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Arvindra Kumar Singh v. Hardayal Kaur
Structured Summary of the Judgment
Factual and Procedural Background
This opinion concerns IA No. 7245/2004, an application filed by defendant No. 1 under Order 7 Rule 11 CPC seeking rejection of the plaint. The defendant advanced multiple grounds for rejection (set out in the plaint as (a) to (h)), chief among them that the plaintiff's claim rested on an unregistered and deficiently stamped agreement to sell and therefore was unenforceable under the amended provisions of the Registration Act and Section 53A of the Transfer of Property Act.
The plaintiff's pleaded case, as set out in the plaint, is that the plaintiff purchased the suit property (B-301, Okhla Industrial Area, Phase I, New Delhi) from defendant No. 1 after paying the entire sale consideration; that defendant No.1 had executed an agreement to sell dated 04.04.2003, handed over possession (except the basement which is pleaded as constructive possession), and that the plaintiff has been in possession since 04.04.2003. It is also averred that later the property was mutated in the names of other defendants and attempts were made to dispossess the plaintiff.
The reliefs sought in the suit include two permanent injunctions restraining defendants from dispossessing or threatening the plaintiff (Prayers (i) and (ii)) and a mandatory injunction directing cancellation of mutation (Prayer (iii)).
The defendant's IA under Order 7 Rule 11 sought outright rejection of the plaint. After hearing, the court dismissed IA No. 7245/2004 and ordered no costs.
Legal Issues Presented
- Whether the plaint should be rejected under Order 7 Rule 11 CPC on the basis that the agreement to sell relied upon by the plaintiff is unregistered and deficiently stamped—thus rendering the plaintiff unable to invoke Section 53A of the Transfer of Property Act in view of Section 17(1A) of the Registration Act (as amended).
- Whether, notwithstanding the alleged infirmity of the agreement, the plaintiff's pleaded possession (actual possession except the basement) prevents rejection of the plaint at the Order 7 Rule 11 stage and requires trial on the injunction claims.
Arguments of the Parties
Defendant No. 1's Arguments
- (a) The plaintiff has not come with clean hands and has misled the court about being purchaser in possession.
- (b) The plaintiff bases title on an unregistered and deficiently stamped agreement to sell; having not sought specific performance, the plaintiff is not entitled to relief (reference to Order 2 Rule 2 CPC pleaded).
- (c) The agreement to sell dated 04.04.2003 was executed on Rs.10 stamp paper and was not registered; after the 2001 amendment to the Registration Act (Section 17(1A)) such documents cannot be relied upon for the purpose of Section 53A of the Transfer of Property Act.
- (d) The plaintiff relies on a general Power of Attorney (dated 01.04.2003) which was cancelled and at best conferred only "distance possession" not actual possession.
- (e) The original lease deed prohibits sale without prior sanction of the President of India; documents executed by the plaintiff are alleged to be fraudulent and contrary to public policy (Section 23 Contract Act).
- (f) Transactions transferring property without substitution on government records are impermissible and liable to be struck down.
- (g) An alleged bequeath not favouring a blood relative is said not to be binding and was effected without discharging certain liabilities (unearned increase to extent of 50%).
- (h) The suit is without cause of action because the documents were executory and not executed.
- During arguments the defendant's counsel confined the rejection plea primarily to the submission that the agreement to sell was unregistered and deficiently stamped, and therefore could not support a claim under Section 53A.
Plaintiff's Pleadings / Contentions (as reflected in the plaint)
- The plaintiff purchased the suit property from defendant No.1 and paid the entire sale consideration.
- Defendant No.1 represented that her late husband had bequeathed the property to her by a Will dated 16.10.2001.
- Defendant No.1 executed a registered general power of attorney dated 01.04.2003 and an agreement to sell dated 04.04.2003 and simultaneously handed over possession (ground, first and second floors) to the plaintiff. Basement possession is pleaded as constructive possession and the tenant thereunder paid rent to the plaintiff on instruction of defendant No.1.
- Subsequently, the property was allegedly mutated in the names of other defendants and attempts were made to dispossess the plaintiff.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| See (2004) 1 SCC 769 Rame Gowda v. M. Varadappa Naidu | That possession which is settled and not merely transitory (even if taken by a trespasser) cannot be defeated by physical force; possession must be regained by procedure established by law. | The court relied on this authority to hold that, for the purposes of deciding the O. VII R.11 application, the plaintiff must be treated as being in settled possession and therefore defendants cannot resort to self-help; instead they must use legal procedure to regain possession. |
Court's Reasoning and Analysis
The court applied the test under Order VII Rule 11 CPC: it had to accept the plaint's averments as true for the purpose of the application and determine whether on those averments the suit disclosed any cause of action or was barred in law.
The court noted the statutory provision Section 17(1A) of the Registration Act (quoted in the opinion) which provides that documents containing contracts to transfer immovable property for the purpose of Section 53A must be registered if executed on or after the commencement of the 2001 amendment, and unregistered documents would have no effect for the purposes of Section 53A. On this basis the court acknowledged the correctness of the defendant's legal submission that the unregistered agreement to sell could not be relied upon to invoke Section 53A.
However, the court observed that the plaint pleads actual possession of the suit property (except the basement) from 04.04.2003 with consent of defendants No.1–6, and alleges threats and attempts to dispossess occurring later (threats in October 2003 and a physical attempt in June 2004). Treating these averments as true for the limited purpose of the application, the court held that the plaintiff must be regarded as being in settled possession.
Relying on the cited precedent (Rame Gowda), the court reasoned that even a trespasser who has gone into settled possession cannot be dispossessed by force; possession must be recovered by legally established procedures. Consequently, despite the legal infirmity of the agreement relied upon, the defendants were not entitled to have the plaint rejected at the preliminary stage on the basis of self-help or force.
The court therefore concluded that the plaint could not be rejected at the Order VII Rule 11 stage: the injunction claims (Prayers (i) and (ii)) required a trial. The court further observed that Prayer (iii), which is grounded on the agreement to sell, prima facie may not have substance, but that was a matter for consideration when framing issues at trial rather than for summary rejection at this stage.
Holding and Implications
IA No. 7245/2004 is dismissed.
Implications and direct effects:
- The plaint is not rejected under Order 7 Rule 11 CPC; the injunction claims (Prayers (i) and (ii)) proceed to trial because the plaintiff's pleaded possession must be treated as true at this stage.
- Prayer (iii), being based on the unregistered agreement to sell, prima facie appears weak but that issue is to be addressed during framing of issues and trial rather than by summary rejection at this preliminary stage.
- Defendants seeking to regain possession must follow the procedure established by law and cannot resort to physical self-help.
- No costs were awarded.
The court did not purport to lay down any new broader legal precedent; it applied existing statutory provisions and authority to the factual averments pleaded in the plaint to determine that summary rejection was not appropriate.
Pradeep Nandrajog, J.:— IA No. 7245/2004 is the application filed by defendant No. 1 under Order 7 Rule 11 CPC praying for rejection of the plaint. Grounds on which rejection is prayed for are:
“(a) That the plaintiff has not come to the Hon'ble Court with clean intention and has tried to mislead the court into believing that the plaintiff is the purchaser in possession for that property comprised in B-301, Okhla Industrial Area, Phase-1, New Delhi.
(b) That the plaintiff claims to be the owner by virtue of an unregistered and deficiently stamped document of agreement to claim his title to the property which is not open in law to the plaintiff as the plaintiff has not claimed specific performance of the contract thereby due to have abandoned his right to claim the relief by virtue of provisions of Order 2 Rule 2 CPC. The suit, therefore, is liable to the rejected.
(c) That the plaintiff relies on a basic document dated 04.04.2003 which was only an agreement to sale “inscribed” on a stamp paper of Rs. 10/- and not registered, thereby making the said document inadmissible on judicial record by virtue of the amended provisions of Section 17 of the Registration Act and correspondingly inviting the provisions of Section 53A of the Transfer of Properties Act (as amended). The said two provisions prohibit any transaction involving transfer of interest without there being a registered document inscribed on a requisite stamp paper as per ad volurm rates applicable and section 53A of the Transfer of Property Act enacts a bar against a party seeking a permanency or otherwise of title on the basis of such a document even, assuming for the sake of arguments, the plaintiffs was inducted into portion of the property. The rigor of the said two provisions is writ large and apparent on record due to which the plaint is liable to be rejected straight away.
(d) That the plaintiff relies upon a general Power of Attorney which has since been cancelled and according to which at best the plaintiff, as on 1st April, 2003 was entitled to have “distance possession” of the suit property as distinct from actual possession and distance possession only means possession without being in physical occupation of the property. The plaintiff cannot convert the said possession into actual real possession to seek any prohibitory or mandatory reliefs not open to him in law.
(e) That the plaintiff has also filed a copy of the original lease deed which prohibits sale by the original allottee without prior sanction of the president of India and therefore, the documents got executed by the plaintiff fraudulently from the first defendant are liable to be cancelled and rejected as opposed to public policy as per Section 23 of the Contract Act.
(f) That any transaction of agreeing to transfer property without being substituted on the Government record as owners is also not permitted and, therefore, is liable to be struck down and cancelled.
(g) That the document of alleged bequeath being not in favour of a blood relative is also not binding and the alleged transaction was brought about without discharging liability of unearned increase to the extent to 50% of the said increase.
(h) That the suit is without cause of action as the documents at best were executory in nature and not executed.”
2. During arguments counsel for the application predicated rejection of the plaint only on the ground that agreement to sell relied upon by the plaintiff being unregistered and deficiently stamped, no claim could be based on said agreement.
3. Prayers made in the suit are as under:—
“(i) Pass a Decree of Permanent Injunction in favour of the Plaintiff and against the Defendant No. 1 to 8 thereby restraining Defendant No. 1 to 8, their agents, representatives, servants, attorneys, assignees or any other person acting for and on behalf of Defendant No. 1 to 8 from dispossessing the Plaintiff from the Property bearing No. B-301, Okhla Industrial Area, Phase I, New Delhi.
(ii) Pass a Decree of Permanent Injunction in favour of the Plaintiff and against the Defendant No. 1 to 8 thereby restraining Defendant No. 1 to 8, their agents, representatives, servants, attorneys, assignees or any other person acting for and on behalf of Defendant No. 1 to 8 from threatening the Plaintiff and his men or visiting the aforesaid property.
(iii) Pass a Decree of Mandatory Injunction in favour of the Plaintiff and against the Defendant No. 9 thereby directing the Defendant No. 9 to cancel the mutation of the property bearing No. B-301, Okhla Industrial Area Phase I, New Delhi being done in favour of Defendant Nos. 3 and 4.”
4. For purposes of Order VII Rule 11, in context of application filed by the defendant, this court has to treat averments made in the plaint as true and correct and thereafter to determine whether the suit does not disclose any cause of action or is otherwise barred in law.
5. It is stated in the plaint that plaintiff purchased the suit property from defendant No. 1 after paying entire sale consideration. It is stated that defendant No. 1 represented that her late husband Sh. Surjit Singh, the perpetual lessee under DDA had executed a Will dated 16.10.2001 bequeathing the suit property to her. Defendants No. 2 to 5 are the children of defendant No. 1. It is stated that after receiving the full sale consideration, defendant No. 1 issued a receipt dated 4.4.2008 Prior thereto, she executed a registered general power of attorney dated 1.4.2003 It is stated that defendant No. 1 executed an agreement to sell dated 4.4.2003 and simultaneously handed over possession of the property. It is stated that defendant No. 1 had inducted a tenant in a part of the property and on instructions of defendant No. 1 to attorn to the plaintiff, tenant started paying rent to the plaintiff in respect of the basement of the property, being under tenancy. It is stated that at the time of execution of the agreement to sell and receipt of full sale consideration, possession of ground, first and second floor was handed over to the plaintiff and plaintiff continues to be in possession thereof.
6. It is stated in the plaint that thereafter, defendants contrived to have the property mutated in names of defendants No. 3 and 4. It is averred that defendant No. 7 claims to have purchased the property from defendants No. 1 to 6. He alongwith defendant No. 8 are stated to have attempted to dis-possess the plaintiff from the suit property.
7. Sections 17(1A) of the Registration Act, 1908 reads as under:—
“(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.”
8. Learned counsel for the defendant would, therefore, be correct in law in so far it is urged that plaintiff cannot sue under the agreement to sell in question, for the simple reason that the said document having been executed after amendment to the Registration Act, 1908 by Act No. 48/2001, required registration and not being registered, plaintiff cannot rely upon Section 53-A of the Transfer of Property Act, 1882.
9. However, it cannot be lost sight of that the plaintiff pleads actual possession of the suit property save and except the basement constructive possession whereof is pleaded, by and under express consent of defendants No. 1 to 6. Possession under consent aforesaid is claimed with effect from 4.4.2003 Threat to possession is stated to have arisen in October, 2003. Physical attempt to dis-possess has been stated to be in June, 2004.
10. For the purposes of deciding the application at hand, this court would have to treat the plaintiff being in settled possession. Whatever be the legal consequences of the agreement in question being not registered, defendants have to take recourse to procedure established by law to regain possession. Position of the plaintiff would be better than that of a tresspasser who comes into settled possession over a sufficiently long period. Even such a tresspasser, i.e a tresspasser who goes into settled possession and possession being not transitory, cannot be unsettled/dispossessed by physical force. Possession of such a tresspasser has to be regained by procedure established by law (See (2004) 1 SCC 769 Rame Gowda v. M. Varadappa Naidu).
11. Plaint cannot be rejected at this stage. Prayers 1 and 2 as noted above, in view of the averments made in the plaint require a trial. Prima-facie, plaintiff may have no case as far as prayer No. 3 is concerned for the reason that said prayer would be based on the agreement to sell relied upon. But that would be a matter to be considered while framing issues.
12. IA No. 7245/2004 is dismissed.
13. No costs.
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