2000 before the High Court of Delhi, which came to be dismissed by the
High Court by relying upon the judgment of Asha M. Jain v. Canara Bank
and Others 1 which was later on overruled by this court in Suraj Lamp and
Industries Private Limited (2) through Director v. State of Haryana and
Another.2 Against the said dismissal, the defendant No.1 had filed Civil
Appeal No. 9012/2011.
6. Vide the order 31.10.2011 aforesaid civil appeal came to be allowed
in part and the matter was remanded back to the High Court for fresh
disposal with an observation that the Agreement to Sell / General Power of
Attorney / Will Transactions are not ‘transfers’ or ‘sales’ and such
transactions cannot be treated as transfers or conveyances as contemplated
under Transfer of Property Act, 1882. Hence, RFA No.358/2000 came to be
restored to the file of High Court which has been heard afresh, and by the
impugned order, it came to be dismissed on 09.04.2012. Aggrieved by the
same, the defendant no.1 is in appeal before us.
SUBMISSIONS
7. Mr. S.Mahendran, Learned Counsel for the defendant No.1 made
the following submissions:
1 (2001) SCC OnLine Del 1157
2 (2012) 1 SCC 656
4
● That there is no title of ownership conferred merely on the basis of
Agreement to Sell, GPA, Affidavit, Receipt, Will etc. without there
being any possession thereof.
● That the original title deeds of suit schedule property are in possession
of the defendant No.1.
● That the Will has not been proved in accordance with law.
● Section 53A of the Transfer of Property Act is not attracted if the
possession of the property is not delivered.
● That Will is not an instrument of sale under Section 54 of Transfer of
Property Act. As per Section 54, immovable property can be sold by a
registered instrument only.
● That the alleged Attesting Witnesses PW-3 and PW-4 could not prove
the execution of the documents filed by the plaintiff such as GPA,
Agreement to Sell, Receipt, Will as required by Section 3 of Transfer
of Property Act, Section 68 of Indian Evidence Act and Section 63 of
Indian Succession Act.
● That the Courts below have failed to appreciate that in the previous
suit which is OS No. 294/1996 the plaintiff himself admitted in his
replication filed on 12.10.1996 that the father, Shri Kundan Lal is
owner of the suit property. On the other hand the present suit is filed
5
by falsely alleging that he had purchased the suit property from the
father on 16.05.1996 which is much prior to the date of filing of the
replication.
● That the vital facts clearly reveal that the alleged documents
pertaining to the suit property had been obtained by the plaintiff on
misrepresentation.
● That ever since 1973, the defendant No.1 has been in continuous,
uninterrupted possession and occupation of the suit property in his
own right and during this period i.e. 1973 to 1997, the father Shri
Kundan Lal neither filed any ejectment proceedings nor served any
notice for his eviction during his lifetime, who died on 10.04.1997.
8. The Respondent No.1 / Plaintiff who was duly served has not
entered appearance and is proceeded ex-parte.
9. Mrs. Rekha Pandey, Learned Counsel for Respondent No.2 /
Defendant No. 2 has made the following submissions:
● That the defendant No. 2 has purchased 50% share of the suit
property from the defendant No.1 / Ramesh Chand.
● That the High Court vide order dated 28.02.2011 in RFA No.
358/2000 as well as this Court vide interim order dated 26.08.2013
in present appeal has protected the right of the Respondent no. 2 as
