j,; * IN THE HIGH COURT OF DELHI AT NEW DELHI + CSfOS)899/2010 ^ Date of Decision: September 24, 2010 KRISHANLAL KATHURIA Plaintiff Through; Mr. DeepakVohraand Mr. Krishan Kumar, Advocates. versus AZAD SINGH Defendant Through: Mr. B.S.Maan,Mr. Jai Prakash, Mr. Hardeep Singh and Mr. R. Dagar, Advocates. % CORAM: HON'BLE MS. JUSTICE ARUNA SURESH (1) Whetherreporters of local paper may be allowedto see the judgment? (2) To bereferredtothe reporterornot? (3) Whetherthejudgmentshouldbe reportedin the Digest? JUDGMENT ARUNA SURESH, J. 1. Plaintiff has filed the presentsuit for possessionin respectof property No.B-66, Village Rangpuri, Vasant Kunj, New Delhi and for permanentinjimction,thereby restrainingthe defendants,his associatesetc. from interferingwith the suit propertyincludingraisingofany construction or partingwithpossessionor creating thirdpartyinteresttherein. 2. In brief, case ofthe plaintiffis that in 2004, defendantoffered to sell his one-third share in the property, admeasuring660 square yards CS(OS) No. 899/2010 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified comprisedin Khasra No.1291 situatedat VillageNangal Dewat, Delhi, on 'as is whereis basis'. Plaintiffagreedto purchasethe saidpropertyfor asale considerationofRs.3,00,000/-(ThreeLacs). At the time ofexecutionofthe Agreementto Sell,plaintiffwas informedby the defendantthat propertywas under acquisition and if acquisition proceedings were dropped, plaintiff wouldretainthe possessionand ownershipofone-thirdshare and ifland was acquired and alternate land was allotted to the defendant, plaintiffwould become the owner of the said alternateland of which defendantagreed to executerequisitedocuments. Initiallyplaintiffpaid asum of Rs.1,00,000/- (One Lac) againstreceiptand he was put in possessionof40 squai'eyardsof land out of220 square yards in Khasra No.1291 situatedat VillageNangal Dewat,Delhiby the defendant. On 6'" October2005, defendantinformedthe plaintiffthathe was allottedalternateplotNo.66,Block-B,VillageRangpuri, VasantKunj, New Delhi in lieuofhis one-thirdshare. Thereafter,defendant receivedthe balance amount of Rs.2,00,000/-(Two Lacs) in full and final sale priceofthe propertyand he executedthe followingdocumentsin favour of the plaintiff;- "a. Agreement to sell dated 3.3.2006 (Registered vide Document No.5820, registration No.3024, Book No.l VolumeNo.2681 page 101 to 106 dated3.3.2006) b. General Power of Attorney in favor of the plaintiff dated 3.3.2006 ((Registeredvide registration No.2390, Document No.5821, Book No.4 Volume No.943 on page 191 to 194dated 3.3.2006) CS(OS)No. 899/2010 Page2of14 -X c. SpecialPowerofAttorneyin favorofthe plaintiffdated 3.3.2006 (Registered vide registration No.2392, Document No.5823, Book No.4 Volume No.943 on page 197 to 199 dated3.3.2006) d. SpecialPowerofAttorneyin favorofthe plaintiffdated 3.3.2006 (Registered vide registration No.2393, Document No.5825, Book No.4 Volume No.944 on page 1to 2dated3.3.2006) e. SpecialPowerofAttorneyin favorofthe plaintiffdated 3.3.2006 (Registered vide registration No.2391, Document No.5822, Book No.4 Volume No.943 on page 195 to 196 dated3.3.2006) f. Affidavit of Azad Singh, the defendant. e. Receiptdated3.3.2006ofRs.2,00,000/-issuedbyAzad Singh. h. PossessionLetterissuedbyAzadSingh,the defendant. i. Registeredwill ofAzad Singh, the defendantexecuted in favorKrishanLai Kathuria,the plaintiffregisteredas document No.5824, RegistrationNo.387, Book No.3 VolumeNo.402onpages 137 to 138 dated3.3.2006)." 3. It is averred by the plaintiffthat at the time of executionand registrationofthe said documents,defendanthad ensuredhim that he would be put into actual physical possession of the suit property only when possessionof one-third share of the property situated at Village Nangal Dewat,Delhiwouldbe surrenderedto the Government. Defendantinsteadof honouringthe commitmentturned dishonestand startedlookingfor another buyer for the propertyat VillageNangal Dewat, Delhi under possessionof the plaintiff. Plaintiffvisitedthe propertyand found that his possessionon 40 squareyards ofland out of220 square yards ofthe propertywas intact. CS(OS)No. 899/2010 3of14 However, defendantfailed to hand over the possessionof the remaining property despite repeated requests and service of legal notice dated 1'' November,2008, whichwas duly repliedby the defendanton 1'' December, 2008, revealingthat the Governmenthad acquiredthe propertyin the year 2007. Defendantto the dismay of the plaintifftook possessionof the suit property,whereashe was underobligationto hand over its possessionto the plaintiff On 27"" February,2009 when plaintiffvisitedthe suit property,he foundthat someconstructionwas goingontherein.Hence,the suit. 4. Maintainabilityofthe suit for possessionis in questionbefore the Court. 5 Mr.DeepakVohra, counselfor the plaintiffhas submittedthat therewas no needto file a suitfor specificperformanceofthe contractas the defendantentered into a contractwith the plaintiffto sell the suit property and subsequently sold the same to the plaintiffvide registereddocuments. As per law, the executionand registrationof aforesaiddocumentsin favour of the plaintiffamounts to outrightsale and there was no occasionto seek specific performance in as much as all the obligations in terms of the agreementstoodperformed. Itis furtherarguedthat elementsoftransfer are completein favour ofplaintiffand also that the defendanthas forgone his right ofpossessionin the suit propertyin favourofthe plaintiffthus making him exclusivelyentitledto the possession. 6. It is furthersubmittedby counselfor the plaintiffthat it is well CS(OS)No. 899/2010 Page4of14 a settledthat there is an inherentright in everypersonto bringa suitofacivil nature and unlessthe suit is barredby statute,one may at ones peril bringa suit on ones choiceand it is no answerto a suit howeverfrivolousthe claim that the law confers no such right to sue and suit for its maintainability requiresno authorityoflaw and it is enoughthatno statutebarsthe suit. He has furthersubmittedthatcauseofactionofthe presentsuit is baseduponthe title againstunauthorizedoccupationof the suit propertyby the defendant. The causeofactionis basedon the unperformedobligationofthe contractby the defendantfor whichthe plaintiffhas suedhim. 7 Mr.B.S.Maan,counselappearingon behalfofthe defendanthas submittedthat in the presentsuitthereisno causeofactionwhichwarrantsa suit for possessionand that the plaintiffshould have insteadfiled a suit for specificperformanceofthe contract. He has allegedthatplaintis liableto be rejectedunder Order 7 Rule 11 CPC as suit for possessionwithoutspecific performanceofthe Agreementto Sellis not maintainable. 8. It is pertinentto mentionhere that plaintiffhad earlierfiled a suitbeingCS No.38/2009for recoveryofpossessionand consequentialrelief for permanent injunction as prayed in this suit before the Civil Judge. However,he withdrewthe said suit with libertyto file this suitinviewofthe valuation of the suit property, which was found to be more than Rs.20,00,000/-(TwentyLacs) and exceededthe pecuniaryjurisdictionofthe Civil Court. Pleadingscontainedin the said plaint are at variancewith the CS(OS)No. 899/2010 Page 5of14 pleadingsaverredby the plaintiffin thepresentplaintbeforethe Court. Para- 3 ofthepreviousplaintreads "3. That the defendant had represented to the plaintiffthat he was the owner of one/thirdundivided share in the land totally admeasuring660 sq.yds. in Khasra No.1291, village Nangal Dewat, New Delhi and also that the same had been acquired by the Government,againstwhich the defendantexpectedto receive possessionof an alternativeplot of land and thus offeredto sell the one/thirdundividedright in the said land on "as is where is basis" for valuable consideration." 9. Thus, it is clear that at the time when plaintiffenteredinto an Agreementto Sell withthe defendant,he was in the loiowledgethat land had been acquiredby the Governmentagainstwhich the defendantexpectedto receivepossessionofan alternateplotofland. In the plaintbeforethis Court, plaintiffhas takenasummersaultand has allegedin para4ofthe plaint:- "4. The plaintiffwas, however,apprisedby the defendant at this time that the above described property was under acquisitionproceedings. The defendantoffered that in case the acquisitionproceedingsare droppedor are not proceededfurther i.e. the above said one third shareis not acquiredthan theplaintiffwouldretainthe possessionand ownershipof such one third share. Or else i.e. if alternative land is allotted to the defendant than it would be the plaintiffwho would be owner of such alternate land and the defendant would execute formal documents in this regard subsequently." 10. Inthe earlierplaint,it was not the case of the plaintiffthat he was handed over physicalpossessionof40 square yards ofland out of220 square yards of the property admeasuring660 square yards comprised in CS(OS)No. 899/2010 6of14 w KhasraNo.1291 situatedat VillageNangal Dewat, Delhi. However,in this casehe has emphasizedthat on executionofthe Agreementto Sell dated 3'" March 2006, he was handed over vacant possessionof 40 square yards of landcomprisedin KhasraNo.1291 situatedat VillageNangalDewat,Delhi. I][ Perusalofthe Agreementto Sell indicatethat it was executed by the defendantonly in respectofplotNo.66,Block-B,measuring40 square yards situated at Village Rangpuri, Vasant Kunj, New Delhi. This Agreementdoes not find mentionofone-thirdshare ownedby the defendant in land admeasuring660 square yards, Khasra No.1291 situatedat Village NangalDewat. As per Clause2ofthe Agreement,defendantwas allegedto have handed over actual physicaland proprietaryvacant possessionof the property in suit i.e. plot No.66, Block-B, Village Rangpuri, Vasant Kunj, New Delhi to the plaintiff Similar are the facts containedin the General Power of Attorneyof the even date. SpecialPower of Attorneys(three in number)dated 3"^ March2006, affidavitofthe defendantand the Will ofthe defendantofevendate, all pertainto plotNo.B-66,VasantKunj, New Delhi, i.e. the impugnedproperty. Even the receiptofthe balance consideration amountofRs.2,00,000/-(Two Lacs) is also inrespectofthe propertyin suit. Possessionletteralso pertainto the propertyin suit. It is significantto note thatpossessionletteris undated. Exceptthe possessionletterand the receipt, all otherdocumentsare registered. None ofthe documentsexecutedinterse the parties,therefore,in any manner, indicatethat plaintiffwas put in part CS(OS)No. 899/2010 Page7of 14 -> possessionof 40 square yards of land in Khasra No.1291 Village Nangal Dewat, Delhi. ][2. As discussedabove, in the earliersuit filed by the plaintifffor the same reliefhe neverclaimedthat he was givenphysicalpossessionof40 squareyards of land out of 220 squareyards of propertyat VillageNangal Dewat, Delhi. Legal notice dated 1'' November, 2008 served upon the defendantby R.D.Sharmaand Associates,Advocatesfor and on behalfofthe plaintiffis in respect of possession of remaining land admeasuring 160 square yards in Khasra No.1291, Village Nangal Dewat, Delhi and not in respectof the propertyin suit, knowingit well that the said land in Village Nangal Dewat, Delhi stood acquired by the Government. Plaintiffhas improvedoverhis case in the presentsuit. Plaintiffhas not placedon record any documentto show that defendanthad actuallygiven him possessionof 40 square yards of land in Village Nangal Dewat, Delhi. Present suit, therefore,is for possessionofplot No.B-66,VillageRangpuri,VasantKunj, New Delhi. 13. Admittedly, as per the pleadings contained in the plaint, plaintiffwas not given physical possessionof the impugned plot by the defendantthough there is a clause to that effect in the Agreementto Sell dated 3'^'' March,2006. 14. Letterdated 7'*" September2006, issuedby DelhiDevelopment Authority(for short 'DDA') was addressedto Shri Chand, predecessor-in- CS(OS)No. 899/2010 ^ interestof the defendant,informinghim about the allotmentof plot No.66, Block-B,VillageRangpuri,VasantKunj, New Delhi in lieu ofplot acquired in VillageNangalDewat,Delhi. Possessionofthe said plot was not handed over to Shri Chand for the reasons that the land in Nangal Dewat, Delhi, acquiredwas yet to be physicallytaken over by the DDA. There is another letter dated 9*^ June, 2007 addressed to Shri Chand, late father of the defendantregardingallotmentofthe impugnedplot on free hold basis. Vide letterdated 20"^ July 2007, DDA informedShri Chand its intentionto hand overphysicalpossessionofthe impugnedplotto him. Vide letterdated29 January 2008, defendantalongwithhis brothersRajenderand Vijay Kumar i.e. legalheirsofdeceasedShri Chandwere askedto be presentat the spoton 12"" February,2008 at 11.00 AM to take possessionofthe plot. Possession was accordinglygiven to the defendantand his brothers on 12 February, 2008 as acknowledgedby them under their signatures. Thus, it is clearthat defendantAzad Singhwas not in actualphysicalpossessionofthe impugned" propertyat the time when Agreementto Sell, General Power of Attorney, Special Power of Attorneys,Will etc. and other relevant documents were executedbyhim infavourofthe plaintiff 15 Shri Chand,predecessor-in-interestofthe defendantwas one of the writ petitionersbefore this Court in WP(C) No.481/1982,whereby the acquisitionproceedingswere challenged. In the said writ petition,titled as "DaryaoSingh &Ors. Vs. Union ofIndia &Ors.", 2005 (83) DRJ 573, CS(OS)No. 899/2010 ^ r- various applicationsincludingone by Shri Chand were filed, which were disposedofby this Courtvide detailedorderdated 18""May, 2005. The said order becomes relevant to appreciate if the suit of the plaintiff is maintainable. Vide said order, the Court consideredvariousobjectionsand claimsofvariouspersonsincludingthe legal heirs ofdeceasedclaimants. It was held that it would be ajoint allotmentofthe alternateplot to the legal heirs ofthe applicantseligiblefor allotmentofindividualalternativeplot. It was also observedthat no claimfor allotmentofalternateplot basedon sale, mortgage,gift, relinquishment.Power of Attorney,or Will after 28"" April, 1972,wouldbe acceptedand entertainedby the NodalOfficer. 16. Admittedly,plaintiffcouldnot claimallotmentofthe impugned plot basedon the Agreementto Sell executedby the defendant,beingone of the legal heirs of deceasedShri Chand. As pointedout above, the plot was allotted in the joint name of the defendant and his two brothers. Since physicalpossessionofthe plot was not receivedby the defendant,he could not have handedover the actual physicalpossessionof the impugnedplot to the plaintiff. Probably, this is one of the reasons that plaintiffhas not ' claimedthat he was put in physicalpossessionofthe impugnedplot by the defendant. He is claimingpartpossessionof40 squareyardsoflandforming part of Khasra No.1291, Village Nangal Dewat, Delhi by virtue of Agreementto Sell dated 3"^ March, 2006, which alreadystood acquiredand as discussedabove, plaintiffcould not have been put in possessionof the CS(OS)No. 899/2010 10 of14 acquired land which vested with the Government. 17. A mere Agreementto Sell of an immovablepropertydoes not createan absoluterightas ownerinfavourof thepurchaserin thepropertyto enforce the said agreement by claiming possession. Therefore, in law plaintiffhas no right to claim possessionofthe impugnedpropertywithout claimingspecificperformanceoftheAgreementto Sell. 18. As defendantis in continuouspossessionof the propertyin suit since its allotmentand subsequentphysicalpossessionsince 12"' February, 2008, plaintiffshould have insisted for performanceof the Agreementto Sell. The moment defendant refused to hand over possession of the property to the plaintiffin breach of the Agreementto Sell, cause of action which arose infavourofthe plaintiffwas to file a suit for specificperformanceand perpetualinjunction. The law requires that all those reliefsbased on same cause of action should be pleaded and claimedin the same suit and should not be claimedby separatesuits. In view of Section41(h) of the Specific ReliefAct, the Court shouldnot grantperpetualinjunctionwhere thereis an equallyefficaciousremedyis availableto aparty. In the presentcase, equal efficacious remedy in which the injunctioncan be claimed is a suit for specific performance with perpetual injunction. Sale Deed was to be executed after possessionof the alternativeplot was handed over to the defendantby the DDA. These facts clearlypoint out that the Agreementto Sell could be enforcedonly after physicalpossessionofthe propertyin suit CS(OS)No. 899/2010 Page 11 of 14 \o was obtainedby the defendantby way ofsuitfor specificperformanceofthe Agreementto Sell. 19. Mr.DeepakVohra, counselappearingon behalfofthe plaintiff has referred to "Sparsh Builders Pvt. Ltd. Vs. Maharishi Ayurveda ProductsPvt. Ltd.",174 (2009)DLT411,"J.C.MehraVs. Kusum Gupta", 117(2005)DLT506, "ShrimantShamraoSuryavanshi&Anr. Vs. Pralhad Bhairoba Suryavanshiby Lrs &Ors.", AIR 2002 SC 960, "Sadashiv Chander Bhamgare Vs. Eknath Pandharinath Nangude", AIR 2004 Bom378, "MahadeoNathujiPatil Vs. SurjabaiKhushalchandLakkad& Ors.",(1994)96BOMLR846, "Smt. GangaBai Vs. VijayKumar&Ors.", AIR 1974 SC 1126, "Yenugo Vs. Eranki Venkata Suba Rao", 1956 ANDHWR 830 and "MadanMohan Vs. GauriShankar",AIR 1988 (MP) 152 to emphasize that Section 53A of the Transfer of Properties Act (hereinafterto be referredas 'TP Act')protectshis possessionand therefore, he is entitledto claim possessionof the property in suit. None of these judgmentsare of any help to the plaintifffor the reason that he is out of possessionofthe plot in suit and its actual physicalpossessionwas never handedover to him. Agreementto Sell is contigentaland couldbe enforced only after defendant had received the actual physical possession of the I impugnedplot. Even the writing claimedby the plaintiffdoes not provide possessionof the plot having been deliveredto him in pursuance of the Agreement to Sell. CS(OS) No. 899/2010 Page 12 of 14 r 20. In all the saidcases,possessionofthe propertywas also handed over to the purchaseron receipt of full considerationof the sale amount, though the regular Sale Deed was not executed. It was under those circumstancesthat the CourtconsideredapplicationofprovisionsofSection 53A TP Act as regards possessionand Section 22 ofthe Contract Act as regardsPower ofAttorneysexecutedfor consideration. True that there is a practice prevalent in Delhi of properties being transacted by modes of Agreementto Sell, PowerofAttorney,Will etc. and the physicalpossession of the property is also deliveredto the purchaser. Section 53A TP Act protectsthe possessionofthe prospectivepurchaserin the property,even if the period of limitationfor institutinga suit for specificperformancehas expired. This principleoflaw is no longerres integraand is beingfollowed in variousjudgmentsby the SupremeCourtas well as by this Court. 21. In the presentcase, plaintiffhas claimedpossessionofthe suit propertywithoutclaimingspecificperformanceofthe Agreement. Since he is not in possessionof the property,he is not entitledto any equity under Section53A TP Act. At the time when Agreementto Sell was executedon 3'''' March 2006, the land vested in the Governmentand physicalpossession ofthe impugnedpropertyi.e. plotNo.B-66.VillageRangpuri,VasantKunj, New Delhihadnot yetbeentransferredto the defendant. 22. Plaintiffhas very cleverlydraftedhis plaint while seekingthe reliefof possession. Mere draftingof a plaint in a clever manner, which CS(OS) No. 899/2010 r otherwiseis liable for rejection,cannotbe made maintainable. The purpose of Order 7 Rule 11 CPC is to nip in the bud those litigationswhich are otherwisedoomed and not to allow them to take up the time of the courts and/or not to allow multiplicityof litigations. 23. Therefore,the suit of the plaintifffor possessionwithout the relieffor specificperformanceof the Agreementto Sell, dated S"* March, 2006 is not maintainable. The relief of injunctionas sought against the defendantis based on the possessionclaimed by the plaintiff Therefore, unlessthe plaintiffhas full title in Ihe property,he is not entitledto claimany injunctionas prayedbecause,it cannotbe said that there is an infringement ofhis rightsin the property. Besidessuit is barredU/s 41(h) ofthe Specific ReliefAct as equallyefficaciousremedywas availableto the plaintiff. 24. Hence, plaint is rejectedunder Order 7 Rule 11 CPC. There are no orders as to costs. SEPTEMBER 24, 2010 sb CS(OS)No. 899/2010 ARUNA SURESH (JUDGE) a/Jo (A Page 14 of 14 jiP-^