmuch as even assuming there is collusion yet once the plaintiff was the owner of the suit property and the respondents/defendants were licencees, then an owner is always entitled to take back possession from the licencees and any alleged collusion cannot defeat the right of an owner to take back possession of the premises in his ownership (being the plaintiff in the present case) from the licencees?.” rsa no.155/2016 page 6 of 15 9. all the aforesaid substantial questions of law are answered in favour of the appellant/plaintiff and the reasons for the same are contained hereinafter.10. it is an undisputed fact that the appellant/plaintiff proved the documents being the agreement to sell, general power of attorney and the receipt as ex.pwto ex.pw1/4. these documents have been executed prior to amendment of section 53a of the transfer of property act, 1882 by act 48 of 2001 and which came into effect from 24.9.2001. these documents therefore need not have been stamped or registered so as to create rights in terms of doctrine of part performance under the then existing section 53a of the transfer of property act. it is only by the subsequent amendment of section 53a of the transfer of property act w.e.f 24.9.2001, that an agreement to sell would not confer any rights in terms of the doctrine of part performance if such an agreement to sell is not registered. since the amendment is prospective in nature, therefore, the documents executed prior to 24.9.2001 being the documents ex.pwto ex.pwdated 19.4.1995 did not require registration and stamping. this aspect has been dealt by this court in detail in the judgment in the case of shri ramesh chand vs. suresh chand and anr., 188 (2012) dlt538and in which judgment this court has referred to the judgment of the rsa no.155/2016 page 7 of 15 supreme court in the case of suraj lamps and industries pvt. ltd. vs. state of haryana and anr., 183 (2011) dlt1(sc) , and as per which supreme court judgment agreements to sell, general power of attorneys and wills which are validly executed are protected and such documents will have rights flowing under the same in terms of section 53a of the transfer of property act, section 202 of the indian contract act and the relevant provisions of the indian succession act pertaining to devolution of properties by a will i.e only such documents executed post 24.9.2001 will not have validity if they are not stamped and registered..11. in my opinion therefore the courts below have committed a complete illegality and gross perversity in denying the ownership of the suit property to the plaintiff in spite of the fact that the documents ex.pwto ex.pwproved the ownership of the plaintiff of the suit property. i may also note that there is no doubt whatsoever as to the authenticity of ex.pwto ex.pwinasmuch as a sum of rs.2.50 lacs out of the total consideration of rs.3 lacs was paid by the plaintiff sh. sarwan singh to the erstwhile owner sh. pawan kumar in terms of the demand draft no.345960 dated 19.4.1995 drawn on indian bank, safdarjung enclave, delhi-110024 and which fact is mentioned in the payment receipt ex.pw1/3. in fact that documents ex.pwto rsa no.155/2016 page 8 of 15 ex.pwwere duly executed becomes also clear from the fact that these documents are dated 19.4.1995 and which is the same date when general power of attorney ex.dwwas also executed by the erstwhile owner sh. pawan kumar in favour of the respondent no.1/defendant no.1/son/sh. harbhajan singh. of course, the general power of attorney ex.dwwill not give any ownership rights to the respondent no.1/defendant no.1 in the suit property for the reasons stated hereinafter. 12.(i) the courts below have relied upon the general power of attorney ex.dwdated 19.4.1995 executed by the erstwhile owner sh. pawan kumar in favour of the respondent no.1/defendant no.1/sh. harbhajan singh to hold that such document being a registered document would have preference over the unregistered documents ex.pwto ex.pw1/4, but this logic is completely faulty and illegal in view of the ratio of the judgment of this court in the case of shri ramesh chand (supra), and which makes it clear by reference to the supreme court judgment in the case of suraj lamps and industries pvt. ltd (supra) that unregistered and unstamped documents executed prior to 24.9.2001 will have benefit of doctrine of part performance under section 53a of the transfer of property act, and that it is only those agreements to sell which are executed after 24.9.2001 which rsa no.155/2016 page 9 of 15 cannot create rights under section 53a of the transfer of property act unless they are duly stamped and registered. (ii) in fact the courts below have completely ignored the law and caused a gross illegality and perversity in accepting the general power of attorney ex.dwexecuted by the erstwhile owner sh. pawan kumar in favour of the respondent no.1/defendant no.1 as conferring title of the suit property to the respondent no.1/defendant no.1 inasmuch as a general power of attorney before the same can create rights in an immovable property must be executed for consideration in terms of section 202 of the indian contract act. it is only a general power of attorney which is supported by consideration which has the effect of being irrevocable and conferring rights in an immovable property. it was never the case of the respondent no.1/defendant no.1 that the general power of attorney ex.dwwas executed for consideration paid by the respondent no.1/defendant no.1/sh. harbhajan singh to the erstwhile owner sh. pawan kumar. in fact, as already stated above, consideration was paid by the plaintiff sh. sarwan singh to sh. pawan kumar as duly recorded in the receipt ex.pw1/3, and a sum of rs.2.50 lacs out of the total consideration of rs.3 lacs was paid by a bank draft to sh. pawan kumar by sh. sarwan singh. therefore the general power of attorney ex.dwcannot be a rsa no.155/2016 page 10 of 15 basis for claim of any ownership in the suit property by the respondent no.1/defendant no.1 and therefore the courts below have committed complete illegality and perversity in dismissing the suit for possession and damages. (iii) at this stage the different logics of execution of a general power of attorney which is accompanying an agreement to sell is required to be noticed. in the first type of cases by a general power of attorney, the general power of attorney holder acts for and on behalf of the original owner and therefore it is a practice in delhi that sometimes a general power of attorney is executed in favour of a third person and in whose name the agreement to sell is not executed, and this is done so as to enable the third person to act as an independent person on behalf of the executant of the general power of attorney for the subsequent execution of the sale deed of the property in favour of the buyer under the agreement to sell and also for taking further steps with respect to the property transferred. in second type of cases a general power of attorney is not executed in favour of a third person but is directly executed in favour of the transferee under the agreement to sell, and who then acts in two capacities i.e one as a transferee of the immovable property having the benefit of the doctrine of part performance and another as the irrevocable attorney holder of the rsa no.155/2016 page 11 of 15 original owner and having rights under section 202 of the indian contract act. in the third type of cases, two general power of attorneys are executed by the transferor of an immovable property; one being in favour of the transferee and another being in favour of a third person; and which last/third position is the factual position in the present case. this third position has the advantages of both the first and second positions as stated above. in any case, and as stated above, any general power of attorney executed in favour of the respondent no.1/defendant no.1/sh. harbhajan singh being ex.dwwill not give any rights in the suit property to the respondent no.1/defendant no.1 inasmuch as rights which are created are created in a transferee under an agreement to sell and which was the plaintiff sh. sarwan singh, with the fact that as regards a general power of attorney it is only a general power of attorney given for consideration which is irrevocable under section 202 of the indian contract act and in the facts of this case admittedly no consideration is pleaded or proved to have been passed from respondent no.1/defendant no.1 to the erstwhile owner sh. pawan kumar. hence, no rights in the suit property were ever transferred or created by the erstwhile owner sh. pawan kumar in favor of the respondent no.1/defendant no.1. rsa no.155/2016 page 12 of 15 13. at this stage, i would like to reproduce the entire examination-in-chief and cross-examination of the dw-4 who appeared on behalf of the society where the subject flat is situated and which shows that it was the plaintiff who was the owner of the suit property/flat and that the general power of attorney executed in favour of the respondent no.1/defendant no.1 was only to enable the respondent no.1/defendant no.1 to stay in the suit property. this examination in chief and cross examination of dw-4 sh. a.k. sharma reads as under:-"“statement of dw-4 a.k. sharma-s/o sh. krishan dev sharma secretary of saraswati kung housing co-operative society, age about 40 years. on s.a. i have brought the summoned record pertaining to gpa dt.19.04.95 executed by pawan kumar in favour of sh. harbhajan singh in respect of flat no.132, saraswati kung, cooperative housing society submitted by harbhajan singh in the society office. (official record seen and return). harbhajan singh also submitted a letter dt. 19.04.95 for occupation of the aforesaid flat addressed to the society duly signed by harbhajan singh and verified by pawan kumar. i cannot identify the signature either harbhajan singh or of sh. pawan kumar on letter dt. 19.04.1995. the record produced by me are maintained by the society in its routine course at its office. the photocopy of same is mark-a (official record of the same is seen and returned). xxxxx by sh. k.k. malhotra-ld. counsel for plaintiff. objected to the chief examination of dw4 by the counsel for the plaintiff. sd/- 20.08.2005 ro & ac. dw4 statement of sh. a.k. sharma s/o krishan dev sharma recalled for cross examination on s.a. xxxxx by sh. k.k. malhotra, advocate for the plaintiff. i have brought the record. the maintenance of the society as per the record is being paid by the plaintiff. in as per our record the property i.e. the flat in dispute is muted in the name of the plaintiff. there is a letter dated 06/05/1999 from harbhajan singh in our records and alongwith the same the documents of the sale i.e. power of attorney, sale agreement, will, receipt for payment have been filed and have been executed by the earlier owner sh. sd/- c.j./delhi 20.08.2005 rsa no.155/2016 page 13 of 15 pawan kumar in favour of the plaintiff dated 19/04/1995. we have also given a no objection for free hold of the flat in the name of the plaintiff on the basis of a letter dated 07/12/04. sd/- ro & ac. 09.12.2005 (underlining added) sd/- c.j./delhi 09.12.2005” 14. in my opinion therefore the respondent no.2/defendant no.2 cannot take any benefit of the statement of dw-4 in the examination-in-chief with respect to the respondent no.1/defendant no.1/sh. harbhajan singh submitting a letter dated 19.4.1995, inasmuch as that letter will only give a right to respondent no.1/defendant no.1 as a licencee to occupy the suit property and that no ownership rights were or could ever have been conferred upon the respondent no.1/defendant no.1/sh. harbhajan singh in the suit property by virtue of the general power of attorney ex.dw3/1.15. in view of the above discussion, and since all the substantial questions of law are answered in favour of the appellant/plaintiff and against the respondent no.2/defendant no.2, this regular second appeal is accordingly allowed and the suit for possession will stand decreed in favor of the appellant/plaintiff and against the respondents/defendants. the suit is also decreed for damages at rs.6,000/- per month pendente lite and future till vacation of the suit property by the respondent no.2/defendant no.2 inasmuch as rsa no.155/2016 page 14 of 15 this rate of rs.6,000/- per month is proved and affidavit by way of evidence of the plaintiff sh. sarwan singh and there is no cross- examination to this rate of rent on behalf of respondent no.2/defendant no.2. i may also note that same is the position with respect to proof of rate of rent as per the evidence of pw-2 sh. kulwant singh and who again has not been cross-examined on the rate of rent of rs.6,000/- per month of the suit flat.16. this regular second appeal is accordingly allowed and the suit for possession and damages filed by the appellant/plaintiff is decreed against the respondent no.2/defendant no.2 and the respondent no.2/defendant no.2 is directed to remove herself and hand over possession of the portion marked in blue colour in the site plan ex.pwto the appellant/plaintiff in the suit property bearing no.c- 3/132, plot no.25, saraswati kunj, patparganj, ip extension, delhi, and also pay the appellant/plaintiff damages at rs.6,000/- per month pendente lite from the date of filing of the suit and in future till possession of the decreed property is handed over to the appellant/plaintiff. parties are left to bear their own costs. may25 2017 ne valmiki j.mehta, j rsa no.155/2016 page 15 of 15
Judgment:

* IN THE HIGH COURT OF DELHI AT NEW DELHI RSA No.155/2016 + % SMT. GURMEET KAUR Reserved on:

22. d May, 2017 Pronounced on:

25. h May, 2017 ..... Appellant Through: Mr. Rakesh Dahiya, Advocate with Mr. Brig. M.L. Khatter, Advocate. versus SHRI HARBHAJAN SINGH AND ANR. ........ RESPONDENTS

Through: Ch. Rabindra Singh, Advocate for Respondent no.2 with Respondent no.2 in person. CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?. YES VALMIKI J.

MEHTA, J (ORAL) 1. This Regular Second Appeal under Section 100 of Code of Civil Procedure, 1908 (CPC) is filed by the legal heir of the plaintiff Sh. Sarwan Singh impugning the concurrent judgments of the courts below; of the Trial Court dated 10.4.2008 and the First Appellate Court dated 29.1.2016; by which the suit for possession and damages filed by the plaintiff has been dismissed. Since the plaintiff expired pendente lite and was now substituted by his legal heir, reference to the RSA No.155/2016 Page 1 of 15 appellant/plaintiff as per the context will be reference to the present legal heir or the original plaintiff.

2. The subject suit for possession and damages was filed by the appellant/plaintiff for possession of a portion of flat bearing no.C- 3/132, Plot no.25, Saraswati Kunj, Patparganj, IP Extension, Delhi. The suit flat comprises of three bed rooms, two bathrooms, one drawing room, balcony and kitchen. The portion in occupation of the defendants/respondents was shown as in blue color in the site plan filed with the plaint. The respondent no.1/defendant no.1 is the son of the original plaintiff and the respondent no.2/defendant no.2 is the wife of the respondent no.1/defendant no.1 i.e respondent no.2/defendant no.2 is the daughter-in-law of the original plaintiff Sh. Sarwan Singh.

3. The case set out in the plaint was that the plaintiff Sh. Sarwan Singh purchased the suit property in terms of the documentation dated 19.4.1995 executed by the erstwhile owner Sh. Pawan Kumar in favour of the plaintiff. The documents dated 19.4.1995 are agreement to sell, payment receipt and general power of attorney. The plaintiff allowed the respondent no.1/defendant no.1 to stay in a portion of the suit property as he was the son of the plaintiff. Respondent no.1/defendant no.1 is a divorcee and he married the respondent no.2/defendant no.2 on 9.7.2000 and therefore respondent RSA No.155/2016 Page 2 of 15 no.2/defendant no.2 also started living with the respondent no.1/defendant no.1 in the portion of the suit property. As per the plaint, the plaintiff was harassed by the respondents/defendants and consequently he went to reside with his daughter at Ambala in April, 2003. Plaintiff’s wife had expired on 12.4.2002. The plaintiff subsequently came back to reside in the suit property when he asked the respondents/defendants to vacate the suit property. Ultimately on failure of the respondents/defendants to vacate the suit property a legal notice dated 24.9.2003 was served upon the respondents/defendants terminating the licence and which notice was served on 15.10.2003. The subject suit was ultimately filed for possession and damages against the respondents/defendants.

4. The respondent no.1/defendant no.1 did not contest the suit and admitted to the case of the plaintiff. The suit was contested by the respondent no.2/defendant no.2. Firstly it was pleaded on behalf of the respondent no.2/defendant no.2 that it was not the plaintiff but it was the respondent no.1/defendant no.1 who was owner of the suit property. It was also pleaded that the subject suit was filed on account of collusion between the respondent no.1/defendant no.1/son and the plaintiff/father. The suit was alleged to have been filed as a counterblast to the suit for injunction which was filed by the RSA No.155/2016 Page 3 of 15 respondent no.2/defendant no.2 against the plaintiff and the respondent no.1/defendant no.1 as also a complaint filed under Section 125 Cr.P.C.

5. After pleadings were complete, the trial court framed the following issues:-

"“1. Whether the plaintiff is entitled for relief of possession as prayed for in the plaint?. ….OPP2 Whether the plaintiff is entitled for a decree of damages?. if yes, at what rate?. and for which period?. ….OPP3 Relief.” 6. The courts below have dismissed the suit by referring to the fact that in addition to the documents which were proved by the plaintiff as Ex.PW
to Ex.PW
being the agreement to sell, general power of attorney and receipt, the respondent no.2/defendant no.2 proved the general power of attorney dated 19.4.1995 executed by the original owner Sh. Pawan Kumar in favour of the respondent no.1/defendant no.1 and which was duly registered before the Sub- Registrar. It was held by the courts below that this document being the registered general power of attorney Ex.DW
was concealed from the Court by the plaintiff and which showed that the respondent no.1/defendant no.1/son was the owner of the suit property and not the plaintiff/father. It was held by the courts below that the suit has been RSA No.155/2016 Page 4 of 15 filed in collusion between the plaintiff/father and the respondent no.1/defendant no.1/son and was therefore bound to be dismissed. The first appellate court has admittedly held that the documents executed in favour of the appellant/plaintiff being Ex.PW
to Ex.PW
are not registered, and therefore, by virtue of these documents no title in the suit property had passed to the appellant/plaintiff, and that these documents Ex. PW
to Ex. PW
are void being in violation of Section 17 (1)(b) read with Section 49 of the Registration Act, 1908 thereof.

7. The following substantial question of law was framed by a learned Single Judge of this Court on 24.3.2017:-

"“Whether the findings of the Courts below suffer from perversity being not based on the pleadings and evidence adducted by the parties before the learned Trial Court.” 8. In addition to the aforesaid substantial question of law, in exercise of powers under Section 100(5) Proviso CPC, I frame the following additional substantial questions of law:-

"“i) Whether the courts below have not committed a complete illegality and gross perversity in relying upon the registered general power of attorney Ex.DW
inasmuch as such general power of attorney is not pleaded to have been executed for consideration and RSA No.155/2016 Page 5 of 15 therefore as per such general power of attorney no title in the suit property would have passed to the respondent no.1/defendant no.1 in view of Section 202 of the Indian Contract Act, 1872?. ii) Whether the courts below have not committed a complete and gross illegality and perversity in ignoring the complete testimony of the DW-4 being the witness from the cooperative society where the suit property is situated and who deposed with respect to the suit property being of the plaintiff inasmuch as the suit property was mutated in record of the society in the name of the plaintiff and also the fact that the plaintiff was shown as an owner by virtue of the documents Ex.PW
to Ex.PW
being the agreement to sell, general power of attorney, receipt dated 19.4.1995?. iii) Whether the courts below have not committed a complete illegality and perversity in dismissing the suit on the ground of the alleged collusion inasmuch as even assuming there is collusion yet once the plaintiff was the owner of the suit property and the respondents/defendants were licencees, then an owner is always entitled to take back possession from the licencees and any alleged collusion cannot defeat the right of an owner to take back possession of the premises in his ownership (being the plaintiff in the present case) from the licencees?.” RSA No.155/2016 Page 6 of 15 9. All the aforesaid substantial questions of law are answered in favour of the appellant/plaintiff and the reasons for the same are contained hereinafter.

10. It is an undisputed fact that the appellant/plaintiff proved the documents being the agreement to sell, general power of attorney and the receipt as Ex.PW
to Ex.PW1/4. These documents have been executed prior to amendment of Section 53A of the Transfer of Property Act, 1882 by Act 48 of 2001 and which came into effect from 24.9.2001. These documents therefore need not have been stamped or registered so as to create rights in terms of doctrine of part performance under the then existing Section 53A of the Transfer of Property Act. It is only by the subsequent amendment of Section 53A of the Transfer of Property Act w.e.f 24.9.2001, that an agreement to sell would not confer any rights in terms of the doctrine of part performance if such an agreement to sell is not registered. Since the amendment is prospective in nature, therefore, the documents executed prior to 24.9.2001 being the documents Ex.PW
to Ex.PW
dated 19.4.1995 did not require registration and stamping. This aspect has been dealt by this Court in detail in the judgment in the case of Shri Ramesh Chand Vs. Suresh Chand and Anr., 188 (2012) DLT538and in which judgment this Court has referred to the judgment of the RSA No.155/2016 Page 7 of 15 Supreme Court in the case of Suraj Lamps and Industries Pvt. Ltd. Vs. State of Haryana and Anr., 183 (2011) DLT1(SC) , and as per which Supreme Court judgment agreements to sell, general power of attorneys and Wills which are validly executed are protected and such documents will have rights flowing under the same in terms of Section 53A of the Transfer of Property Act, Section 202 of the Indian Contract Act and the relevant provisions of the Indian Succession Act pertaining to devolution of properties by a Will i.e only such documents executed post 24.9.2001 will not have validity if they are not stamped and registered..

11. In my opinion therefore the courts below have committed a complete illegality and gross perversity in denying the ownership of the suit property to the plaintiff in spite of the fact that the documents Ex.PW
to Ex.PW
proved the ownership of the plaintiff of the suit property. I may also note that there is no doubt whatsoever as to the authenticity of Ex.PW
to Ex.PW
inasmuch as a sum of Rs.2.50 lacs out of the total consideration of Rs.3 lacs was paid by the plaintiff Sh. Sarwan Singh to the erstwhile owner Sh. Pawan Kumar in terms of the demand draft no.345960 dated 19.4.1995 drawn on Indian Bank, Safdarjung Enclave, Delhi-110024 and which fact is mentioned in the payment receipt Ex.PW1/3. In fact that documents Ex.PW
to RSA No.155/2016 Page 8 of 15 Ex.PW
were duly executed becomes also clear from the fact that these documents are dated 19.4.1995 and which is the same date when general power of attorney Ex.DW
was also executed by the erstwhile owner Sh. Pawan Kumar in favour of the respondent no.1/defendant no.1/son/Sh. Harbhajan Singh. Of course, the general power of attorney Ex.DW
will not give any ownership rights to the respondent no.1/defendant no.1 in the suit property for the reasons stated hereinafter. 12.(i) The courts below have relied upon the general power of attorney Ex.DW
dated 19.4.1995 executed by the erstwhile owner Sh. Pawan Kumar in favour of the respondent no.1/defendant no.1/Sh. Harbhajan Singh to hold that such document being a registered document would have preference over the unregistered documents Ex.PW
to Ex.PW1/4, but this logic is completely faulty and illegal in view of the ratio of the judgment of this Court in the case of Shri Ramesh Chand (supra), and which makes it clear by reference to the Supreme Court judgment in the case of Suraj Lamps and Industries Pvt. Ltd (supra) that unregistered and unstamped documents executed prior to 24.9.2001 will have benefit of doctrine of part performance under Section 53A of the Transfer of Property Act, and that it is only those agreements to sell which are executed after 24.9.2001 which RSA No.155/2016 Page 9 of 15 cannot create rights under Section 53A of the Transfer of Property Act unless they are duly stamped and registered. (ii) In fact the courts below have completely ignored the law and caused a gross illegality and perversity in accepting the general power of attorney Ex.DW
executed by the erstwhile owner Sh. Pawan Kumar in favour of the respondent no.1/defendant no.1 as conferring title of the suit property to the respondent no.1/defendant no.1 inasmuch as a general power of attorney before the same can create rights in an immovable property must be executed for consideration in terms of Section 202 of the Indian Contract Act. It is only a general power of attorney which is supported by consideration which has the effect of being irrevocable and conferring rights in an immovable property. It was never the case of the respondent no.1/defendant no.1 that the general power of attorney Ex.DW
was executed for consideration paid by the respondent no.1/defendant no.1/Sh. Harbhajan Singh to the erstwhile owner Sh. Pawan Kumar. In fact, as already stated above, consideration was paid by the plaintiff Sh. Sarwan Singh to Sh. Pawan Kumar as duly recorded in the receipt Ex.PW1/3, and a sum of Rs.2.50 lacs out of the total consideration of Rs.3 lacs was paid by a bank draft to Sh. Pawan Kumar by Sh. Sarwan Singh. Therefore the general power of attorney Ex.DW
cannot be a RSA No.155/2016 Page 10 of 15 basis for claim of any ownership in the suit property by the respondent no.1/defendant no.1 and therefore the courts below have committed complete illegality and perversity in dismissing the suit for possession and damages. (iii) At this stage the different logics of execution of a general power of attorney which is accompanying an agreement to sell is required to be noticed. In the first type of cases by a general power of attorney, the general power of attorney holder acts for and on behalf of the original owner and therefore it is a practice in Delhi that sometimes a general power of attorney is executed in favour of a third person and in whose name the agreement to sell is not executed, and this is done so as to enable the third person to act as an independent person on behalf of the executant of the general power of attorney for the subsequent execution of the sale deed of the property in favour of the buyer under the agreement to sell and also for taking further steps with respect to the property transferred. In second type of cases a general power of attorney is not executed in favour of a third person but is directly executed in favour of the transferee under the agreement to sell, and who then acts in two capacities i.e one as a transferee of the immovable property having the benefit of the doctrine of part performance and another as the irrevocable attorney holder of the RSA No.155/2016 Page 11 of 15 original owner and having rights under Section 202 of the Indian Contract Act. In the third type of cases, two general power of attorneys are executed by the transferor of an immovable property; one being in favour of the transferee and another being in favour of a third person; and which last/third position is the factual position in the present case. This third position has the advantages of both the first and second positions as stated above. In any case, and as stated above, any general power of attorney executed in favour of the respondent no.1/defendant no.1/Sh. Harbhajan Singh being Ex.DW
will not give any rights in the suit property to the respondent no.1/defendant no.1 inasmuch as rights which are created are created in a transferee under an agreement to sell and which was the plaintiff Sh. Sarwan Singh, with the fact that as regards a general power of attorney it is only a general power of attorney given for consideration which is irrevocable under Section 202 of the Indian Contract Act and in the facts of this case admittedly no consideration is pleaded or proved to have been passed from respondent no.1/defendant no.1 to the erstwhile owner Sh. Pawan Kumar. Hence, no rights in the suit property were ever transferred or created by the erstwhile owner Sh. Pawan Kumar in favor of the respondent no.1/defendant no.1. RSA No.155/2016 Page 12 of 15 13. At this stage, I would like to reproduce the entire examination-in-chief and cross-examination of the DW-4 who appeared on behalf of the society where the subject flat is situated and which shows that it was the plaintiff who was the owner of the suit property/flat and that the general power of attorney executed in favour of the respondent no.1/defendant no.1 was only to enable the respondent no.1/defendant no.1 to stay in the suit property. This examination in chief and cross examination of DW-4 Sh. A.K. Sharma reads as under:-

"“Statement of DW-4 A.K. Sharma-S/o Sh. Krishan Dev Sharma Secretary of Saraswati Kung Housing Co-operative Society, Age about 40 years. On S.A. I have brought the summoned record pertaining to GPA dt.19.04.95 executed by Pawan Kumar in favour of Sh. Harbhajan Singh in respect of Flat no.132, Saraswati Kung, Cooperative housing society submitted by Harbhajan Singh in the society office. (official record seen and return). Harbhajan Singh also submitted a letter dt. 19.04.95 for occupation of the aforesaid flat addressed to the society duly signed by Harbhajan Singh and verified by Pawan Kumar. I cannot identify the signature either Harbhajan Singh or of Sh. Pawan Kumar on letter dt. 19.04.1995. The record produced by me are maintained by the society in its routine course at its office. The photocopy of same is mark-A (official record of the same is seen and returned). xxxxx by Sh. K.K. Malhotra-Ld. counsel for plaintiff. Objected to the chief examination of DW4 by the counsel for the plaintiff. Sd/- 20.08.2005 RO & AC. DW4 Statement of Sh. A.K. Sharma S/o Krishan Dev Sharma Recalled for cross examination On S.A. xxxxx By Sh. K.K. Malhotra, advocate for the plaintiff. I have brought the record. The maintenance of the society as per the record is being paid by the plaintiff. In as per our record the property i.e. the flat in dispute is muted in the name of the plaintiff. There is a letter dated 06/05/1999 from Harbhajan Singh in our records and alongwith the same the documents of the sale i.e. Power of attorney, Sale agreement, Will, Receipt for payment have been filed and have been executed by the earlier owner Sh. sd/- C.J./Delhi 20.08.2005 RSA No.155/2016 Page 13 of 15 Pawan Kumar in favour of the plaintiff dated 19/04/1995. We have also given a no objection for free hold of the flat in the name of the plaintiff on the basis of a letter dated 07/12/04. Sd/- RO & AC. 09.12.2005 (underlining added) sd/- C.J./Delhi 09.12.2005” 14. In my opinion therefore the respondent no.2/defendant no.2 cannot take any benefit of the statement of DW-4 in the examination-in-chief with respect to the respondent no.1/defendant no.1/Sh. Harbhajan Singh submitting a letter dated 19.4.1995, inasmuch as that letter will only give a right to respondent no.1/defendant no.1 as a licencee to occupy the suit property and that no ownership rights were or could ever have been conferred upon the respondent no.1/defendant no.1/Sh. Harbhajan Singh in the suit property by virtue of the general power of attorney Ex.DW3/1.

15. In view of the above discussion, and since all the substantial questions of law are answered in favour of the appellant/plaintiff and against the respondent no.2/defendant no.2, this regular second appeal is accordingly allowed and the suit for possession will stand decreed in favor of the appellant/plaintiff and against the respondents/defendants. The suit is also decreed for damages at Rs.6,000/- per month pendente lite and future till vacation of the suit property by the respondent no.2/defendant no.2 inasmuch as RSA No.155/2016 Page 14 of 15 this rate of Rs.6,000/- per month is proved and affidavit by way of evidence of the plaintiff Sh. Sarwan Singh and there is no cross- examination to this rate of rent on behalf of respondent no.2/defendant no.2. I may also note that same is the position with respect to proof of rate of rent as per the evidence of PW-2 Sh. Kulwant Singh and who again has not been cross-examined on the rate of rent of Rs.6,000/- per month of the suit flat.

16. This regular second appeal is accordingly allowed and the suit for possession and damages filed by the appellant/plaintiff is decreed against the respondent no.2/defendant no.2 and the respondent no.2/defendant no.2 is directed to remove herself and hand over possession of the portion marked in blue colour in the site plan Ex.PW
to the appellant/plaintiff in the suit property bearing No.C- 3/132, Plot No.25, Saraswati Kunj, Patparganj, IP Extension, Delhi, and also pay the appellant/plaintiff damages at Rs.6,000/- per month pendente lite from the date of filing of the suit and in future till possession of the decreed property is handed over to the appellant/plaintiff. Parties are left to bear their own costs. MAY25 2017 Ne VALMIKI J.

MEHTA, J RSA No.155/2016 Page 15 of 15