2023 INSC 1016 Civil Appeal No.1598 of 2023 Page 1 of 11

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

respondent with respect to the property in

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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 3 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

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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

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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

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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 7 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

Anr.

1

, 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 8 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

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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

(Wright) Issar and Others

2

(ii). Balram Singh Vs. Kelo Devi

3

(iii). M/S Paul Rubber Industries

Private Limited Vs. Amit Chand Mitra

& Anr.

4

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 10 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

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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