Naraini Devi, Roop. Kishore Vs. Ram Chand - Court Judgment

Excerpt:
transfer of property act - section 53-a--doctrine of part performance--it can be raised only by a person in possession of property and not by a person not in possession.section 53-a--transfer of property--title of property claimed by two parties--ln the absence of any deed of conveyance in favor of any of the parties the person who can raise the defense of part performance in respect of the property has a better title and thereforee is liable to succeed. - - defendants have questioned the right of the plaintiff to file this suit and his motive as well. in normal circumstances notice or copy of notice should have been addressed to him as well. since also dcv raj has died, on the basis of this will, which is of later dale than that in favor of the plaintiff, the defedants have a better right to this properly. valid title also did not pass to the first defendant as there was no sale deed in her favor as well.d.p. wadhwa, j.(1) this is defendants' appeal against the judgment and decree dated 16 march 1991 of the additional district judge, delhi, whereby he decreed the suit of the plaintiff- respondent for possession of the property in suit and also for recovery of rs.10,800.00 as damages.(2) the plaintiff (now the respondent) averred that he purchased the property bearing house no. x/2816, gali no.5, raghbarpura-ii, gandhi nagar, delhi, from his brother dev raj on 13 july 1977 for a consideration of rs.10,000.00. plaintiff said out of this amount, rs.8,000.00 were paid to dev raj before the sub-registrar and rs.2,000.00 had been paid earlier. then the plaintiff said that dev raj also handed over to him the sale deed as executed between them and also gave him the possession of the property in part performance of the sale consideration. plaintiff says that after he took over the possession of the property from dev raj he let out a portion of the properly to dev raj at the rate of rs.80.00 per month. there were two defendants who are now the appellants, both are husband and wife. plaintiff said that the defendants knew that he was owner of the property having purchased the same from dev raj laid they were neighbours of dev raj as they had been residing in property bearing no. 2981, gali no.4, raghbarpura, delhi, and were friendly with dev raj. plaintiff then alleged that the defendants joined hands to defraud him and to usurp the property. he served a notice dated 21 april 1981 on the defendant no.1. then the plaintiff says he came to know that the defendants were conspiring to forcibly occupy the property which the plaintiff had purchased. no reply was sent by the first defendant to the plaintiff and then the plaintiff further adds that the defendants illegally trespassed into portion of the property which was lying vacant and that comprised one shed, latrine, bath, water hand pump, etc. the plaintiff described this property as red in the plan which he filed along with the plaint. according to the plaintiff, thereforee, the defendants committed trespass in 1983 and thereafter made certain additions and alterations in the property without the consent of the plaintiff. since the defendants did not vacate the properly and also did not pay any damages for illegal use and occupation thereof, the plaintiff not only sued for possession but also claimed damages at the rate of rs.300.00 per month which amounted to rs.10,800.00 for the last three years. the suit was filed on or about 16 july 1987.,(3) defendants, on the other hand, said that the plaintiff had no cause of action and they also raised some preliminary objections about the maintainability of the suit, valuation thereof and the pecuniary jurisdiction of the court trying the suit. they said in fact first defendant no.1 had purchased the property by agreement dated 11 march 1981 from dev raj for a consideration of rs.17,000.00 which fact dev raj acknowledged and gave a receipt evidencing that the defendants had purchased 80 sq. yards in the property whole of which the plaintiff had said he had purchased from his brother dev raj. defendants then said that dev raj also executed a general power of attorney in favor of defendant no.1 and also executed certain documents evidencing sale of the property to the first defendant. defendants then say they are in possession of the property by virtue of the agreement to sell and have also become owner on account of execution of various documents. defendants have questioned the right of the plaintiff to file this suit and his motive as well.(4) on the pleas of the parties, the trial court framed the following issues :- 1. whether the plaintiff has no locus standi to file the suit as per objection no.2 of preliminary objections in the written statement? opd. 2.whether there is no cause of action available to the plaintiff? opd 3.whether the suit has not been properly valued for the purpose of court fee and pecuniary jurisdiction? opd 4.whether the defendant is the rightful owner of the suit properly? opd 5.to what rate of damages the .plaintiff is entitled? opp 6.whether the plaintiff is entitled to relief of possession? opp 7.relief. (5) while the issue no. 3 was decided separately, issues no. 1, 2, 4, 5, 6 and 7 were decided together as the trial court said these were all connected. all these issues were, however, decided against the defendants. aggrieved, the defendants have filed this appeal.(6) the evidence in the case is basically documentary, though oral evidence was also led. (7) the issues framed seem to be rather lopsided. the principal issue should have been whether the plaintiff is the owner of the property in question. however, this issue may perhaps be covered under issue no.6 which is whether the plaintiff is entitled to the relief of possession.(8) the suit of the plaintiff is based on his plea that he is the owner of the whole of the property in question of which defendants claim to be the part owners of a specified portion.(9) dev raj, brother of the plaintiff, was owner of the properly. he purchased the same by sale deed dated 12 april 1971 from uttaam chand (sale deed is ext. pw3/1 and was filed by the plaintiff). plaintiff said that he purchased this property from his brother on 13 july 1977. this statement is not wholly correct. there is no sale deed executed by dev raj in favor of the plaintiff. dev raj executed a general power of attorney (ext. pw1/2) in favor of his brother, the plaintiff, which is dated 13 july 1977. it is an unregistered document. dev raj also executed an agreement for sale (ext. pw1/1) in favor of ram chand which is dated 13 july 1977. under this agreement dev raj agreed to sell this house which measured 150 square yards for a consideration of rs.10,000.00 of which he admitted already having received rs.2,000.00 as earnest money. this is also an unregistered document. then there is a certified copy of receipt (ext. pwi/3) executed by dcv raj for having received rs.10,000.00 from his brother ram chand, rs.2,000.00 earlier received and rs.8,000.00 at the lime of execution , of the receipt. it is a registered document and was presented before the sub registrar on 13 july 1997 and registered on the following day. dev raj also executed a will dated 13 july 1977 (ext. pwi/4) under which he bequeathed the property to his brother ram chand, the plaintiff. the will is limited to bequeathing of this properly only. then there is an affidavit dated 13 july 1977 (ext. pwi/5) executed by dev raj deposing that he had sold his house to his brother and also delivered vacant possession of the same to him at the site. ext. pw3/2 is the plan of the premises. ext. pw3/3 is a copy of notice dated 21 april 1981 addressed by counsel for the .plaintiff to naraini devi stating that he was owner of the property and had purchased the same from dev raj who had executed all the documents respecting the sale, and that he was also in possession of the original sale deed. the notice said that plaintiff understood that first defendant was entering into an agreement with the said dev raj and she was asked not to do so. a copy of this notice was, however, not marked to dev raj. as noted above, the case of the plaintiff was that after purchase of the house from dev raj he had let out the same to dev raj at the rate of rs.80.00 per month and, thus, dev raj was in possession of the property. in normal circumstances notice or copy of notice should have been addressed to him as well.(10) then there is a separate set of documents of the defendants : (1) ext. dw6/1 is the will executed by dev raj on 15 may 1981 bequeathing 80 sq. yds. out of the property to naraini devi, the first defendant. dev raj says he is the absolute owner of whole of the property. this will is registered with the sub registrar (the will executed earlier by dev raj in favor of his brother ram chand is not registered); (2) ext. dw4/3 is the receipt given by dcv raj for having received the house tax amount of rs.300.00 for the year 1981-82. the receipt is dated 23 march 1982 filed by defendants; (3) ext. dw4/4 is another receipt dated 3 january 1983 given by dev raj having received rs.405.00 for house lax for year 1982-83 mentioning that the house had not yet been mutated in the name of naraini devi; (4) ext. dw4/2 is another receipt dated 23 march 1982 by dcv raj for having received rs.937.50 stating that he had sold 80 sq. yds. of land for rs.17,000.00, but 4 square yards of land had gone excess and for that he had charged at the rate of rs.250.00 per square yard; (5) ext. dw3/1 is the agreement to sell dated 11 march 1981 between dcv raj and first defendant for sale of 80 sq. yds. of land for rs.17,000.00, rs.7,000.00 having already been received and rs.10,000.00 more was paid. the agreement said that the actual physical possession of the properly has been given to the first defendant; . (6) ext. dw3/2 is the receipt given by dev raj for having received rs.17,000.00, rs.7,000.00 earlier and rs.10,000.00 at the time of execution of the receipt dated 11 march 1981. it is a registered document; (7) ext. dw3/3 is the general power of attorney executed by dcv raj in favor of the first defendant; (8) ext. dw3/4 is the affidavit dated 11 march 1981 executed by dev raj stating that he had appointed first defendant as the lawful attorney and for having sold the property for rs.17,000.00 which amount he received and also possession handed over; (9) ext. dw4/1 is the property tax bill dated 24 september 1985 in the. name of the first defendant; (10) ext. dw4/2 is the electricity bill in the name of roop kishore, second defendant, respecting electric meter at the same properly; (11) ext. dw2/1 is a notice dated i march 1988 addressed to the defendants from the united commercial bank, krishan nagar, wherein it is mentioned that a term loan of rs.25,000.00 was given to sangeeta saree prints' of which second defendant was owner and that first defendant gave guarantee of the property in question. on record there is a photo copy of the sale deed of whole of the property by which properly was purchased by dev raj. mark 'a' is a copy of the will dated 15 may 1981 executed by dev raj bequeathing his 80 square yards of the property in favor of the first defendant. this is also a registered document.(11) all these documents have been properly proved on record and these documents would show the following conclusions :- 1.dev raj was owner of whole of the property. he died some time in 1986. 2.no title of the properly had passed to the plaintiff as no sale deed had been executed. his claim is based on the pica of part performance under section 53-a of the transfer of property act. there is no evidence of his being in actual physical possession of the properly. rather he says that he had let out the same to dev raj, his brother, at the rate of rs. 80.00 per month as rent. it was dev raj who was in actual physical possession of the property. prima facie doctrine of part performance becomes inapplicable. 3.there is no reasonable explanationn as to why copy of the notice dated 21 april 1981 (ext. pw3/3) was not addressed to dcv raj and why the plaintiff did wait till 16 july 1987 to file the present suit after his brother had died particularly when the plaintiff says in the plaint that cause of action arose in his favor in the year 1983. 4.the fact that the defendants were in actual physical possession of the properly could not be disputed inasmuch as it is the case of the plaintiff himself that they were in possession and further house tax receipt and electric meter hill and the notice from the bank show that they were in possession for quite some time. the plea of part performance under section 53-a of the transfer of properly act could be raised only by the defendants and not by the plaintiff. 5.defendants' explanationn that they did not reply to the notice of the plaintiff sent to first defendant in 1981 appeared to be rather quite reasonable. they say that after receipt of the notice they met dev raj who asked them to ignore the same and executed a will which is duly registered one. since also dcv raj has died, on the basis of this will, which is of later dale than that in favor of the plaintiff, the defedants have a better right to this properly. (12) the plaintiff has not brought on record any evidence to show that he did create any tenancy after having purchased the properly from his brother dev raj in favor of dev raj. in the absence of any evidence this part of the statement cannot be accepted.(13) the title to the property did not pass to the plaintiff in the absence of the sale deed executed in his favor. valid title also did not pass to the first defendant as there was no sale deed in her favor as well. but she has a defense of part performance in her favor and she also rightly claims to be the owner by virtue of the will executed in her favor by dev raj who continued to be the owner of the suit property till his death. of course, dev raj himself could not have succeeded if he had filed a suit for possession against the defendant no.1 (the appellant no. 1) as she had taken possession of the properly in part performance of the contract of sale.(14) we, thereforee, allow the appeal and dismiss the suil. we, however, direct that parties shall bear their respective costs throughout.