J.M Malik, Chairperson:— Punjab & Sind Bank has preferred this appeal in respect of the order passed by the learned Tribunal on 31.12.2008 The main contest in this appeal is between alleged prior purchasers and the subsequent mortgagee of the property in dispute. By the impugned order, the learned trial Court came to the conclusion that “thorough examination of various documents filed by Bhim Sain & Sons (HUF) and Sajan Das & Sons (HUF), respondent Nos. 7 and 8 herein respectively, go to show that they are bona fide purchasers for value of premises 5/69, Guru Mansion, 3rd Floor, Padam Singh Road, Karol Bagh, New Delhi prior to the creation of alleged mortgage, and not through the defaulters/CDs in the O.A” Accordingly, the learned trial. Court dismissed the first appeal filed by the Bank. Hence, this appeal.

2. The case of the appellant Bank is this. Respondents 1 to 6 herein availed of certain loan facilities from the Bank and executed various security documents on 9/10.8.1994. They also executed Form 84A and deposited title deeds of their properties with the appellant Bank in order to equitably mortgage the same. The said respondents did not adhere to the repayment scheme. The Bank filed O.A before the learned DRT against these respondents on 13.3.1998 The learned DRT, vide its order dated 16.4.1998, appointed Mr. Ataul Haque, Advocate, as Local Commissioner to visit the premises of respondent No. 1 and prepare an inventory of the: various stocks, assets and equipments lying at 5/6, Guru Mansion, “Top Floor,” Padam Singh Road, Karol Bagh, New Delhi. The O.A filed by the appellant was decreed on 17.5.1999 against respondents 1 to 6, along with pendente lite and future interest.

3. In the recovery proceedings, the Recovery Officer, vide attachment order dated 13.12.2001 in relation to both the immovable properties, directed the sale of the same by public auction on 15.2.2002 The Recovery Officer also allowed application for breaking open the lock and taking the possession of the abovesaid properties. In the meantime, respondents 7 and 8 filed objections. Both, the Recovery Officer and the Presiding Officer DRT, came to the conclusion that the respondents 7 and 8 are prior purchasers of the property in dispute.

4. I have heard the Counsel for the parties. The learned Counsel for the appellant Bank vehemently argued that along with the mortgage deed original registered sale deed with respect to the property in dispute was deposited with the Bank. A copy of the registered sale deed has been placed on the record. The same is dated 11.1.1994 According to the said sale deed, the said property was sold by Mr. Parveen Kumar Gogna in favour of Mr. Raman Mehta, borrower/respondent No. 2, In the sale deed it was clearly mentioned;

“WHEREAS the built-up property's portion bearing No. 5/69, Mpl. No. 10581, Third Floor, area measuring 254.16 Sq. Yds. (2000 Sq. ft. approx.) situated at W.E.A Karol Bagh, New Delhi, was purchased by Shri Charan Dass Gogna from the DELHI IMPROVEMENT TRUST, DELHI. WHEREAS Mr. Charan Dass Gogna had executed and get registered aforesaid property vide Deed of Will registered as document No. 2065, in Addl. Boo No. 3, Volume No. 45, registered on 2.5.1988, in the office of SUB-REGISTRAR, SUB-DISTRICT No. III, NEW DELHI, in favour of his son Parveen Kumar Gogna s/o of late Shri Charan Dass Gogna. WHEREAS Mr. Charan Dass Gogna expired and after his death Mr. Parveen Kumar Gogna (i. e., the Vendor) became the owner of the above mentioned property on the basis of the Will dated 2.5.1988”

5. The learned Counsel for the appellant Bank further argued that the case of the respondents 7 and 8 dwells on a General Power of Attorney, which though prior to the registered sale deed has got no value in the eyes of law. He vehemently argued that the registered sale deed will get preponderance over the General Power of Attorney. Under the circumstances, he argued that the Court is bound to ignore the General Power of Attorney and place reliance on the registered sale deed.

6. The learned Counsel for the respondent 7 and 8 invited my attention towards the order dated 16.4.1996 passed by the learned trial Court whereby Mr. Ataul Haque, Advocate, was appointed as Local Commissioner. The Local Commissioner was directed to visit the premises 5/6, Guru Mansion, “Top Floor,” Padam Singh Road, Karol Bagh, New Delhi -110005. She pointed out that the mentioning of the words ‘third floor’ is conspicuously missing. She submitted that even in the report the Local Commissioner mentioned about ‘top floor’. The Local Commissioner visited the spot in the presence of two Bank officials, Mr. Vishal Khanna, s/o Mr. J.N Khanna (defendant No. 5) and one local guard. The Local Commissioner did not mention in his report as to who was in possession of the top floor.

7. The learned Counsel for the appellant Bank admitted that the Bank had already taken possession of part of the third floor of the said premises. During the course of the arguments it transpired that as a matter of fact the third floor consists of seven units. Only one or two units were in possession of respondents 7 and 8. It is surprising to note that the learned Local Commissioner did not explain all these facts in the report submitted by him. During the course of the arguments, the learned Counsel for the respondents 7 and 8 argued that as a matter of fact the property consists of five floors. She desired to produce photographs which clearly go to show that property as in the year 2000 consisted of five floors. It is doubtful whether this property consists of five floors or three floors. What is meant by ‘top floor’ is not clear. The learned Presiding Officer, DRT should not have mentioned it as ‘top floor’. He should have mentioned it as third floor as per the description mentioned in the mortgage deed.

8. Moreover, it stands established that the properties bearing Unit Nos. 305 and 306 of premises 5/69, Padam Singh Road, WEA, Karol Bagh, New Delhi were purchased by respondents 7 and 8 in the year 1990 from Mr. Charan Dass Gogna. The record reveals that the entire consideration was paid through cheques. The record also shows that possession of the said premises was also handed over to respondents 7 and 8.

9. The learned Counsel for the respondents 7 and 8 vehemently argued that it was true that in normal times the registered sale deed would always get preponderance over the General Power of Attorney, but in the year 1990 registration of sale deeds was not open. She has cited an authority reported in J.C Mehra… v. Kusum Gupta…., 117 (2005) DLT 506, wherein the Hon'ble High Court was pleased to hold:

“5. Heard Counsel for the parties. Perused documents on record. It cannot be in dispute that the property was sold to the respondent in 1993 by way of power of attorney. The Government recognized the power of attorney transactions as a sale in 1995 and introduced freehold conversion scheme to enable the power of attorney purchaser to have a direct conveyance in their favour. Such conveyance operates to convey two things— (a) reversionary rights which were with the Government and (b) the vestige of rights, if any, which may have been in the previous owner.

Paragraphs 6 to 15 of the said judgment are also relevant.

10. The above cited authority is inapplicable to the facts of this case. The said authority applied to lease hold rights wherein the lesser was Government. Secondly, although in this case the sale deed was registered on 11.1.1994, i.e, prior to 1995, yet there is no evidence on record that the sale through the registered power of attorney was barred or the registration of sale deed was open.

11. The facts of this case are peculiar and different. The entire sale consider ration was paid through the cheques. The possession of the premises in dispute was handed over to the respondent Nos. 7 and 8 immediately. They started having right, title or interest in the premises in dispute as per section 53a of the t.p act in the year 1990. It is clear that Mr. Parveen Kumar Gogna executed the sale deed referred to above by virtue of a Will executed by his father. His father had already transferred the ownership. His son should not have sold the property as per Section 48 of the Transfer of Property Act. This sale deed is subject to prior Power of Attorney where the entire sale consideration was received pertaining to the year 1990. It appears that the Bank officials did not make proper inquiry, before the loan in question was sanctioned. Had they ever visited unit Nos. 305 and 306, they would have immediately found out that this property was sold in favour of respondents 7 and 8 who were in possession of these premises. It is clear that the Bank officials were negligent and did not perform their duties properly. The inspection report at the time of mortgage of property did not see the light of the day. Mr. Charan Dass Gogna transferred the ownership. He had no right, title or interest in the property in dispute thereafter. Consequently, his son could not have acquired a better title than Mr. Charan Dass Gogna. It is apparent that Mr. Parveen Kumar Gogna played a fraud with respondents 1 to 6. The respondents 1 to 6 will not be precluded from recovering money from Mr. Parveen Kumar Gogna. There is no dispute that the respondents 7 and 8 are in possession of the premises in dispute since the year 1990. There is no evidence on record which may to show that they were put in possession of the premises in dispute by respondents 1 to 6. They had paid sale consideration through cheques to Mr. Charan Dass Gogna. Respondents 7 and 8 got the mutation done in the record of MCD in their favour. They also paid property tax. The receipt dated 28.2.2001 showing the payment of house tax issued by MCD is on the record. Both the Courts below have held that respondents 7 and were in possession of the premises in dispute in their own capacity, and not through the defaulters.

12. Consequently, I find that the appeal preferred by the Bank is lame of strength. The same is, therefore, dismissed. There shall be no order as to costs.

13. Copies of this order be furnished to the parties as per law and another copy be sent to the learned DRT.

Appeal dismissed.