RFA/13/2014 of CHANDERBHAN MALIK Vs CHANDER PRAKASH SABHARWAL

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on : October 27[th], 2017

+RFA 13/2014

CHANDERBHAN MALIK

..... Appellant

Through:Mr.Saurabh Kansal, Advocate withappellant in person.

versus

CHANDER PRAKASH SABHARWAL..... RespondentThrough:Mr.Naresh Gupta, Mr.Gaurav Gupta,Advocates.

CORAM:HON'BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

JUDGMENT

1.The appellant has filed the present appeal being aggrieved bythe judgment and decree dated 18.12.2013 passed by the learnedAdditional District Judge, Delhi whereby the suit filed by theappellant/plaintiff stood dismissed.

2.The facts enumerating from the plaint filed before the Courtbelow are that the appellant/plaintiff had purchased propertyno.1770, Gali No.7 & 8, Govindpuri Extension, Kalkaji, New Delhi-110019 measuring 200 sq. yards from Shiv Dayal on 16.06.1966 for asum of Rs.99/-. It was an agricultural land comprising khasra no.93.The said plot was mutated by the plaintiff/appellant with MCD on asale value of Rs.900/- by paying the transfer duty on 10.08.1979

RFA 13/2014

which was intimated vide letter dated 20.08.1979.The plaintiff/appellant had been depositing the house tax since 1979.The suitproperty was given to the respondent on rental basis. On 30.11.1990,a notice was issued by the plaintiff/appellant to the respondentdemanding rent and thereafter eviction petition under Section 14(A) ofthe Delhi Rent Control Act, 1958 which was later on converted into apetition under Section 14(C) of the DRC Act. The said petition wasallowed and the matter reached Hon’ble Apex Court wherein thematter was remanded back. The matter was decided in favour of therespondent/defendant holding that there was no relationship oflandlord and tenant between the parties. Vide order dated 09.02.2004,the Hon’ble Apex Court gave liberty to the appellant/plaintiff toapproach the Civil Court to establish his right, title and interest overthe suit property. On 29.04.2004, the plaintiff/appellant sent noticeto the defendant/ respondent to vacate the premises but the same wasrefused. Thereafter the suit for declaration, possession and recoveryof damages and mesne profits was filed before the Court below.

3.In the written statement filed on behalf of the defendant/respondent,differentobjectionshavebeentakenbytherespondent/defendant, like the suit was barred by res-judicata in viewof judgment dated 19.08.1998; suit was barred by time; suit was notproperly valued for the purpose of court fee and jurisdiction.Onmerits, it was submitted that the plaintiff/appellant was not the ownerof the suit premises.The measurement of the premises is 235 sq.yards and not 200 sq. yards as alleged. The allegations with regard to

mutation of the premises with MCD and payment of transfer dutywere false.In the earlier eviction petition, case of the plaintiff/appellant was that he was the owner of the suit premises but he failedto prove his ownership. The respondent/defendant was in possessionof the suit premises and his possession was lawful. Rest of the case ofthe plaintiff/appellant was denied by the defendant/respondent.

4.On the basis of pleadings of the parties, following issues wereframed by the Court below :

(1)Whether the suit has been filed within the period oflimitation? OPPlimitation? OPP

(2)Whether the suit is barred by the principle of res judicata asalleged by the defendant? OPD

(3)Whether the plaintiff is the owner of the suit premises asalleged by him? OPP

(4)Whether the plaintiff is entitled to relief of declaration inrespect of suit property or possession of the suit property fromthe defendant? OPP

(5)Whether the plaintiff is entitled to recover any amount onaccount of damages/mesne profits? If so at what rate, to whatamount and for what period?

(6)Whether the suit has been properly valued for the purpose ofcourt fee and jurisdiction, if so its effect? OPP

(7)Relief

5.Vide impugned judgment, the issue nos.2 and 6 were decidedagainst the defendant and in favour of the plaintiff. Issue nos.1 and 3to 5 were decided against the plaintiff and in favour of the defendant.

Feeling aggrieved by the decision on issue nos.1 and 3 to 5, thepresent appeal has been preferred by the plaintiff/appellant.

6.Arguments advanced by the counsel for the parties were heardand I have gone through the evidence available on record.

7.Argument advanced by the counsel for the appellant is that theappellant purchased the suit property on 16.06.1966 for sum ofRs.99/- and the plot was initially an agricultural land.Afterpurchasing the suit property, the appellant got it mutated with MCDon sale value of Rs.900/- by paying the transfer duty on 10.08.1979.Thereafter, the appellant had paid the house tax. It was submitted thatthe sale deed, mutation papers and house tax receipts in favour of theappellant prove his ownership on the suit property. It was submittedthat since the suit property was purchased for value of less thanRs.100/-, there was no legal impediment to get the documentsregistered.It was further argued that on 30.11.1990, the appellantissued notice to the respondent to pay rent but since the respondenthad not paid the rent, the appellant had filed an eviction petitionagainst him which was ultimately dismissed by the Court below. Itwas further argued that during proceedings before the Hon’bleSupreme Court, the appellant was given liberty to approach the civilcourt to establish his right, title and interest over the suit property.Thereafter, the suit in question was filed by the appellant. It is furtherargued that notice dated 29.04.2004 was issued to the respondent tovacate the premises, but the same was of no avail.It was furthersubmitted that the suit property is still in the name of the appellant and

the respondent had malafidely got the property mutated in his name.It was further argued that the principle of res judicata does not applyin the present case for the reasons that in the earlier instituted evictionpetition, the question involved was with regard to relationship oflandlord and tenant between the parties and not with regard toownership.It was further argued that the suit was well withinlimitation as the period spent in earlier litigation is to be excluded.

8.In support of the above contentions, counsel for the appellanthas relied upon judgment in case of S. Kaladevi v. V.R.Somasundaram and others (2010) 5 SCC 401 in which it wasobserved that Section 49 of the Registration Act, 1908 provides thatany document which is required to be registered, if not registered,shall not affect any immovable property comprised therein nor suchdocument shall be received as evidence of any transaction affectingsuch property. It was further observed that when an unregistered saledeed is tendered in evidence as proof of an oral agreement of sale, thedeed can be received in evidence making an endorsement that it isreceived only as evidence of an oral agreement of sale under theproviso to Section 49 of the Registration Act, 1908. Next judgmentrelied upon is the case of Padma Vithoba Chakkayya v. Mohd.Multani and another AIR 1963 SC 70 in which it was observed thatthe endorsement of cancellation on the back of the sale deed by thesecond defendant in favour of the first defendant is admissible inevidence to show the character of possession of the latter. On similarpoint, judgment in the case of SMS Tea Estates Private Limited v.

Chandmari Tea Company Private Limited (2011) 14 SCC 66 hasbeen relied upon. Next judgment relied upon is the case ofM.P. SteelCorporation v. Commissioner of Central Excise (2015) 7 SCC 58inwhich it was observed that in an application for condonation of delaythe appellant pointed out that they were pursuing remedy beforeanother appellate forum which ought to be excluded.The Hon’bleApex Court found the reasoning given by the appellant sufficient tocontend that Section 14 of the Limitation Act or principles laid downunder it would be attracted to the facts of the case. Next judgmentrelied upon is the case of Tribhuvanshankar v. Amrutlal (2014) 2SCC 788 in which it was observed that the relief sought in the plaintwas for delivery of possession. It was not forum that lacked inherentjurisdiction to pass decree for delivery of possession. It showed theintention of the plaintiff to act and to take back the possession. It wasfurther observed that after the institution of the suit, the time foracquiring title by adverse possession had been arrested or remained ina state of suspension till the entire proceedings arising out of suit wereterminated.Be it ingeminated that if by the date of the suit thedefendant had already perfected title by adverse possession that wouldstand on different footing.

9.Per contra, arguments advanced by the counsel for therespondent are that the suit filed by the appellant/plaintiff was barredby limitation. It was further argued that the appellant is not the ownerof the suit property. It was submitted that earlier an eviction petitionwas filed by the appellant against the respondent specifically claiming

therein that the appellant was the owner of the suit premises and thereexisted relationship of landlord and tenant between the parties. Thesaid petition had been dismissed by the Hon’ble Apex Court thusdenying the case of the appellant/plaintiff that he was the owner of thesuit premises.It was further submitted that the appellant hadcontended that he had filed the eviction petition assuming therespondent as tenant and then the suit in question was filed claimingthe respondent as an unauthorized possessor of the suit premises. Theissue with regard to ownership of the appellant over the suit propertyhas already been decided and thus the suit was barred by the principleof res judicata too. It was further argued that there is no document onrecord to establish the ownership of the appellant over the suitproperty. The appellant has claimed the ownership on the basis of saledeed dated 16.06.1966 showing that it was purchased for sum ofRs.99/-, but the said document does not confer any right to theappellant over the suit property for the reasons that as per Section 54of the Transfer of Property Act, 1882 if the value is less than Rs.99/-with regard to immovable property, then the person could acquire titleonly by way of execution of registered sale deed or by delivery of itspossession. It is further argued that the appellant has never pleadedthat he was handed over possession of the suit property and the rightof the respondent over the suit property is on the basis of adversepossession.

10.The main issue to be decided in the present case is whether theappellant/plaintiff is the owner of the suit property or not. To prove

his ownership over the suit property, the appellant/plaintiff relied upondocuments Ex.PW1/2 and Ex.PW1/3.Ex.PW1/2 is the sale deeddated 16.06.1966 claiming to be executed by Sh.Shiv Dayal in favourof the appellant/plaintiff for sum of Rs.99/-. Ex.PW1/3 is the receiptof the transaction. It is apparent from the sale deed Ex.PW1/2 that it isnot registered document. It is also apparent from the record that theappellant/plaintiff had not pleaded in his entire pleadings that he wasever handed the possession of the suit property.The appellant/plaintiff has claimed the ownership on the basis of sale deedEx.PW1/2, but admittedly it is not registered document. It would berelevant to quote Section 54 of the Transfer of Property Act, 1882. Itreads :

“54. ‘Sale’ is transfer of ownership in exchangefor price paid or promised or part-paid and part-promised. Sale how made. Such transfer, in thecase of tangible immoveable property of the valueof one hundred rupees and upwards, or in the caseof reversion or other intangible thing, can bemade only by registered instrument. In the caseof tangible immoveable property of value lessthan one hundred rupees, such transfer may bemade either by registered instrument or bydelivery of the property. Delivery of tangibleimmoveable property takes place when the sellerplaces the buyer, or such person as he directs, inpossession of the property. Contract for sale.—Acontract for the sale of immoveable property is acontract that sale of such property shall takeplace on terms settled between the parties. It doesnot, of itself, create any interest in or charge onsuch property.”11.Section 54 of the Transfer of Property Act, 1882 provides thatin the case of tangible immovable property of value less thanRs.100/-, transfer of such property can be made only by way ofregistered document or by delivery of property. In the case at hand, itis the case of the appellant/plaintiff that he had purchased the suitproperty for sum of Rs.99/- vide sale deed Ex.PW1/2.It is anadmitted fact that the said sale deed is not registered document. Theappellant/plaintiff is claiming his ownership over the suit property onthe pretext that since the value involved was Rs.99/-, the sale deed wasnot required to be registered. There is no basis in this contention ofthe appellant/plaintiff for the reasons that Section 54 of the 1882 Actclearly provides that in case of transfer of an immovable property ofvalue less than Rs.100/-, it can be only by way of registereddocument or by delivery of property. It has also come on record thatthe possession of the suit property was never handed over to theappellant/plaintiffandthesameisinpossessionofthedefendant/respondent. It is also an admitted fact that the respondent isin possession of the suit property since 1979.

12.It has also come on record that despite purchasing the suitproperty for sum of Rs.99/- in the year 1966, the appellant/plaintiffvalued the same for sum of Rs.900/- at the time of its mutation,which falsifies the case of the appellant/plaintiff. Another importantaspect of the case is that neither Sh.Shiv Dayal was produced aswitness before the Court below nor any document showing hisownership in the suit property was produced on record. The appellant/

plaintiff also failed to provide any document on record to show that hewas in possession of title deeds of the suit property to prove his casethat either Sh.Shiv Dayal or the appellant had title in the suitproperty. Thus, the appellant/plaintiff has failed to establish his casethat he was the owner of the suit property. The judgments relied uponby the appellant/plaintiff are distinguishable from the facts andcircumstances of the present case and do not come to the aid of theappellant.

13.The next question involved in the present case is whether thesuit filed by the plaintiff/appellant was barred by time or not. It is thecase of the appellant that earlier he was pursuing another case by wayof eviction petition against the respondent and was given liberty by theHon’ble Apex Court to approach the civil court to establish his right,title and interest in the suit property which precluded him in filing thesuit within the time prescribed.

14.Perusal of record shows that earlier eviction petition was filedby the appellant on 22.05.1991 and it was dismissed by the Hon’bleApex Court in the year 2004.The suit was filed by the plaintiff/appellant on 02.08.2004. The claim of the appellant is that as he hadpreferred an eviction petition, thus he was bonafidely precluded infiling the present suit within time. This contention of the appellant isnot acceptable for the reasons that the eviction petition was filed bythe appellant against the respondent on the basis that the appellant wasthe owner of the suit property and since the respondent was not payingthe rent, he was liable to be evicted. The said litigation between the

parties came to an end in the year 2004 and thereafter on the libertybeing given by the Hon’ble Apex Court, the appellant had filed thesuit in question on 02.08.2004.In the suit, it was pleaded by theplaintiff/appellant that he had assumed the respondent as tenant andthat was the reason for filing the eviction petition.It was on theassumption of the appellant/plaintiff that the litigation went on from1991 till 2004 and then the suit was filed on 02.08.2004. It is apparentfrom the record that the earlier eviction petition was not filed by theappellant with due diligence and good faith. Firstly, he preferred theeviction proceedings and when he failed to succeed in the same, hefiled the suit claiming declaration, possession and damages.Theappellant has miserably failed to bring his suit within the prescribedtime and is thus barred by limitation.

15.As discussed above, this Court does not find any merit in thepresent appeal.The appellant/plaintiff has failed to make out anyerror in the impugned judgment and decree passed by the Court below.Consequently, the present appeal is dismissed.

16.No order as to costs.

OCTOBER 27, 2017dd

(P.S.TEJI)JUDGE

RFA 13/2014