2023 (6) TMI 1497

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....ant from the suit premises which is part of H-768, J.J. Colony, Shakarpur, Delhi and for mesne profits on the averment that he is the owner of the said property by virtue of an agreement to sell dated 10.04.2002, power of attorney, a memo of possession and a receipt of payment of sale consideration as well as a "will" of the defendant-appellant bequeathing the said property in his favour; the possession of the suit premises was handed over to the plaintiff-respondent pursuant to the agreement to sell subsequently on the request of the defendant-appellant the plaintiff-respondent allowed the defendant-appellant to occupy the ground floor and one room on the first floor of it for a period of 3 months as a licencee; the defendant-appellant fai....

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....attorney, the will, the agreement to sell coupled with possession memo and the receipt of payment of sale consideration would confer any title upon the plaintiff-respondent so as to entitle him to a decree of eviction and mesne profits. 7. The aforesaid point was not raised by the defendant-appellant through his pleadings in the trial court or the first appellate court and, therefore, the High Court in second appeal held that he cannot be permitted to raise such an issue and that the appeal, as such, does not involve any substantial question of law. 8. The suit as per the pleadings is that of eviction and mesne profits on the averment that the plaintiff-respondent is the owner of the property. He has claimed ownership on the strength of t....

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....t in part performance of the agreement which cannot be disturbed or disputed by the transferer, i.e., the defendant-appellant. 11. At the cost of repetition, the suit is for eviction of the defendant-appellant from the suit premises and for recovery of mesne profits on the ground that after the defendant-appellant has parted with the possession of the property in favour of the plaintiff-respondent in part performance of the agreement, he has no right to disturb his possession. He is simply a licencee and the licence having been terminated, he has no right to remain in possession but to restore possession to the person having rightful possessory title over it. 12. It goes without saying that the power of attorney executed by the defendant-....

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....04 DLT 787] following the earlier decision of the Delhi High Court itself in the case of Asha M. Jain Vs. Canara Bank and Ors. [(2001) 94 DLT 841] holding that the agreement to sell with payment of full consideration and possession along with irrevocable power of attorney and other ancillary documents is a transaction to sell even though there may not be a sale deed, are of no help to the plaintiff-respondent inasmuch as the view taken by the Delhi High Court is not in consonance with the legal position which emanates from the plain reading of Section 54 of the Transfer of Property Act, 1882. In this regard, reference may be had to two other decisions of the Delhi High Court in Imtiaz Ali Vs. Nasim Ahmed [AIR 1987 DELHI 36] and G. Ram Vs. D....