FAO(OS) 42/2010 Page 1 of 5 * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO(OS) 42/2010 & CM No. 744/2010 (u/s 151 151 CPC for stay) JAGDISH SINGH ..... Appellant Through: Mr. G.L. Rawal, Sr. Adv. with Mr.Rajesh Rawal, Mr. Himanshu Singh, Advs. versus ARVINDER PAL SINGH & ORS ..... Respondents Through: Mr. S.N. Kalra, Adv. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW O R D E R % 15.01.2010 CM No. 745/2010 (u/s 151 CPC for exemption) Allowed, subject to all just exceptions. FAO(OS) 42/2010 & CM No. 744/2010 (u/s 151 CPC for stay) This appeal has been preferred by the defendant in the suit before the single Judge, against the order dated 4th December, 2009 dismissing his application under Order 7 Rule 11 of the CPC. Respondents No.1 to 3 – plaintiffs who are the son, daughter-in-law and grandson of the appellant-defendant have instituted the suit for declaration that they are the owners in possession of the entire second floor of property No. B-4/182, Safdarjung Enclave, New Delhi and for the relief of partition and consequential reliefs with respect to the said property. It is inter alia the case in the plaint that the perpetual lease of the land underneath the property is in the name of the appellant- defendant and his brother; that they have filed a collusive suit to deprive the respondents-plaintiffs of the second floor and their share in the remaining property; that the respondent No.1-plaintiff who is the son of the appellant-defendant had toiled hard while contributing for FAO(OS) 42/2010 Page 2 of 5 the acquisition, construction and maintenance of the property and in appreciation and acknowledgment thereof, the appellant-defendant had granted the “absolute right, title and interest in respect of the second floor” of the said property where the respondents-plaintiffs were residing, “by executing a registered and irrevocable general power of attorney dated 8th October, 2004 registered with the office of the Sub Registrar, Delhi” in favour of the respondent No.1 – plaintiff, to enable him to hold, enjoy and sell the said property as shown therein. 2. The appellant-defendant filed an application under Order 7 Rule 11 of the CPC for rejection of the plaint contending that the claim in the suit was barred by the provisions of the Benami Transactions Prohibition Act, 1988. It was further contended that even in the power of attorney, on basis of which the plaintiffs claim, the appellant- defendant is shown as the owner of the property and the power of attorney had also now been cancelled. However, a reading of the application shows that the emphasis therein is on rejection of the plaint for the reason of the claim therein being barred by the Benami law. 3. The learned single Judge has, in the order impugned in this appeal, held that the respondents-plaintiffs in the plaint were claiming right in the property on the basis of the registered power of attorney and hence the suit could not be dismissed outrightly without trial under the provisions of the Benami Act as the rights of the plaintiffs are to be determined and adjudicated on the basis of the documents executed by the appellant-defendant in favour of the respondent No.1-plaintiff. It was further held that under Order 7 Rule 11 of the CPC, only the averments in the plaint were to be seen and only if the respondents- plaintiffs had claimed a relief of declaration of the entire property FAO(OS) 42/2010 Page 3 of 5 belonging to him and the appellant-defendant being merely a Benamidar, could the suit have been said to have been barred by the Benami Act. It was held that the respondents-plaintiffs had claimed rights over the second floor on the basis of a document, viz., power of attorney executed by the appellant-defendant, independent of the title to the property. 4. No error can be found in the order of the learned single Judge holding that on a reading of the plaint vis-à-vis the second floor, the title is claimed on the basis of the power of attorney and not on the basis of the appellant-defendant being merely a Benamidar for the respondent No.1-plaintiff. Moreover, an order under Order 7 Rule 11 of the CPC is a discretionary order and no ground for interference with the discretion found to have been properly exercised by the learned single Judge is made out. 5. However, the senior counsel for the appellant has contended that it is also his plea that a bare perusal of the power of attorney, being the document filed by the respondents-plaintiffs themselves, does not make out a case of grant of any right, title or interest in the property in favour of the respondents-plaintiffs or any of them. We find the said plea to have been neither expressly made out in the application filed before the learned single Judge nor has it been dealt with in the order impugned of the learned single Judge. However, to obviate a fresh round in this regard, we have perused the power of attorney. The power of attorney though stamped as one between blood relations and stating the reason of the old and weak health and inability of the appellant-defendant to look after, maintain, manage, control and supervise the second floor with roof rights in the property, does contain absolute rights enabling the respondent-plaintiff No.1 to deal FAO(OS) 42/2010 Page 4 of 5 with the said second floor in all respects including to sell the same and to receive consideration amount in respect of the said property and also to execute deeds of all nature with respect to the said second floor and to appoint any other person as attorney with respect to the said property. The Division Bench of this Court in Asha M. Jain v. The Canara Bank, 94 (2001) DLT 841 has held that the Courts have to take judicial notice of the practice prevalent in Delhi of immovable properties being transacted by way of power of attorney and rights in the said manner, and without actual conveyance in the properties, being created. However, we may notice that normally such transactions are coupled with execution of other documents as agreement to sell, Will etc. also and which are at this stage found to be lacking in the present case. However, we are still unable to hold that a case for rejection of the plaint is made out. The fact remains that the power of attorney is executed with respect to the second floor only. Admittedly, the appellant-defendant is the owner of a larger share/portion of the property than second floor alone. If at all the intent in giving the power of attorney was as mentioned therein, the same would have been executed with respect to the entire share/portion of the appellant-defendant and not with respect to the second floor only. In such eventuality, in ordinary circumstances, the power would not have been given to the respondent No.1-plaintiff to also sell the property and/or to receive consideration thereof. All these matters are to be decided in trial and all that can be said at this stage is that no case for rejection of the plaint is made out. 6. The senior counsel for the appellant has also contended that the claim of the respondents-plaintiffs for partition of the property is in any case barred by the Benami Act. The learned single Judge has already FAO(OS) 42/2010 Page 5 of 5 held in exercise of the discretion vested in him that the respondents- plaintiffs are not claiming declaration of their title as Benamidar and so far as the relief of partition is concerned, if it is found that they have no right in the property, they would not be entitled to any share in the property. No case for interference in the said exercise of discretion also is made out. There is no merit in this appeal. The same is dismissed. CHIEF JUSTICE RAJIV SAHAI ENDLAW, J JANUARY 15, 2010 pk