Naveen Sharma vs Ashok Kumar

RSA-3031-2024 (O&M) 1 RSA-3032-2024 (O&M)

119 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Date of decision : 13th of December, 2024

RSA-3031-2024 (O&M) Naveen Sharma ....Appellant Versus

Ashok Kumar ....Respondents

RSA-3032-2024 (O&M) Naveen Sharma ....Appellant Versus

Ashok Kumar ....Respondents

CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN

Present : Mr. Divanshu Jain, Advocate for the appellant.

PANKAJ JAIN, J. (ORAL)

These two appeal arise out of judgments and decrees passed by

Courts below whereby the appellant has been mandated to hand-over

physical possession of the suit property.

2. For convenience, the parties hereinafter are referred to by their

original position in the suit i.e. the appellant as the defendant and the

respondent as the plaintiff.

3. Plaintiff Ashok Kumar filed present suit through his attorney

Manjit Singh Johal seeking decree of mandatory injunction directing the

defendant to hand-over vacant physical possession of the suit property as

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mentioned in the headnote of the plaint. Plaintiff pleaded that he is allottee

of the suit property by Chandigarh Administration vide allotment letter dated

5th of February, 1993. Lease deed was executed in his favour vide document

dated 4th of July, 2008. Defendant being his nephew was inducted as a

licensee. The licence was terminated vide notice dated 1st of May, 2015

asking the defendant to vacate the demise premises. However, despite

having served with the notice, defendant failed to vacate the demise

premises.

4. Suit was contested by the defendant claiming that his father was

inducted as a tenant in the booth, in question, on the monthly rent of

Rs.200/-. Later on the demise premises was let out to him on the monthly

rent of Rs.300/-. The defendant being tenant cannot be evicted except in

terms of East Punjab Urban Rent Restriction Act, 1974 as applicable to

Chandigarh.

5. On the basis of the pleadings, suit filed by the plaintiff was put

to trial framing the following issues:

"1. Whether plaintiff is entitled to the relief for mandatory injunction on the basis of contentions made by plaintiff in his plaint ? OPP

2. Whether the suit of the plaintiff is liable to be dismissed on the grounds as mentioned by the defendant in his written statement ? OPD

3. Relief."

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6. Returning finding on issue No.1 in favour of the plaintiff, Trial

Court held that the defendant was proved to be a licensee in the premises.

However, declined the mesne profits. Suit for mandatory injunction was

decreed.

7. Both the parties preferred appeals.

8. Lower Appellate Court affirming the finding w.r.t. status of the

defendant as licensee, dismissed the appeal filed by the defendant. Prayer of

the plaintiff w.r.t. grant of mesne profits was allowed and he was held

entitled for mesne profits @ Rs.8,000/- per month w.e.f. 16th of May, 2015

i.e. the date on which the license was terminated till the date of possession.

9. Assailing the impugned judgments and decrees passed by

Courts below, Mr. Jain submits that the suit was filed by plaintiff Ashok

Kumar through his Power of Attorney Manjit Singh Johal. The power of

attorney has been placed on record as Exhibit P-1. He submits that bare

perusal of power of attorney would reveal that in fact the same was executed

as a sale and the same was also admitted by Ashok Kumar while appearing

as PW-1. Ashok Kumar having sold the property was left with no interest or

title in the same and, thus, the present suit for mandatory injunction would

be barred in terms of Section 41(j) of Specific Relief Act, 1963. He further

submits that the Power of Attorney was executed as a camouflage to the sale

deed owing to a bar in the lease deed executed by U.T., Administration in

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favour of plaintiff Ashok Kumar whereby he was barred from transferring

his rights in the property for a period of 15 years.

10. I have heard counsel for the appellant and have carefully gone

through records of the case.

11. It has come on record that still in the records maintained by the

Estate Officer, the property stands in the name of plaintiff Ashok Kumar.

The fate of the lis hinges upon answer to the question 'whether power of

attorney Exhibit P-1 can be treated as sale by plaintiff Ashok Kumar in

favour of Manjit Singh Johal?' The issue is no more res integra and has

been answered by Supreme Court in the case of Suraj Lamp and

Industries Pvt. Ltd. vs. State of Haryana and another, (2012) 1 SCC 656

observing as under:

"15. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank, 2002(1) RCR (Civil) 543, 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.

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16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."

12. The aforesaid being legal situation, this Court does not find that

on the strength of power of attorney, it can be held that the plaintiff has lost

personal interest in the property and can be barred from claiming injunction

invoking Section 41(j) of Specific Relief Act, 1963. So far as finding w.r.t.

appellant being licensee and his liability to pay mesne profits is concerned,

the same are pure findings of fact which are beyond the scope of Second

Appeal.

13. In view of above, finding no merit in the present appeals, the

same are ordered to be dismissed.

14. Pending application(s), if any, shall also stand disposed off.

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15. A copy of this order be kept on the file of other connected case.

December 13, 2024 (Pankaj Jain) Dpr Judge

Whether speaking/reasoned : Yes/No Whether reportable : Yes/No

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