Full Judgment Text
2023 INSC 1016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1598 OF 2023
SHAKEEL AHMED …APPELLANT
VERSUS
SYED AKHLAQ HUSSAIN …RESPONDENT
O R D E R
VIKRAM NATH,J.
1. This appeal assails the correctness of the
judgment and order dated 23.08.2018 passed
by the High Court of Delhi in RFA No.191 of
2013 between Shakeel Ahmed and Syed Akhlaq
Hussain, whereby the appeal was dismissed
and the judgment and decree of the Trial Court
decreeing the suit for possession and mesne
profits has been affirmed.
2. The appellant is defendant in the suit for
possession and mesne profits instituted by the
Signature Not Verified
Digitally signed by
Jatinder Kaur
Date: 2023.11.23
13:49:14 IST
Reason:
respondent with respect to the property in
Civil Appeal No.1598 of 2023 Page 1 of 11
question. The suit was filed on the basis of a
Power of Attorney, an agreement to sell, an
affidavit and a will executed in favour of the
respondent. The appellant, admittedly, was in
possession of the property in question. The suit
was contested on several grounds that the
appellant was the owner of the property having
received the same on the basis of a Hiba (oral
gift) from its owner Laiq Ahmed his own brother.
Secondly, that the suit was not maintainable as
none of the documents on the basis of which the
suit was filed were neither admissible nor
enforceable under law. Both parties led evidence
- oral and documentary. The Trial Court framed
as many as eleven issues, which read as follows:
“1. Whether the plaintiff has locus-standi
to file the suit? OPP
2. Whether it is collusive suit of the
plaintiff and the defendant’s brother, if
so, its consequences? BPD
3. Whether the suit is bad for non-joinder
of necessary party, if so, whom and its
consequences? BPD
4. Whether the suit is barred by provision
of Order II Rule 2 CPC for want of suit for
declaration? OPP
Civil Appeal No.1598 of 2023 Page 2 of 11
5. Whether the plaintiff came to Court
without clean hands by suppressing
material facts, if so, its consequences?
OPD
6. Whether the defendant was licencee in
the suit property and it was terminated
by notice dated 23.01.2008 by plaintiff’s
predecessor in interest? OPP
7. Whether the plaintiff is entitled for
decree of possession of suit property, as
prayed in prayer clause (a), against the
defendant? OPP
8. Whether the plaintiff is entitled for
decree of permanent injunction, as
prayed in prayer clause (b), against the
defendant? OPP
9. Whether the plaintiff is entitled for
decree of recovery of damages of
Rs.2,10,000/- as prayed in prayer clause
(c), against the defendant? OPP
10. Whether the plaintiff is entitled for
decree of damages @ Rs.10,000/- per
month, as prayed in prayer clause (c),
against the defendant, if so, for what
period? OPP
11. Relief.”
3. Findings recorded by the Trial Court were that
all the issues were decided against the appellant
and in favour of the respondent except issue
Civil Appeal No.1598 of 2023 Page 3 of 11
no.8 and decree for possession along with
mesne profits was granted.
4. While in regular appeal filed under section 96 of
the Code of Civil Procedure, 1908, the High
Court confirmed the finding with regard to the
claim of the appellant regarding Hiba in his
favour and held that the appellant had failed to
prove the same. With respect to the other
argument regarding suit being maintained on
the basis of an unregistered document, the High
Court, although in principle agreed but
proceeded to uphold the decree of possession on
the ground that the respondent had filed the
suit as an Attorney for and on behalf of its owner
Laiq Ahmed and that Laiq Ahmed was not
objecting to the respondent seeking possession
of the suit property. On this sole ground, it
confirmed the decree of possession and
dismissed the appeal.
5. The learned counsel for the appellant made the
following submissions:
5.1. The Court below erred in decreeing the suit
for possession and mesne profits on the
Civil Appeal No.1598 of 2023 Page 4 of 11
basis of unregistered documents namely
Agreement to Sell, Power of Attorney,
Affidavit and a Will.
5.2. The Will, although filed, would be of no
relevance in as much as it will come into
force on the death of the testator i.e. Laiq
Ahmed, who was said to be still alive at the
time of the presentation of the suit. The
other documents like Agreement to Sell
and General Power of Attorney would not
confer any ownership right on the
respondent nor could he derive any title
thereunder.
5.3. The affidavit would also not confer any
title. The unregistered agreement to sell by
itself is a document which is not
enforceable in law. However, its only
admissibility would be for collateral
purposes and not for claiming any rights
thereunder of ownership in a Court of law.
6. Further argument advanced on behalf of the
appellant is that the appellant had successfully
proved the Hiba (oral gift) by his brother Laiq
Civil Appeal No.1598 of 2023 Page 5 of 11
Ahmed in his favour by adducing reliable and
cogent evidence. However, the courts below
wrongly discarded the same and decided the
issue against him.
7. Further, he referred to the reasoning given by
the High Court that even though the documents
relied upon by the respondent were not of any
help but still the respondent could have
maintained the suit for possession or mesne
profits as an Attorney and on behalf of Laiq
Ahmed, the owner of the property. This
reasoning, it was submitted, was untenable in
as much as a reading of the plaint would clearly
indicate that the suit was not filed by the
respondent as Attorney for Laiq Ahmed. It was
in the individual capacity of the respondent
claiming his own right, title and interest under
the unregistered documents referred to above.
On such submissions, learned counsel for the
appellant submitted that the impugned
judgment be set aside and the suit be
dismissed.
Civil Appeal No.1598 of 2023 Page 6 of 11
8. On the other hand, learned counsel for the
respondent submitted that all the documents
relied upon by the respondent as basis for the
suit were the customary documents and they
conferred full title on the respondent to be the
owner of the property in question and, therefore,
he can maintain the suit.
9. It was also submitted that there was a
prohibition of registration of documents of
transfer/conveyance with respect to the area
where the property in question is situate and,
therefore, the transfers affected under the
customary documents was sufficient to confer
title on the respondent. It was also submitted
that the judgment in the case of Suraj Lamps &
Industries Pvt. Ltd. Vs. State of Haryana and
1
Anr. , which was of the year 2011, had
prospective application and would not have any
bearing on the title of the respondents which
came to him under the customary documents
executed in the year 2008 much prior to the
1
183 (2011) DLT 1 (SC)
Civil Appeal No.1598 of 2023 Page 7 of 11
judgment in the case of Suraj Lamps &
Industries (supra).
10. Having considered the submissions at the
outset, it is to be emphasized that irrespective
of what was decided in the case of Suraj Lamps
and Industries (supra) the fact remains that no
title could be transferred with respect to
immovable properties on the basis of an
unregistered Agreement to Sell or on the basis
of an unregistered General Power of Attorney.
The Registration Act, 1908 clearly provides that
a document which requires compulsory
registration under the Act, would not confer any
right, much less a legally enforceable right to
approach a Court of Law on its basis. Even if
these documents i.e. the Agreement to Sell and
the Power of Attorney were registered, still it
could not be said that the respondent would
have acquired title over the property in
question. At best, on the basis of the registered
agreement to sell, he could have claimed relief
of specific performance in appropriate
proceedings. In this regard, reference may be
Civil Appeal No.1598 of 2023 Page 8 of 11
made to sections 17 and 49 of the Registration
Act and section 54 of the Transfer of Property
Act, 1882.
11. Law is well settled that no right, title or interest
in immovable property can be conferred without
a registered document. Even the judgment of
this Court in the case of Suraj Lamps &
Industries (supra) lays down the same
proposition. Reference may also be made to the
following judgments of this Court:
(i). Ameer Minhaj Vs. Deirdre Elizabeth
2
(Wright) Issar and Others
3
(ii). Balram Singh Vs. Kelo Devi
(iii). M/S Paul Rubber Industries
Private Limited Vs. Amit Chand Mitra
4
& Anr .
12. The embargo put on registration of documents
would not override the statutory provision so as
to confer title on the basis of unregistered
documents with respect to immovable property.
Once this is the settled position, the respondent
2
(2018) 7 SCC 639
3
In Civil Appeal No. 6733 of 2022
4
In SLP (C) No. 15774 of 2022
Civil Appeal No.1598 of 2023 Page 9 of 11
could not have maintained the suit for
possession and mesne profits against the
appellant, who was admittedly in possession of
the property in question whether as an owner or
a licensee.
13. The argument advanced on behalf of the
respondent that the judgment in Suraj Lamps
& Industries (supra) would be prospective is
also misplaced. The requirement of compulsory
registration and effect on non-registration
emanates from the statutes, in particular the
Registration Act and the Transfer of Property
Act. The ratio in Suraj Lamps & Industries
(supra) only approves the provisions in the two
enactments. Earlier judgments of this Court
have taken the same view.
14. In case the respondent wanted to evict the
appellant treating him to be a licensee, he could
have maintained a suit on behalf of the true
owner or the landlord under specific
instructions of Power of Attorney as landlord
claiming to have been receiving rent from the
Civil Appeal No.1598 of 2023 Page 10 of 11
appellant or as Attorney of the true owner to
institute the suit on his behalf for eviction and
possession. That being not the contents of the
plaint, we are unable to agree with the
reasoning given by the High Court in the
impugned order.
15. For all the reasons recorded above, the
impugned judgment deserves to be set aside
and the suit deserves to be dismissed.
Accordingly, the appeal is allowed. The
impugned judgment is set aside and the suit is
dismissed.
16. There shall be no order as to costs.
17. Pending application(s), if any, stand disposed of.
………………………………………….J.
(Vikram Nath)
………………………………………….J.
(Rajesh Bindal)
New Delhi,
November 01, 2023
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