Allahabad High Court
Rajesh Chhabra vs Radhey Lal Jeswani And Others on 16 September, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Judgment reserved on: 25.08.2025
Judgment delivered on:16.09.2025
Neutral Citation No. - 2025:AHC:164349
Court No. - 35
Case :- FIRST APPEAL No. 60 of 2011
Appellant :- Rajesh Chhabra
Respondent :- Radhey Lal Jeswani And Others
Counsel for Appellant :- K.K. Tiwari, Rishikesh Tripathi
Counsel for Respondent :- Arvind Srivastava, Ashish Kumar Singh, Hari Manish Bahadur Sinha, Jitendra Kumar Srivastava, Pushkar Srivastava, Ram Dayal Tiwari, Udayan Nandan
AND
Case :- FIRST APPEAL No. 70 of 2011
Appellant :- Rajesh Chhabra
Respondent :- Radhey Lal Jeswani And Others
Counsel for Appellant :- K.K. Tiwari
Counsel for Respondent :- Arvind Srivastava
Hon'ble Sandeep Jain,J.
1. First Appeal no. 60 of 2011 has been filed by the plaintiff appellant against judgment and decree dated 9.12.2010 passed by the court of Sri. Rajat Singh Jain, Additional District Judge/Special Judge(EC Act), Jhansi in O.S. no. 129 of 2005 Rajesh Chhabra versus Radhey Lal Jeswani and others, whereby the plaintiffs suit for the relief of declaration, for declaring void agreement to sell dated 20.4.2005, executed by defendant no.2 &3, in favour of defendant no.1, regarding bungalow no. 329, Jhokan Bagh, Jhansi and suit for the relief of permanent injunction, for restraining the defendants from demolishing, alienating, transferring, altering the above bungalow, has been rejected.
2. First appeal No. 70 of 2011 has been filed by the plaintiff appellant against judgment and decree dated 9.12.2010 passed by the court of Sri. Rajat Singh Jain, Additional District Judge/Special Judge(EC Act), Jhansi in O.S. no. 365 of 2006 Rajesh Chhabra versus Radhey Lal Jeswani and others, whereby the plaintiffs suit for the relief of declaration, for declaring void registered sale deeds dated 15.05.2006 registered on 20.07.2006, executed by Smt.Savita Chhabra and Rishav Chhabra, in favour of defendant no.1,2,3,4&5, regarding bungalow no. 329, new no. 1358, Jhokan Bagh, Jhansi and suit for the relief of permanent injunction, for restraining the defendants from interfering, demolishing, alienating, transferring, altering the above bungalow, has been rejected.
3. Both the original suit no. 129 of 2005 and 365 of 2006 were consolidated by the trial court, and decided by the common judgment and decree dated 9.12.2010, aggrieved against which, the plaintiff appellant has filed the above two appeals, which have been tagged and heard together and are being disposed by this common judgment.
Facts of O.S.no.129 of 2005
4. The suit was filed by the plaintiff appellant with the averments that disputed house no. 329(old no.), new no. 967, present no.1358, Jhokan Bagh,Civil Lines, Jhansi was the property of Late Sardari Lal Chhabra, which was purchased by him in the name of his minor son Vinay Chhabra, in the year 1965. Vinay Chhabra died on 24.11.1987, leaving behind defendant no.2 his wife Smt. Savita Chhabra and defendant no.3 his son Rishav Chhabra, as his legal heirs.
5. It was averred by the plaintiff that when the disputed house was purchased by late Sardari Lal, then at that time mother of defendant no.4 and 5 Smt. H. William was the tenant in the disputed house, who has died, and after her death defendant no. 4 and 5 have become tenants in the disputed house.
6. It was averred by the plaintiff that since the properties left behind by late Sardari Lal belonged to the joint Hindu family of his sons, as such, in the year 1980, a partition took place between the heirs of late Sardari Lal, in which, the disputed house devolved upon the father of the plaintiff Mangal Sen Chhabra. Since, some heirs of deceased Sardari Lal Chhabra, refused to accept the family partition, as such, the plaintiff 's father Mangal Sen Chhabra filed suit no. 28 of 1996 Mangal Sen Chhabra versus Ramjeet Chhabra and others, for the relief of declaration, before the court of Civil Judge(Senior Division), Jhansi in which the present defendants no.2&3, were arrayed as defendant no.6&7. Suit No. 28 of 1996 was decreed on 31.3.1999 in favour of paintiff's father Mangal Sen Chhabra and as such, he was declared the owner in possession of disputed house no. 329 and it was also made clear, that the other defendants had no right, title or interest in the disputed house.
7. It was averred by the plaintiff, that after suit no. 28 of 1996 was decreed, the defendants no.2&3(of this suit) filed miscellaneous application no.125 of 1999 under Order 9 Rule 13 CPC, which was also dismissed on merits on 27.7 2001, which was also challenged by the defendant no.2&3, by filing Miscellaneous Appeal No. 66 of 2001 before the court of Special Judge/SCC, Jhansi, which was also dismissed on 30.7.2004, and such, the decree passed in O.S. no. 28 of 1996 dated 31.3.1999 remained effective and the defendants no.2&3 were bound by that decree.
8. It was further averred by the plaintiff that, subsequently regarding disputed house no. 329, a family partition took place between his father Mangal Sen Chhabra and him in November, 1995, in which, house no. 329 came to his share, in which defendant no.4&5 were residing as tenants, who thereafter, became tenants of the plaintiff. The plaintiff was residing since, the year 1995 in house no. 292, Issai Tola,Khatibaba,Jhansi. It was further averred that in the decree passed in O.S. no. 539 of 2000 Mangal Sen Chhabra versus Rajesh Chhabra, by the court of Civil Judge(Jr Division) Jhansi, it was declared that the plaintiff was the owner of the disputed house no. 329, which has got no concern with plaintiff's father.
9. It was further averred by the plaintiff that since the disputed house was required by him for his residential needs, as such, he had filed P.A.case no.8 of 2002 Rajesh Chhabra versus Samson William under section 21 of the UP Act no. 13 of 1972, in the court of Prescribed Authority/Civil Judge(Jr Division), Jhansi against tenant/defendant no.4&5, which was pending for disposal.
10. It was further averred by the plaintiff that, his father Mangal Sen Chhabra, in the lifetime of defendant no.2&3's predecessor Vinay Chhabra, had filed P.A.Case No. 65 of 1986 under section 21 of UP Act. no. 13 of 1972 ,against defendant no.4&5, in which Late Vinay Chhabra had filed his affidavit dated 16.12.1986 in which, he had accepted the family partition and had further stated that the disputed house no. 329 belonged to plaintiff's father Mangal Sen Chhabra and Vinay Chhabra, had no concern with the disputed house.
11. It was further averred by the plaintiff that the above facts proved that, he was the undisputed owner and landlord of house no. 329 and, as such, defendant no.2 &3, had no concern with the disputed bungalow. It was also averred that defendant no.1 very well knew that plaintiff was the owner of the disputed house and the defendant no.2&3 had no concern with the above house.
12. The plaintiff became aware that an agreement to sell dated 20.4.2005 was executed by defendant no.2&3 in favour of defendant no.1, in which he was not a party, a consideration of which was shown to be ₹ 22 lakhs ,which was a void document, because the defendant no. 2 and 3 had no right title and interest in the disputed house after the decree was passed in O.S. no. 28 of 1996. It was further alleged that the defendant no.4&5 were also indirectly involved in the above agreement to sell. It was further alleged that subsequently, many sale deeds were executed on 20.7.2006 in favour of defendant no. 6,7 and 8, which were null and void. With these submissions, the plaintiff sought the following reliefs from the court:-
(i) by decree of declaration granted in favour of the plaintiff against the defendants, it be declared that the agreement to sell dated 20.4.2005 executed by defendant no.2&3 in favour of defendant no.1, sale deed dated 20.7.2006 executed by defendant no.2&3 in favour of defendant no.1,6,7&8 are null and void, which do not affect the rights of the plaintiff in disputed house no. 329.
(ii) by decree of permanent injunction granted in favour of the plaintiff against the defendants, the defendants be restrained from demolishing the disputed bungalow no. 329, plotting it, alienating it, transferring it or interfering in the peaceful possession of the plaintiff.
Written Statement of defendant no.1&2
13. The defendant no.1 Radhey Lal Jeswani and defendant no.2 Smt.Savita Chhabra in their joint written statement accepted that Vinay Chhabra died on 24.11.1987, leaving behind his wife Savita Chhabra and son/defendant no.3 Rishav Chhabra. It was specifically averred that the plaintiff was never the owner and landlord of the disputed house no. 329 as such, the plaintiff had no cause of action to file the instant suit. It was further averred that previously for getting the disputed house vacated, the plaintiff had filed SCC suit no. 118 of 1996 Rajesh Chhabra and Mangal Sen Chhabra versus Samson William and others in the Court of Judge Small Causes, Jhansi, which was contested by defendant no.1&2, the suit was dismissed on 16.8.2003, in which the plaintiff was not accepted as the landlord of the disputed house. It was also held by the court that there was no relationship of landlord and tenant between Rajesh Chhabra/ Mangal Sen Chhabra and Samson William/Morris William.
14. It was further averred that the disputed house was purchased by Vinay Chhabra through his father, by a registered sale deed in the year 1965 and had also, obtained its possession. At that time, Vinay Chhabra was minor and after his death, his wife and son, became the owners in possession of the disputed house. It was further submitted that in case number 118 of 1996 Vinay Chhabra's wife and minor son had submitted their written statement, in which, they had alleged that Rajesh Chhabra and Mangal Sen Chhabra had no right to institute suit number 118 of 1996 because, they were neither the owner nor landlords.
15. It was further submitted that the disputed house was purchased by late Sardari Lal for the benefit of his minor son Vinay Chhabra, by registered sale deed executed in the year 1965. It was further alleged that recently Rishav Chhabra had attained majority. Smt. H. William was the tenant of Vinay Chhabra, and after her death, defendant no.4&5 became tenants in the disputed house, who had handed over the possession of the tenanted accommodation to the defendant no.2&3, prior to the filing of the suit, as such, defendant no.2&3 were the owners in possession of the disputed house.
16. It was specifically denied that the disputed property, was the property of the joint Hindu family of Sardari Lal. It was also denied that a family partition took place in the year 1980 between the legal heirs of late Sardari Lal, in which the property devolved on Mangal Sen Chhabra. It was further alleged that in suit no. 28 of 1996, title of the disputed property could not have been adjudicated, as such, the decree passed in that suit was null and void, which was not binding on defendant no.2&3, the decree was also not registered, as such,it had no legal effect. It was further alleged that the decree in suit no. 28 of 1996 was passed against minor defendant no.3, which was not for his benefit, as such, the defendant no.2&3, were not bound by the decree dated 31.3.1999.
17. It was further averred by them that the High Court in its order dated 31.7.1995 had not accepted plaintiff 's father Mangal Sen Chhabra, as the owner of the disputed house and due to this finding, Mangal Sen Chhabra's release application under section 21 of the UP Act no. 13 of 1972, was rejected. The High Court also did not accept in its above order, the alleged consent of the brothers. It was also alleged that the defendants were not bound by the decree passed in O.S. No. 539 of 2000 Mangal Sen Chhabra versus Rajesh Chhabra, by the court of Civil Judge(Jr Division), Jhansi because it was a collusive decree. Further, Mangal Sen Chhabra was not the owner of the disputed house as such, no question arises of Rajesh Chhabra being the owner of the disputed house . The alleged partition that took place in the year 1995, between Rajesh Chhabra and Mangal Sen Chhabra, was illegal and fraudulent, which was void. It was further averred that P.A. case no.8 of 2002 Rajesh Chhabra versus Samson William and others, under section 21 of the UP Act no. 13 of 1972, was pending. In P.A. case no. 65 of 1986, no affidavit was sworn by late Vinay Chhabra in favour of Mangal Sen Chhabra on 16.12.1986, the affidavit submitted by Mangal Sen Chhabra was fraudulent which was evident from the order dated 31.7.1995 passed by the High Court. The defendants accepted that agreement to sell dated 20.4.2005 was executed by defendant no.2&3 in favour of defendant no.1, for a consideration of ₹ 2 Lacs, which was a valid document. It was denied that any sale deed regarding the disputed house was executed by them on 20.4.2005. It was further alleged that the plaintiff had no cause of action to file the present suit. The suit was barred by section 34, 38 and 41(h) of the Specific Relief Act, the suit was undervalued and the court fees paid was insufficient, the plaintiff was bound by the decree dated 16.8.2003 passed by the court of JSCC,Jhansi in case no. 118 of 1996 Rajesh Chhabra and Mangal Sen Chhabra versus Samson William and others. With these submissions it was prayed that the plaintiffs suit be dismissed.
Written Statement of defendants no.6 to 9
18. It was accepted by the defendants that the disputed house was purchased in the name of minor Vinay Chhabra, by his father, late Sardari Lal Chhabra by sale deed dated 12.1.1965 and after the death of Vinay Chhabra, defendant no.2&3 being the legal heirs of Vinay Chhabra, became the owners in possession of the disputed house. It was also alleged that in the year 1965 Smt. H. William was the tenant in the disputed house, and after her death, her sons defendant no.4&5 became tenants in the disputed house. It was further alleged that the declaratory decree passed in suit no. 28 of 1996 was null and void, which was not binding on defendant no.2&3. It was also alleged that regarding disputed house, in proceedings under section 21 of UP Act no. 13 of 1972, which was filed by Mangal Sen Chhabra against Smt. H. William and her legal heirs,was challenged in Civil Misc. Writ Petition no. 2387 of 1990 Smt. H. William versus First Additional District Judge Jhansi, which was decided by the High Court on 31.7.1995, in which, it was not accepted that a family partition took place in the year 1980 between the parties. It was also held that Mangal Sen Chhabra was not the owner in possession of the disputed house.
19. It was further averred that the plaintiff never remained the exclusive owner in possession of the disputed house, which was never given to the plaintiff, in the family partition that took place between the plaintiff and his father Mangal Sen Chhabra. The decree passed in original suit no. 539 of 2000 Mangal Sen Chhabra versus Rajesh Chhabra, was a collusive decree, on the basis of which no right title and interest in the disputed house had devolved on the plaintiff and also, the defendants were not bound by the decree passed in that suit. It was further alleged that no affidavit was sworn in by late Vinay Chhabra in favour of Mangal Sen Chhabra in P.A. case no. 65 of 1986, and on the basis of the alleged affidavit, ownership rights in the disputed house had not devolved on the plaintiff and his predecessors. It was accepted by them that regarding the disputed house several legal sale deeds were executed on 15.5.2006, by defendant no.2&3 in favour of defendant no.1, 6,7,8 & 9. With these submissions, it was prayed that the plaintiff's suit be dismissed.
20. On the basis of the pleadings of the parties, the following issues were framed by the trial court:-
(i) Whether on the basis of grounds mentioned in the plaint the agreement to sell dated 20.4.2005 and four sale deeds dated 15.5.2006 were liable to be declared null and void?
(ii) Whether the plaintiff was owner in possession of bungalow no. 329,Jhokan Bagh, Jhansi on the basis of grounds mentioned in the plaint?
(iii) Whether the suit was undervalued and the court fee paid was insufficient?
(iv) Whether the suit was barred by sections 34, 38 and 41(h) of the Specific Relief Act?
(v) Whether the proceedings of the suit was liable to be stayed under section 10 of CPC as alleged in para 34 of WS 133A 1 ?
(vi)Whether the plaintiff was entitled to any relief, if any?
O.S.No 365 of 2006
21. This suit was filed by the plaintiff with almost the same averments that were made in O.S. no.129 of 2005 by him. It was averred by the plaintiff that previously he had filed O.S. no. 129 of 2005 for getting declared the agreement to sell dated 20.4.2005, executed by the legal heirs of late Vinay Chhabra, in favour of defendant no.1, null and void, but, subsequently the legal heirs of late Vinay Chhabra, had executed 4 sale deeds on 15.05.2006 registered on 20.7.2006 in favour of defendant no.2,3,4 & 5, which were null and void.
22. It was also averred that previously in SCC Revision No. 67 of 2003 Rajesh Chhabra versus Samson William, the plaintiff was held to be the owner and landlord of the disputed house. The plaintiff sought the following reliefs:-
(i) by declaratory decree granted in favour of the plaintiff against the defendants, the registered sale deeds executed by Smt. Savita Chhabra and Rishav Chhabra in favour of defendant no.1,2,3,4 & 5 executed on 15.05.2006 registered on 20.7.2006, regarding the disputed house, be declared null and void.
(ii) by decree of permanent injunction granted in favour of the plaintiff against the defendants, the defendants be restrained from interfering in the peaceful possession and vested rights as landlord, in disputed house no. 329, new no. 1358,Jhokan Bagh,Jhansi.
Written Statement of defendants
23. It was accepted by the defendants that the disputed house was purchased wayback in the year 1965 by Sardari Lal, in the name of his son Vinay Chhabra, and after the death of Vinay Chhabra on 24.11.1987, the ownership of the house devolved on his legal heirs, his wife Smt.Savita Chhabra and son Rishav Chhabra. It was also accepted that in the disputed house Smt. H. William was a tenant and after her death, her legal heirs became tenant's in the disputed house. It was also alleged that against the decision dated 23.12.2005 in SCC Revision No. 67 of 2003 Rajesh Chhabra and another versus Samson William and others, passed by the court of First Additional District Judge Jhansi, Writ Petition had been filed in the High Court, which was pending for disposal. It was also accepted that through 4 sale deeds dated 20.7.2006, the defendants purchased the disputed house and were in possession of the disputed house.
24. It was also averred by the defendants that the plaintiff never remained the owner in possession of the disputed house.Also, Smt. H. William never remained tenant of plaintiff or his father Mangal Sen Chhabra. It was also averred that after the death of Smt. H. William, her sons Samson William and Morris William never remained tenant of Mangal Sen Chhabra and Rajesh Chhabra, and Mangal Sen Chhabra and Rajesh Chhabra were neither accepted as landlords by Morris William and Samson William nor any rent was paid by them, to Rajesh Chhabra and Mangal Sen Chhabra. It was further alleged that the plaintiff was not in possession of the disputed house, instead, the defendants were the owner in possession. The plaintiff had not claimed the relief of possession, hence plaintiff's suit was barred by section 34, 38 and 41(h) of the Specific Relief Act. The plaintiff had not claimed the relief of cancellation of the sale deeds dated 20.7.2006 as such, by declaratory decree the above sale deeds cannot be cancelled. Since, the plaintiff was not in possession of the disputed house as such, the relief of permanent injunction was barred by section 38 of the Specific Relief Act. It was also alleged that on 19.4.2005, the alleged tenants Samson William and Morris William, handed over the possession of the tenanted accommodation to Smt.Savita Chhabra and Rishav Chhabra, and till 19.7.2006, Savita Chhabra and Rishav Chhabra remained the owner in possession of the disputed house and subsequently, on 20.7.2006, the disputed house was sold through four sale deeds to the defendants, and now the defendants were in possession of the disputed house. With these submissions, it was prayed that the plaintiff 's suit be dismissed.
25. On the basis of the pleadings of the parties, the following issues were framed, in this suit:-
(i) Whether the plaintiff was owner in possession of suit property?
(ii)Whether the sale deeds executed on 15.05.2006 registered on 20.7.2006 by Smt. Savita Chhabra and Rishav Chhabra in favour of defendant no.1 Radhey Lal Jeswani, defendant no.2 Sanjay Agarwal, defendant no.3 Smt. Hema Agarwal, defendant no.4 Sunil Kumar, and defendant no.5 Mahendra Kumar, were liable to be declared null, void and ineffective on the basis of grounds mentioned in the plaint?
(iii)Whether any cause of action arose to the plaintiff against the defendants?
(iv)Whether the suit was undervalued and the court fee paid was insufficient?
(v)Whether the suit was barred by sections 34, 38 and 41(h) of the Specific Relief Act?
(vi)To what relief, if any, the plaintiff was entitled to?
26. The trial court by order dated 3.3.2008, consolidated both the above suits and for the purpose of evidence, O.S. no.129 of 2005 was made leading case, in which evidence was recorded.
27. In oral evidence, the plaintiff Rajesh Chhabra examined himself as PW-1 and his father, Mangal Sen Chhabra as PW-2. The defendants examined Sanjay Agarwal as DW-1.
28. In documentary evidence, the plaintiff filed copy of plaint in O.S. no. 28 of 1996, certified copy of ex-parte judgment dated 31.3.1999 in the above suit, copy of order in Miscellaneous Case no. 125 of 1999 dated 27.7.2001, copy of memo of appeal in Miscellaneous Civil Appeal No. 66 of 2001, order dated 30.7.2004, copy of judgment dated 17.8.2002 in O.S. no. 539 of 2000 Mangal Sen Chhabra versus Rajesh Chhabra, certified copy of affidavit of Vinay Chhabra in P.A.case no. 65 of 1986, certified copy of agreement to sell dated 20.4.2005 executed by Smt. Savita Chhabra and Rishav Chhabra in favour of Radhey Lal Jeswani, defendant no.1, copy of Miscellaneous Case no.115 of 1990 under section 39 of Guardians and Wards Act by Smt.Savita Chhabra, certified copy of the statement of Balram Chhabra in SCC suit no.118 of 1996, certified copy of order dated 27.10.2005 in P.A.case no.8 of 2002 Rajesh Chhabra versus Samson William and others, judgment in SCCR no. 67 of 2003 Rajesh Chhabra and another versus Samson William and others, certified copy of sale deed dated 12.1.1965 regarding the suit property purchased in the name of Vinay Chhabra, memo of appeal in RCA No. 22 of 2007 Rajesh Chhabra and another versus Samson William and others, certified copy of order dated 10.9.2007 in O.S. no.129 of 2005, certified copy of 4 sale deeds dated 15.5.2006, photocopy of plaint of O.S. no.301 of 2006 Rishav Chhabra versus Mangal Sen Chhabra and others dated 29.07.2006 and photocopy of order dated 20.04.2010 passed by the High Court in Writ A no.20677 of 2006 Rishav Chhabra and another versus Rajesh Chhabra and others.
29. The defendants filed in documentary evidence, receipt of house tax in the name of Sanjay and Smt.Hema, receipt of house tax in the name of Sunil Kumar and Mahendra Kumar, photocopy of electricity bill, photographs of the disputed property, copy of judgment dated 11.5.2007 in P.A. case no.8 of 2002 Rajesh Chhabra versus Samson William, certified copy of sale deed dated 15.5.2006, executed by defendant no.2 & 3 in favour of defendant no.1, certified copy of sale deeds dated 15.5.2006 executed by defendant no.2 & 3 in favour of Sanjay Agarwal, his wife Smt.Hema Agarwal, Sunil and Mahendra Kumar, photostat copy of judgment of SCC suit no.118 of 1996, copy of judgment in Writ petition no. 2387 of 1990, copy of order passed in Writ A no. 20677 of 2006, certified copy of sale deeds dated 15.5.2006 and certified copy of judgment in P.A. case no.8 of 2002 Rajesh Chhabra versus Samson William.
Findings of the trial court Issue no.1 in O.S.no.129 of 2005 and Issue no.2 in O.S. no. 365 of 2006
30. Both the issues were decided jointly. The trial court came to the conclusion that the findings in P.A. cases could not be held binding because, these cases were decided by the court of Prescribed Authority under UP Act no. 13 of 1972, which was a court of limited jurisdiction. The trial court came to the conclusion that the finding recorded in these cases would not act as res-judicata, on a title suit, decided by a regular civil court.
31. The trial court noted that in O.S. no. 28 of 1996, which was filed by the legal heirs of late Sardari Lal, the legal heirs of late Vinay Chhabra, who died in an accident on 24.11.1987, namely Rishav Chhabra and Savita Chhabra were impleaded as defendant no.6 & 7, who had started claiming ownership in the disputed property, as such, a declaration was sought by Mangal Sen Chhabra, regarding his ownership and possession of the disputed property. The trial court also noted that when the above suit was filed, defendant no.3 Rishav Chhabra was only eight years old, who was minor, the service on defendants was effected by publication in newspaper, when none appeared, one Advocate Bharat Jain, was appointed as guardian- ad- litem of the minor defendant, but he did not take any step to safeguard the interest of the minor and ultimately, the suit was proceeded ex-parte against minor on 28.10.1997. The trial court noted that the above suit was decreed ex-parte on 31.3.1999, in which the plaintiff was declared to be the exclusive owner in possession of house no. 329, situated in Civil Lines,Jhansi and it was also declared that, the defendants do not have any right or share therein.
32. The trial court also noted that the defendant no. 2 & 3, after becoming aware that suit no. 28 of 1996 was decreed ex-parte against them, had moved an application under Order 9 Rule 13 CPC, in which a plea was raised by them, that the ex-parte decree was collusive, which was against the interest of the minor, because no service was effected on the defendants, the Advocate had not safeguarded the interests of the minor. The trial court noted that the restoration application was dismissed by the court of Civil Judge(Senior Division), Jhansi by order dated 27.7.2001, against which MCA no. 66 of 2001 was filed, which was also dismissed in default on 30.7 2004.
33. The trial court concluded that since minor defendant no.3 was not properly represented in O.S. no. 28 of 1996, the decree passed in that suit was fraudulent and collusive, which was not binding on defendant no.3 and further, it would not operate as res-judicata. The trial court also concluded that there was no necessity on the part of minor defendant, to file a separate suit, on attaining majority, for challenging the fraudulent and collusive decree passed in the above suit. It was also concluded by the trial court that, since the plaintiff in the above suit, was not having any subsisting ownership rights therefore, the decree passed in the above suit required registration.
34. The trial court concluded that disputed house was purchased by late Sardari Lal in the name of minor Vinay Chhabra. It was also concluded that in the affidavit filed by Vinay Chhabra, there was no admission of ownership of the plaintiff 's father. The trial court also disbelieved the version of the plaintiff that, in the year 1980, family partition took place between the legal heirs of late Sardari Lal. The trial court also concluded that, the disputed house was not a joint Hindu family property. The trial court finally concluded that the plaintiff failed to prove that he was the exclusive owner in possession of the suit property and as such, both the issues, were decided in negative.
Issue no.2 in O.S. no.129 of 2005 and issue no.1 in O.S. no. 365 of 2005
35. Both these issues were decided jointly, by the trial court. The trial court concluded that the sale deeds and agreement to sell in question, could not be declared null and void, because it was mentioned in the deeds, that consideration was paid to the vendor's by the vendee's.
Issue no.3 & 4 in O.S. no. 365 of 2006
36. The trial court decided these issues in favour of the plaintiff by concluding that the plaintiff was having cause of action to file the suit. The trial court also concluded that the plaintiff had correctly valued the suit and the court fee paid was sufficient.
Issue no 4 in O.S. no. 129 of 2005 and issue no. 5 in O.S.no. 365 of 2006
37. The trial court decided both the issues jointly. The trial court concluded that since the plaintiff was out of possession of the disputed house, he should have claimed possession, but the plaintiff had only claimed declaration, without claiming possession, which was barred by section 34 and 41(h) of the Specific Relief Act. It was also held that in such circumstances, no injunction could be granted being barred by section 38 of the Specific Relief Act.
Issue no.6 in both the suits
38. The trial court decided both the issues jointly. It was held that the plaintiff failed to prove that partition took place in the year 1980, between his father and his uncles. Further, he could not prove his exclusive ownership over the suit property and since, admittedly he was out of possession of the suit property, the plaintiff was held not entitled to any relief in both the suits. With this reasoning, both the suits of the plaintiff were dismissed.
39. Aggrieved against the dismissal of both the above mentioned suits, the plaintiff appellant has filed two separate First Appeals 60 of 2011 and 70 of 2011, before this Court.
40. Learned counsel for the plaintiff-appellant submitted that Vinay Chhabra was only eight years old, in the year 1965, when his father Sardari Lal had purchased the property in his name, out of the funds of the joint Hindu family. Learned counsel submitted that since Vinay Chhabra was minor at that time, he was not having any independent income, as such, the whole consideration of the sale deed, was paid by Sardari Lal. Learned counsel submitted that Sardari Lal died in the year 1973, leaving behind his seven sons. Sardari Lal also left substantial property of the joint Hindu family, which was subsequently, orally partitioned among his heirs ,in the year 1980.
41. Learned counsel further submitted that in the year 1980, Vinay Chhabra had attained majority, who was also a party to the above partition, which was also accepted by him, by filing his affidavit in a subsequent eviction case, filed against the tenants, by plaintiffs father. Learned counsel further submitted that on 24.11.1987, Vinay Chhabra died in an accident, leaving behind his wife Smt. Savita Chhabra and minor son Rishav Chhabra. Learned counsel submitted that during his lifetime, Vinay Chhabra never disputed the partition, but after his death, his legal heirs raised a dispute, as such, the plaintiffs father Mangal Sen Chhabra filed suit no. 28 of 1996, before the competent civil court, for the relief of declaration of the ownership and possession of the disputed house no. 329, in which the defendant no. 2 & 3 of O.S. no.129 of 2005, were also arrayed as defendants no. 6&7, that suit was decreed on 31.3.1999.
42. Learned counsel further submitted that in suit no. 28 of 1996, the issue of ownership and possession of disputed house no. 329, was directly in issue, which was decided in favour of the plaintiff 's father Mangal Sen Chhabra, as such, that issue cannot be re-agitated in a subsequent proceeding, between the parties or their successors. Learned counsel further submitted that even if, the ex-parte decree passed in the above suit was held to be collusive and illegal, even then, it would operate as res-judicata between the parties, but, the trial court has erred in not treating the above decree as binding, in the facts and circumstances of the case. Learned counsel further submitted that an application under Order 9 Rule 13 CPC was filed by the defendant no.2 & 3, for setting aside the ex-parte decree in suit no. 28 of 1996, which was dismissed on merits, against which a Miscellaneous Civil Appeal was also filed by the defendants, which was also dismissed in default, as such, the decree passed in suit no. 28 of 1996 has attained finality, which would operate as res-judicata, insofar, as the title and ownership of the disputed house was concerned. Learned counsel further submitted that the above decree conclusively proved that the disputed house was property of joint Hindu family, regarding which an oral partition took place between the members of the joint Hindu family, which was accepted and acted upon by the members of the family and in accordance with the above partition, the disputed house came in the share of the plaintiffs father Mangal Sen Chhabra. Learned counsel further submitted that on the basis of subsequent partition, which took place between the plaintiff and his father, the plaintiff was the owner in possession of the disputed house.
43. Learned counsel further submitted that even if, it is assumed that, in suit no. 28 of 1996, guardian ad-litem, appointed by the court, failed to protect the interest of minor defendant, the defendant had the remedy of filing a suit, on attaining majority, to challenge the ex-parte decree passed in the above suit, and the minor defendant had availed that opportunity on attaining majority, by filing O.S. no.301 of 2006 Rishav Chhabra versus Mangal Sen Chhabra and others in the court of Civil Judge(Senior Division), Jhansi, which was dismissed in default on 7.12.2015 as such, the ex-parte decree passed in O.S. no. 28 of 1996, has attained finality, which cannot be challenged on any ground whatsoever and as such, the trial court could not have examined the ex-parte decree in O.S. no.28 of 1996, but the trial court exceeded its jurisdiction and went on to consider the legality of the decree passed in the above suit.
44. Learned counsel further submitted that the partition took place between the legal heirs of late Sardari Lal in the year 1980, which was accepted by all the heirs, otherwise, litigation would have ensued between the heirs. Learned counsel submitted that in the instant case, the dispute has not been raised by Vinay Chhabra, but by his legal heirs.
45. Learned counsel further submitted that when the house was purchased in the year 1965, even at that time Smt. H. William was the tenant, and after her death, her two sons Samson William and Morris William, inherited the tenancy, who remained in possession of the tenanted accommodation till, it was purchased by defendants by sale deed dated 15.5.2006. Learned counsel submitted that since, the tenants were inducted by the predecessors of the plaintiff, they were bound to hand the vacant and physical possession of the tenanted accommodation to the plaintiff, as such, the possession of the defendants is illegal. Learned counsel further submitted that since the tenants were in possession of the disputed house, it will amount to constructive/legal possession of the plaintiff, as such, the trial court erred in concluding that the plaintiff was not in possession of the disputed house and the suit was barred by section 34, 38 and 41(h) of the Specific Relief Act. Learned counsel further submitted that it was not disputed by the parties that defendant no.4 & 5 in O.S. no. 129 of 2005 were tenants in the disputed house. With these submissions, it was prayed that both the appeals be allowed and consequently, both the suits of the plaintiff be decreed.
46. Per contra, learned counsel for defendant respondents submitted that the plaintiff failed to prove that the disputed house was a joint Hindu family property. Learned counsel submitted that the disputed house was purchased for the benefit and in the name of minor Vinay Chhabra, as such, after his death, his heirs became owners in possession of the disputed house, and in this capacity, they had executed the sale deeds on 15.5.2006 in favour of the defendants, which were perfectly legal. Learned counsel further submitted that the ex-parte decree in suit no. 28 of 1996, was a fraudulent and collusive decree, in which notices on the defendants were sent on wrong address as such, they never became aware of the suit and as such, could not appear before the trial court. Further, the interest of minor Rishav Chhabra was not protected by the court, also the guardian ad-litem appointed by the court, failed to protect the interest of the minor defendant, who was in collusion with the plaintiff of that suit as such, the decree passed in that suit was not binding on the minor, and the validity of the decree could be challenged, wherever, that decree was enforced against the minor defendant. Learned counsel further submitted that plaintiff failed to prove that the disputed house was the property of the joint Hindu family. The plaintiff also failed to prove that regarding the disputed property, a partition took place between the heirs of late Sardari Lal, as such, the disputed house never devolved upon the predecessor of plaintiff, as such, the plaintiff never acquired the ownership of that house, and in view of these facts, the plaintiff was not entitled to get any relief from the court regarding the disputed house. Learned counsel further submitted that in these facts and circumstances, the trial court had not committed any illegality in dismissing both the suits of the plaintiff.With these submissions, it was prayed that both the appeals are meritless and be dismissed.
47. I've heard the learned counsel of both the parties, perused the record and case laws submitted by them.
48. On the basis of the pleadings, evidence adduced in the suits and arguments of the learned counsel of the parties, the following issues arise for determination in these appeals:-
(1)Whether the decree passed in O.S.no. 28 of 1996 operates as res-judicata, insofar, the title and possession of the disputed house is concerned?
(2)Whether the decree passed in O.S.no. 28 of 1996, can be challenged, in these proceedings, on the ground that the decree is fraudulent,collusive and is against the interest of minor defendant, who was not properly represented in that suit ?
(3) What is the effect of O.S. no.301 of 2006 filed by the minor defendant Rishav Chhabra, on attaining majority, for declaring the ex-parte decree dated 31.03.1999 passed in O.S. no.28 of 1996 null and void, which was dismissed in default on 7.12.2015 ?
(4)Whether the disputed house was one of the properties of the joint Hindu family of late Sardari Lal Chhabra, which was orally partitioned among his heirs in the year 1980, after the death of Sardari Lal Chhabra?
(5)Whether the disputed house was the benami property of late Sardari Lal Chhabra?
(6)Whether the decree passed in O.S.no. 28 of 1996 required registration?
(7)Whether Samson William and Morris William are the tenants in the disputed house, who had inherited tenancy from their late mother Smt. H. William?
(8)Whether the possession of the tenants, is to be considered as constructive/lawful possession of the plaintiff, insofar as the disputed house is concerned ?
(9)Whether the court erred in declaring in O.S. No. 28 of 1996 Mangal Sen Chhabra the owner in possession of the disputed house, because prior to the filing of the suit, in the year 1995 itself, in the alleged family partition between him and his son Rajesh Chhabra, the disputed house had already devolved on his son Rajesh Chhabra?
(10)Whether the plaintiff 's suit is barred by section 34, 38 and 41(h) of the Specific Relief Act?
(11)What relief the plaintiff is entitled to get?
Pleadings of O.S.no. 28 of 1996, issues arising in that suit, findings recorded by the court ,while decreeing the suit ex-parte on 31.3.1999
49. The plaintiff Mangal Sen Chhabra had filed the above O.S. no.28 of 1996 with the averments that his father late Sardari Lal Chhabra had seven sons. In this suit the plaintiff had impleaded the legal heirs of deceased Vinay Chhabra as defendant no. 6 Rishav Chhabra and defendant no.7 Smt.Savita Chhabra. The plaintiff averred in that suit that during his lifetime, Sardari Lal had solemnised two marriages, from first marriage a son named Shyam and daughter named Shashi were born and from the second wife, plaintiff and defendants were born. Since the relations between plaintiff and Shyam were not cordial, as such Sardari Lal in the year 1962, willingly separated Shyam after giving him his share. In view of this, after the death of Sardari Lal, no property devolved on Shyam. The plaintiffs father Sardari Lal died on 5.8.1973, and after his death, the property which was purchased in different names, was in joint possession of the plaintiff and the defendants. The disputed bungalow no. 329 was purchased by Sardari Lal, during his lifetime in the name of defendant no. 6 's father Vinay Chhabra, who was minor at that time. According to plaintiff, after the death of Sardari Lal, a partition took place between the plaintiff and the defendant's in the month of January 1980, in which the disputed bungalow no. 329, including the tenants, came to the share of plaintiff and thereafter, the plaintiff realised the rent from the tenant Smt. H. William. The plaintiff specifically averred that the partition was acted upon and as such, after the partition, all the defendants came into the possession of their respective properties, devolved in partition. The plaintiff also averred that regarding the disputed bungalow no. 329, a partition took place between him and his son Rajesh in the year 1995, in which the disputed bungalow was given by the plaintiff to his son Rajesh. The defendant no.6's father Vinay Chhabra died in an accident on 24.11.1987, leaving behind his legal heirs as defendant no.6 and 7. The plaintiff specifically pleaded that the defendant no.6 and 7 were well aware that the partition had been effected between the plaintiff and the defendants in the year 1980 but even then, the defendant no.6 and 7 began to assert their ownership rights in the disputed bungalow no. 329 on the basis of the alleged sale deed executed in favour of their predecessor Vinay Chhabra. The plaintiff also averred that regarding the disputed bungalow, the defendant no.6 and 7 had got published a public notice in the newspaper Dainik Jagran on 3.1.1996, then the plaintiff felt the need for obtaining declaration regarding the disputed property. The plaintiff had impleaded his brothers as defendant number 1 to 5 in the suit, because they were also parties to the partition. The plaintiff prayed that by decree of the court he be declared the sole owner in possession of disputed bungalow no. 329, civil lines, Jhansi and further, the defendants have got no right title interest in this bungalow.
50. In the above suit, summons were sent to the defendants and thereafter, publication was also effected in the newspaper but none of the defendants appeared, as such by order dated 15.5.1996 the proceedings of the suit were proceeded ex-parte against defendant no.1 to 5 & 7. The proceedings of the suit were proceeded ex-parte against minor defendant no.6 Rishav Chhabra on 28.10.1997. In support of his pleadings, the plaintiff produced the certified copy of the affidavit of Vinay Chhabra filed in P.A. case no. 65 of 1986, Mangal Sen Chhabra versus H. William and the certified copy of order dated 18.4.1992 of the court of District Judge, Jhansi passed in Miscellaneous Case no. 115 of 1990 Smt. Savita Chhabra versus Ramjeet Chhabra. The plaintiff also filed his affidavit in oral evidence.
51. The trial court concluded that Vinay Chhabra had filed his affidavit in P.A. case no. 65 of 1986, Mangal Sen Chhabra versus H. William, in which he had accepted that the sale deed of disputed house no. 329, Jhokan Bagh, Jhansi was executed in his favour, but in partition, that property had devolved on his brother Mangal Sen Chhabra and as such, he had no right title and interest in that property. He acknowledged that Mangal Sen Chhabra was the sole owner of that property, who was entitled to realise the rent also. The trial court concluded that since the husband of defendant no.7 and the father of defendant no.6, had acknowledged in his lifetime, in the above affidavit, that the plaintiff was the sole owner of disputed house no. 329, as such the defendant no.6 and 7, who were the legal heirs of late Vinay Chhabra, had inherited the same right in the property, which devolved on Vinay Chhabra in that partition. The trial court also concluded that the declaration published by defendant no.7 in the newspaper, that she is entitled to realise the rent of disputed house no. 329, was without any legal right. The trial court also concluded that when the disputed property was purchased by Sardari Lal Chhabra, in the name of Vinay Chhabra, then at that time Vinay Chhabra was minor and after the death of Sardari Lal Chhabra, the properties left behind by him, came into the joint ownership of the plaintiff and the defendant's, regarding which a partition took place in the month of January 1980, in which the disputed house no. 329, civil lines Jhansi, came to the share and possession of the plaintiff along with the tenants, and thereafter, the plaintiff had also realised the rent from the tenants residing in that property. The trial court came to the conclusion that since no contrary evidence had been adduced by the defendants as such, there was no other alternative, but to believe the evidence adduced by the plaintiff. On the above reasoning, the trial Court decreed the suit ex-parte in favour of the plaintiff against the defendants, by declaring that the plaintiff was the sole owner in possession of the disputed bungalow no. 329, civil lines, Jhansi in which the defendants had no right and share.
52. It is apparent that in O.S. no. 28 of 1996, the title and possession of the disputed house no. 329 was directly in issue between the parties to the suit, on which the trial court had recorded a definite finding that in the oral partition that took place in the year 1980, after the death of late Sardari Lal Chhabra, between the sons of Sardari Lal Chhabra, the disputed house had come to the share of the plaintiff, along with the tenants residing in that house, at that time. The trial court had declared the plaintiff Mangal Sen Chhabra to be the sole owner in possession of the disputed house no. 329 and had also declared that the defendants, had no right or share in the disputed house.
Subsequent proceedings initiated by Smt.Savita Chhabra and Rishav Chhabra for setting aside the ex-parte decree dated 31.3.99 passed in O.S. no. 28 of 1996
53. It is also apparent that after the passing of the ex-parte decree in O.S. no. 28 of 1996, Savita Chhabra and Vinay Chhabra, instituted in the court of Civil Judge (Senior Division) Jhansi, Miscellaneous Case no. 125 of 1999 Savita Chhabra and another versus Mangal Sen Chhabra under Order 9 Rule 13 CPC, for setting aside the above ex-parte decree, on the ground that the summons in the suit were not duly served, they had no knowledge of that suit, the plaintiff had fraudulently got the suit decreed ex-parte against them, their address mentioned in the plaint was wrong since they resided in Allahabad, they never received any summons. It was also averred by them that Rishav Chhabra was minor, his guardian ad-litem Bharat Jain, Advocate, had never contacted the minor defendant, who was in collusion with plaintiff Mangal Sen Chhabra.
54. Mangal Sen Chhabra objected to the above application by submitting that the applicants were fully aware of the proceedings of O.S. no. 28 of 1996 but they deliberately didn't appear in that suit. Bharat Jain, Advocate was duly appointed guardian ad litem by the court, who had duly protected the interest of the minor defendant and the application was time barred.
55. The trial court concluded that the application was time barred and further, there was no sufficient ground to recall the ex-parte decree, as such, the application under Order 9 Rule 13 CPC, was rejected vide order dated 27.7.2001.
56. The defendants Savita Chhabra and Rishav Chhabra carried the matter further, by challenging the above order dated 27.7.2001, by instituting Miscellaneous Civil Appeal no. 66 of 2001 Smt. Savita Chhabra vs. Mangal Sen Chhabra and others, which was dismissed for non prosecution on 30.7.2004 by the court of Additional District Judge/Special Judge SC/ST Act, Jhansi. The matter was not carried any further by the contesting defendants, as such, the decree dated 31.3.1999 passed in O.S. no. 28 of 1996, attained finality.
57. The Apex Court in the case of Baldev Singh vs. Surinder Mohan Sharma and others (2003) 1 SCC 34, held as under:-
13. It is now a well-settled principle of law that an ex-parte decree is as good as a contesting decree unless it is set aside. An ex-parte decree can be set aside by the court passing it or by an appellate court only at the instance of a person aggrieved thereby.
58. The Apex Court in the case of R. Unnikrishnan and another vs. V.K.Mahanudevan and others (2014)4 SCC 434, while considering the applicability of the principle of res-judicata, held as under;-
19. It is trite that law favours finality to binding judicial decisions pronounced by courts that are competent to deal with the subject-matter. Public interest is against individuals being vexed twice over with the same kind of litigation. The binding character of the judgments pronounced by the courts of competent jurisdiction has always been treated as an essential part of the rule of law which is the basis of the administration of justice in this country. We may gainfully refer to the decision of the Constitution Bench of this Court in Daryao v. State of U.P. [AIR 1961 SC 1457] where the Court succinctly summed up the law in the following words: (AIR p. 1462, paras 9 & 11)
9. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation.
* * *
11. The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis.
20. That even erroneous decisions can operate as res judicata is also fairly well settled by a long line of decisions rendered by this Court. In Mohanlal Goenka v. Benoy Kishna Mukherjee [(1952) 2 SCC 648 : AIR 1953 SC 65] this Court observed: (AIR p. 72, para 23)
23. There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata.
21. Similarly, in State of W.B. v. Hemant Kumar Bhattacharjee [AIR 1966 SC 1061 : 1966 Cri LJ 805] this Court reiterated the above principles in the following words: (AIR p. 1066, para 14)
14. A wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides.
22. The recent decision of this Court in Kalinga Mining Corpn. v. Union of India [(2013) 5 SCC 252 : (2013) 2 SCC (Civ) 797] is a timely reminder of the very same principle. The following passage in this regard is apposite: (SCC pp. 267-68, para 44)
44. In our opinion, if the parties are allowed to reagitate issues which have been decided by a court of competent jurisdiction on a subsequent change in the law then all earlier litigation relevant thereto would always remain in a state of flux. In such circumstances, every time either a statute or a provision thereof is declared ultra vires, it would have the result of reopening of the decided matters within the period of limitation following the date of such decision.
23. In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy [(1970) 1 SCC 613] this Court held that for the application of the rule of res judicata, the court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue if one purely of fact decided in the earlier proceedings by a competent court must in any subsequent litigation between the same parties be recorded as finally decided and cannot be reopened. That is true even in regard to mixed questions of law and fact determined in the earlier proceeding between the same parties which cannot be revised or reopened in a subsequent proceeding between the same parties. Having said that we must add that the only exception to the doctrine of res judicata is fraud that vitiates the decision and renders it a nullity. This Court has in more than one decision held that fraud renders any judgment, decree or order a nullity and non est in the eye of the law. In A.V. Papayya Sastry v. State of A.P. [(2007) 4 SCC 221] , fraud was defined by this Court in the following words: (SCC pp. 231-32, para 26)
26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss [and cost] of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of finality of litigation cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants.
24. To the same effect is the decision in Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar [(2008) 9 SCC 54 : (2008) 2 SCC (L&S) 802] , wherein this Court held: (SCC p. 70, para 32)
32. (ii) If a fraud has been committed on the court, no benefit therefrom can be claimed on the basis thereof or otherwise.
59. The Apex Court in the case of Vaijinath vs. Afsar Begum (2020) 15 SCC 128, reiterated the principles of res-judicata enunciated earlier in the case of Unnikrishnan(supra) and also held as under:-
12. It was not the case of the respondents that the statutory certificate had been obtained by any fraud or misrepresentation by the appellant in which case undoubtedly it would have been open for reconsideration. The conclusion of the High Court that the issuance of the certificate was fictitious, unfounded and useless by reasons of being null and void is therefore completely unsustainable. The decisions on the earlier occasion had been rendered by a proper competent forum, after hearing the parties and on perusal of records. An erroneous decision by a proper forum, unless assailed before a superior forum will attain finality inter partes.
*** *** ***
15. At this juncture we also consider it appropriate to take note of the submissions that the dismissal of the appeal by the respondent on grounds of limitation on 9-11-1971 gave a quietus to the matter on merits also as observed in Shyam Sundar Sarma [Shyam Sundar Sarma v. Pannalal Jaiswal, (2005) 1 SCC 436] as follows: (SCC p. 440, para 9) 9.1. In Sheodan Singh v. Daryao Kunwar [(1966) 3 SCR 300 : AIR 1966 SC 1332] rendered by four learned Judges of this Court, one of the questions that arose was whether the dismissal of an appeal from a decree on the ground that the appeal was barred by limitation was a decision in the appeal. This Court held: (AIR p. 1337, para 13: SCR pp. 308 H-309 B)
13. We are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal.
60. From the law laid down by the Apex Court in the cases of Unnikrishnan(supra) and Vaijinath(supra), it is apparent that if the earlier decision had been rendered by competent court, after hearing the parties and on perusal of records, then even an erroneous decision by that court, unless assailed before a superior court, would attain finality in between the parties, and the findings of that earlier suit, would operate as res-judicata in a subsequent suit, between the same parties or their successors, where similar question is involved. It is also well-settled that the correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res-judicata. It has been specifically held that the matter in issue if, is purely of fact decided in the earlier proceedings by a competent court then, it must, in any subsequent litigation between the same parties, be recorded as finally decided and cannot be reopened. It was further held that this applies to even in regard to mixed questions of law and fact determined in the earlier proceeding between the same parties, which cannot be revised or reopened in a subsequent proceeding between the same parties. The Apex Court also held that the only exception to the doctrine of res-judicata, is fraud that vitiates the decision and renders it a nullity or non est in the eye of law. It is also apparent that where a decision is given by the trial court on merits and the matter is taken in appeal and the appeal is dismissed on the ground of limitation or default, then such dismissal, confirms the decision given on merits by the trial court.
61. It is apparent that in O.S. no. 28 of 1996, the issue of title and possession of the disputed bungalow no. 329 was directly in issue between the plaintiff and the defendant's, in which the plaintiff had pleaded that the disputed property belonged to the joint Hindu family of the late Sardari Lal Chhabra, who died on 5.8.1973, and after his death, family partition took place between the plaintiff and defendants in the month of January 1980, in which all the properties left behind by Sardari Lal Chhabra, were divided between his seven sons, including Vinay Chhabra, who is the father of Rishav Chhabra and husband of Savita Chhabra, and in this partition, the disputed property came to the share of the plaintiff of that suit Mangal Sen Chhabra. The trial Court decreed the suit ex-parte in favour of the plaintiff by declaring that the plaintiff was the owner in possession of the disputed bungalow no. 329, civil lines Jhansi, in which the defendants had no right and share.
62. It is also apparent that in O.S. no. 28 of 1996, besides the legal heirs of late Vinay Chhabra and plaintiff, five other sons of late Sardari Lal Chhabra were arrayed as defendants no. 1 to 5, who never challenged the alleged partition that took place in the month of January 1980, which proves that indeed a partition took place between the seven sons of late Sardari Lal Chhabra, which was accepted by all the sons, and after the partition, the parties occupied the property, which came in their respective share.
63. It also appears that a release application under UP Act no. 3 of 1947 was filed by Sardari Lal Chhabra on the ground of his personal need, which was dismissed on 2.3.1972. An appeal filed by Sardari Lal Chhabra was also dismissed on 6.12.1972. Again, a release application under section 21(1)(a) of UP Act no. 13 of 1972 was filed by Mangal Sen Chhabra for getting released the disputed bungalow no. 329 from the tenant Smt. H. William(deceased) through LR's, on the ground of personal requirement on 23.4.1973, in which a plea was taken by Mangal Sen Chhabra that the property devolved on him on account of family settlement, which was dismissed by the court of Prescribed Authority on 10.7.1974 and it was held that the family settlement was not proved and therefore, Mangal Sen Chhabra cannot be said to be the sole owner of the house in question.. An appeal preferred by Mangal Sen Chhabra was also dismissed on 19.1.1976. Again, another release application under section 21(1)(a) of the above Act was filed on 11.7.1989, which was dismissed by the court of Prescribed Authority by concluding that no partition between Mangal Sen Chhabra and his brothers took place, which was reversed in appeal. The appellate order was challenged by the tenant Smt. H. William(deceased) through LR's by filing Civil Miscellaneous Writ Petition no. 2387 of 1990 which was allowed, by this Court vide order dated 31.7.1995.
64. It is well settled that in an eviction proceeding instituted in the court of Prescribed Authority constituted under UP Act no. 13 of 1972, between plaintiff and defendant, only relationship of landlord and tenant is seen, the ownership of the disputed property is neither in issue nor can be adjudicated by the court of limited jurisdiction, the proceedings are summary in nature as such, any finding given by such court, in these proceedings, regarding title and ownership of the disputed property, cannot operate as res-judicata .In view of this, the contesting defendants cannot legally rely upon any finding given by the above court, regarding title and ownership of the disputed bungalow. Even the trial court, has concluded ,that finding given in the proceedings under UP Act no. 13 of 1972, does not operate as res-judicata, insofar as the title of the disputed property is concerned.
Whether the ex-parte decree of O.S. no. 28 of 1996 can be set aside on the ground that it was passed against minor Rishav Chhabra, whose interest was not duly protected by the court?
65. The legal heirs of deceased Vinay Chhabra, his wife Smt. Savita Chhabra and son Rishav Chhabra, have also assailed the ex-parte decree in O.S. no. 28 of 1996, on the ground that it was passed against the then minor Rishav Chhabra, the court appointed guardian ad litem Bharat Jain, Advocate, was in collusion and connivance with the plaintiff Mangal Sen Chhabra, the interest of the minor defendant was not protected, as such, the ex-parte decree was not binding on the defendants.
66. It is specifically recorded in the order dated 27.7.2001 passed by the court of Civil Judge (Senior Division), Jhansi in Miscellaneous Case no. 125 of 1999, Savita Chhabra and another versus Mangal Sen Chhabra that vide order dated 12.3.1997, the court had appointed Shri Bharat Jain, Advocate as guardian ad litem of the minor defendant, before deciding the suit ex-parte. It is also apparent that the above application instituted by minor under Order 9 Rule 13 CPC for setting aside the ex-parte decree had been dismissed by the court on 27.7.2001, and the Miscellaneous Civil Appeal no. 66 of 2001 preferred against this order, had also been dismissed for non prosecution on 30.7.2004, as such, the decree passed in O.S. no. 28 of 1996 has attained finality.
67. Section 6 of the Limitation Act, 1963 reads as under:-
6.Legal disability.(1)Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefore in the third column of the Schedule.
(2)*** (3)*** (4)*** (5)*** Explanation.***
68. The Apex Court in the case of Kameshwari Devi(SMT) alias Kaleshwari Devi and others vs. Barhani(SMT) dead by LRS. and others (1997)10 SCC 273, held as under:-
4. It is true, as rightly contended by Dr Shankar Ghose, learned Senior Counsel, that in a case where the estate of the minor is involved in an action for partition or any other suit, the estate of the senior(sic minor) is required to be properly represented taking all diligent steps by either guardian ad litem or the court guardian. If the interest of the estate of the minor is not protected, necessarily, the minor on his attaining majority or within three years thereafter is entitled to file the suit under Section 7 of the Limitation Act, after cessation of the disability to question the correctness of a decree which is sought to be made binding on him. But in that case, the limited defence that could be open to him is that either the decree in the earlier suit was obtained by fraud/collusion or by negligence by the court guardian or that the guardian ad litem did not safeguard the interest of the estate of the minor. On proof of those facts, necessarily, the decree does not bind him and it is open to the court to go behind the decree and consider the right of the minor dehors the decree. But, in this case, whether that question arises for decision is to be seen. It is true, as found by all the courts, that the document, Ex. C, Phatbandi was a document marked as D/2 in Suit No. 178 of 1957. The sheet-anchor, in that suit, the defence open to all the parties on the document was that it was not a genuine document and was brought into existence only to defraud the creditors. That question was common to the interest of all the persons including the minor. The parties had hotly contested the suit and the matter was carried up to the High Court and the High Court had considered it and recorded the finding that it was true, valid and binding deed being a registered partition deed and was acted upon; and it bound the parties. Under these circumstances, though the court guardian had not filed any separate written statement, it makes little difference on the facts in this case, for the reason that the defence on Ex. C was common to all and the estate of the minor was sufficiently represented by appointment of the court guardian and that court had, in fact, gone into that question. It binds the appellant and operates as res judicata. If it were a case dehors the document and any other independent right was available and not set up nor considered in the earlier suit, necessarily that question could be gone into in the present suit since that was not pleaded by filing any written statement or contested by the court guardian in that behalf. No other plea was raised in this suit. Under these circumstances, the finding that Phatbandi, Ex. C binds the parties including the appellant is a finding validly recorded.
(emphasis supplied)
69. It is clear from the law laid down by the Apex Court in Kameshwari Devi(supra) that where the property of the minor is involved in a suit, it is required to be properly represented by either guardian ad litem or a guardian appointed by the court. It was further held that where the interest of the minor is not protected, in that case, the minor on attaining majority or within three years thereafter, is entitled to file the suit under the Limitation Act, after cessation of the disability, to question the correctness of a decree which is sought to be made binding on him. It was further held that where such a suit is filed by the minor on attaining majority, the limited defence that could be raised by such minor is that,either the decree in the earlier suit was obtained by fraud/collusion or by negligence by the court guardian or that the guardian ad litem did not safeguard the interest of the estate of the minor.
70. It is apparent that the minor defendant was represented by his mother Smt. Savitra Chhabra in case no.125 of 1999 filed under Order 9 Rule 13 CPC for setting aside the ex-parte decree passed in O.S. no. 28 of 1996 as well as, in Miscellaneous Civil Appeal no. 66 of 2001.
Effect of O.S. no. 301 of 2006 filed by Rishav Chhabra on attaining majority, for cancelling the ex-parte decree dated 31.03.1999 in OS. no. 28 of 1996 and it's dismissal for non prosecutioon on 7.12.2015
71. It is also apparent that the minor defendant Rishav Chhabra had also filed O.S. no. 301 of 2006 Rishav Chhabra versus Mangal Sen Chhabra and 6 others, on attaining majority in the court of Civil Judge(Senior Division) Jhansi on 29.7.2006 with the following averments:-
That he is the co-owner of house no.329,Jhokan Bagh,Jhansi which was purchased by his father Vinay Chhabra in the year 1965 through sale deed and its possession was also taken by his father. His father Vinay Chhabra died on 25.11.1987 in an accident and at that time he was minor and was in the care of his mother Smt. Savita Chhabra, who were harassed by the defendants, they did not get any share in the movable and immovable property of the joint Hindu family. At that time, he was represented by his mother, who resided in Allahabad and due to this, Mangal Sen Chhabra filed O.S. no.28 of 1996, in which notices were not served because the address given by the plaintiff was wrong. In 1996, he alongwith his mother resided in Allahabad, which was in the knowledge of Mangal Sen Chhabra but for obtaining the ex-parte decree, the plaintiff in that suit had effected service on his wrong address and had also subsequently obtained ex-parte decree. His mother had moved an application and had also filed Misc. Civil Appeal for setting aside the ex-parte decree but that was also rejected. His mother also didn't protect his interest and as such, the ex-parte decree is illegal and not binding on him. He became aware of the ex-parte decree during the pendency of O.S. no.129 of 2005 and when he tried to inquire from his mother about the above decree, even she didn't disclose the correct facts to him. It was further pleaded that in the above suit, no application was moved by the plaintiff for appointment of his guardian and even the court did not appoint anyone, as his guardian. It was further pleaded that in Civil Misc. Writ Petition no.2387 of 1990 Mrs. H. William versus 1st Additional District Judge,Jhansi, the alleged oral partition between plaintiff and defendants was not accepted. Besides this, as per the provisions of Hindu Minority and Guardianship Act,1956 without obtaining the permission of the court, the property of the minor cannot be partitioned. In view of this, if any partition had been effected by his mother, even then, it is not binding on him. Since the property was purchased in the name of his father Vinay Chhabra by registered sale deed in the year 1965, as such, the property never became the property of joint Hindu family, as such, it could not have been declared to be the property of the plaintiff Mangal Sen Chhabra in O.S. no.28 of 1996. The decree passed in the above suit was void and illegal, which was not binding on him. It was also pleaded that the cause of action for filing the suit arose on 17.3.2005, when he attained majority, thereafter, in the month of July 2005 when he became aware that the defendants had obtained ex-parte decree against him. The plaintiff in this suit claimed that it be declared by the court that the judgment and decree dated 31.3.1999 passed in O.S. no.28 of 1996, Mangal Sen Chhabra versus Ramjeet Chhabra and others, was a void and illegal document, which was not binding on him and the defendants be further restrained by decree of permanent injunction from interfering in his possession of disputed house no.329, Jhokan Bagh, Jhansi.
72. It is apparent that the above O.S. no.301 of 2006 was dismissed by the court of Additional Civil Judge(Senior Division) Court no.1, Jhansi, for non-prosecution on 7.12.2015.
73. It is also apparent that although the decree passed in O.S. no. 28 of 1996 had attained finality, with the dismissal of Miscellaneous Civil Appeal no.66 of 2001 on 30.7.2004, even then, the minor defendant Rishav Chhabra had one opportunity of assailing the decree, on attaining majority or within a period of three years thereafter, on the ground that his interest in O.S. no. 28 of 1996 was not properly safeguarded and the guardian ad litem appointed by the court was in collusion and connivance with the plaintiff, by instituting a suit. It is apparent that Rishav Chhabra had filed O.S. no. 301 of 2006, on attaining majority against Mangal Sen Chhabra and 6 others, which was dismissed for non prosecution by the court on 7.12.2015. In view of this, the decree passed in O.S. 28 of 1996 has attained finality, in every respect, and even the minor defendant Rishav Chhabra cannot assail its legality on the ground that it was passed against his interest or his interest was not properly safeguarded by the guardian ad litem appointed by the court. It is apparent that the decree in O.S. no. 28 of 1996 has been passed by court of competent jurisdiction as such, even if, it is deemed erroneous, even then, it is binding on the parties to the suit, as such, it operates as res-judicata in subsequent suit between the parties or their successors. In view of this, the trial court had no legal jurisdiction to examine the validity of the decree passed in O.S. no. 28 of 1996, acting like an Appellate Court, which is wholly contrary to the settled legal principles. The trial court has thoroughly examined the validity of the decree passed in O.S. no. 28 of 1996, as if, it was hearing Appeal, against that decree. The trial court has ultimately concluded that the decree in O.S. no. 28 of 1996 does not operate as res-judicata because it was a collusive decree which was obtained fraudulently, meaning thereby, the plaintiff was not the owner in possession of the disputed bungalow no. 329, which is contrary to the decree passed in O.S. no. 28 of 1996. The trial court has fundamentally erred in ignoring the well-settled principle of res-judicata. The finding recorded by the trial court is whimsical, arbitrary and against all settled principles of law.
74. Learned counsel for the respondents have argued that since the decree in O.S. no. 28 of 1996 was fraudulent and collusive, which was against the interest of the minor defendant Rishav Chhabra, as such, there was no legal requirement on the part of the minor defendant to file a separate suit on attaining majority for cancelling the above decree. Learned counsel in support of his above argument, has relied upon the case of Asharfi Lal vs. Smt.Koili (Dead) through Lrs (1995)4 SCC 163 (by 3 Judges).
75. The Apex Court in the case of Asharfi Lal(supra) held as under:-
13. After the said decision of the Privy Council, the matter has been considered by various High Courts. Most of the High Courts have taken the view that though a judgment against a minor cannot be avoided on the ground of fraud or gross negligence on the part of his next friend under Section 44 of the Evidence Act, it is permissible for the minor to file a suit to set aside the decree on the ground of fraud or gross negligence on the part of his next friend. (See : Mahesh Chandra Bayan v. Manindra Nath Das [AIR 1941 Cal 401 : ILR (1941) 1 Cal 477] ; N.P.L. Egappa Chettiar v. S.V.L. Ramanathan Chettiar [AIR 1942 Mad 384 : (1942) 1 MLJ 155 : ILR (1942) Mad 526] ; Iftkhar Hussain Khan v. Beant Singh [AIR 1946 Lah 233 : ILR (1946) Lah 515 : 225 IC 456] ; Mohammad Bakhsh v. Allah Din [AIR 1942 Oudh 33 : 196 IC 457] ; Kamakshya Narain Singh Bahadur v. Baldeo Sahai [AIR 1950 Pat 97 : ILR 27 Pat 441] and Rameshwar Prasad v. Ram Chandra Sharma [AIR 1951 All 372 : 1950 ALJ 719] .) The Bombay High Court has, however, taken a different view and has held that gross negligence, apart from fraud or collusion on the part of the next friend or guardian ad litem or a minor litigant, cannot be made the basis of a suit to set aside a decree obtained against him. (See : Krishnadas Padmanabhrao Chandavarkar v. Vithoba Annappa Shetti [AIR 1939 Bom 67 (FB) : ILR 1939 Bom 340 : 180 IC 51] .) In that case Beaumont, C.J. has disagreed with the earlier decisions of the said High Court on the view that the said decisions were based on a misconception of English law and that under the English law an infant cannot challenge a decree properly passed against him on the ground that his guardian ad litem was guilty of gross negligence in suffering the decree, and if that is so, there was no reason why such a cause of action should lie in British India. Meredith, J., in Kamakshya Narain Singh Bahadur v. Baldeo Sahai [AIR 1950 Pat 97 : ILR 27 Pat 441] has dealt with the English law on the subject and has pointed out that Beaumont, C.J. in Krishnadas Padmanabhrao Chandavarkar v. Vithoba Annappa Shetti [AIR 1939 Bom 67 (FB) : ILR 1939 Bom 340 : 180 IC 51] was not right in his appreciation of the English law on the subject. According to the learned Judge (Meredith, J.) the substantive right of an infant, on attaining majority, to avoid a decree obtained against him owing to the gross negligence of his next friend was undoubtedly recognised in England from early times. The Privy Council in Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao [AIR 1937 PC 1, 4 : (1937) 1 MLJ 113] has also pointed out that protection of minors against the neglect actings of their guardians is a special one. In the instant case, the High Court has proceeded on the basis that it is permissible for a minor to file a suit to set aside a decree on the ground of gross negligence on the part of his next friend. We are in agreement with the said view.
14. The question for consideration is whether, apart from filing a separate suit for setting aside a decree on the ground of gross negligence on the part of his next friend, it is permissible for a minor to avoid a decree, if relied upon in a subsequent proceeding, on the ground that the said decree was obtained on account of gross negligence on the part of his next friend in the previous suit. This would be permissible only if Section 44 of the Evidence Act can be invoked. As pointed out earlier, the Privy Council in Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao [AIR 1937 PC 1, 4 : (1937) 1 MLJ 113] has laid down that Section 44 of the Evidence Act cannot be extended to cases of gross negligence. But in the said case the Privy Council has observed that the Court cannot treat negligence, or gross negligence, as fraud or collusion, unless fraud or collusion is the proper inference from the facts. In other words, in cases where an inference of fraud or collusion can be drawn from the negligence or gross negligence of the next friend it would be permissible for a minor to avoid the judgment or decree passed in the earlier proceeding by invoking Section 44 of the Evidence Act without taking resort to a separate suit for setting aside the decree or judgment.
15. In the present case, the consolidation authorities have found gross negligence on the part of Smt Budhna, the next friend of the appellant, in prosecuting the earlier declaratory suit filed by her in the name of the appellant inasmuch as Smt Nanki, the mother of the appellant, was not examined as a witness and material documents were not produced although the said evidence was available. The question is whether an inference of fraud or collusion can be drawn from the said negligence on the part of Smt Budhna, the next friend of the appellant. The Deputy Director (Consolidation) did not examine the case from this aspect. He has proceeded on the basis that gross negligence on the part of the next friend of the appellant entitles him to avoid the decree passed in the earlier declaratory suit. The High Court has set aside the said order of the Deputy Director (Consolidation) on the view that a decree obtained against a minor due to negligence of the guardian is not void but voidable and the decree passed in the earlier declaratory suit was binding unless it was avoided by filing a suit in an appropriate court and that the consolidation authorities were not competent to grant the declaration of adjudication on validity or otherwise of the decree. The High Court has taken note of the provisions contained in Section 44 of the Evidence Act but has held that the same were not of any assistance to the appellant. In taking the said view the High Court, with respect, has failed to note that if a judgment falls within the ambit of Section 44 of the Evidence Act it can be avoided in the proceedings in which it is sought to be relied upon and it is not necessary to have it set aside by instituting independent proceedings in a competent court. What was required to be considered was whether the judgment in the earlier declaratory suit fell within the ambit of Section 44 of the Evidence Act and for that purpose it was necessary to examine whether an inference of fraud or collusion could be drawn from the gross negligence on the part of Smt Budhna, the next friend of the appellant, in conducting the earlier declaratory suit. Since the matter has not been examined from this aspect, we consider it appropriate that the matter be remitted to the Deputy Director (Consolidation) for considering whether in view of the finding recorded by him there was gross negligence on the part of Smt Budhna in prosecuting the earlier declaratory suit filed, an inference of fraud or collusion can be drawn so as to attract the provisions of Section 44 of the Evidence Act. If he finds that such an inference can be drawn he would not be bound by the judgment in the earlier declaratory suit but if he finds that such an inference cannot be drawn he would be bound by the said judgment till it is set aside by the competent court in an appropriate proceeding.
(emphasis supplied)
76. The Apex Court in the case of Ramesh B.Desai and others vs. Bipin Vadilal Mehta and others (2006)5 SCC 638 has held that Order 6 Rule 4 CPC requires that complete particulars of fraud shall be stated in the pleadings. It was further held that particulars of alleged fraud, which are required to be stated in the plaint, will depend upon the facts of each particular case and no abstract principle can be laid down in this regard.
77. The Apex Court in the case of Asharfi Lal(supra) has held that if the earlier judgment against the minor falls within the ambit of section 44 of the Evidence Act, then it can be avoided in the proceedings in which it is sought to be relied upon and it is not necessary to have it set aside by instituting independent proceedings in a competent court. According to the Apex Court, what is required to be considered is whether the judgment in the earlier declaratory suit fell within the ambit of section 44, of the Evidence Act and for that purpose it was necessary to examine whether an inference of fraud or collusion could be drawn from the gross negligence on the part of next friend of the minor, in conducting the earlier declaratory suit. It was further held that if, an inference of fraud or collusion can be drawn, then the minor is not bound by the judgment in the earlier declaratory suit but if, such inference cannot be drawn, then the minor is bound by the said judgment till it is set-aside by the competent court in an appropriate proceeding.
78. From the perusal of the written statement of defendant no.1&2 in O.S. no.129 of 2005, it appears that they pleaded that, the family partition that took place in the year 1980 among the heirs of late Sardari Lal Chhabra, was a sham transaction. According to the defendants, the partition never took place. The defendants pleaded that the decree in O.S. no. 28 of 1996 was not binding on the minor defendant Rishav Chhabra. It was further averred that the disputed house was purchased by Vinay Chhabra through his father, in the year 1965, through registered sale deed and its possession was also taken. It was accepted that Vinay Chhabra was minor at that time and after his death, his wife and son, became the owners in possession of the disputed house. It was further pleaded that in O.S. no. 28 of 1996 title of plaintiff Mangal Sen Chhabra could not have been decided.
79. It is apparent from the above pleadings of the defendants in their written statement that no specific pleading has been made as to how the decree in O.S. no. 28 of 1996 was fraudulent and collusive. It has nowhere been pleaded in what manner fraud was practised by the plaintiff Mangal Sen Chhabra upon the defendants and how the guardian ad litem appointed by the court neglected in protecting the interest of the minor defendant Rishav Chhabra. There is no pleading to the effect that the guardian ad litem appointed by the court in that case, was in collusion with the plaintiff Mangal Sen Chhabra. It is clear that, in the absence of specific pleading of fraud and collusion, the trial court could not have examined these issues while deciding the suit.
80. It is also apparent that the minor defendant Rishav Chhabra, on attaining majority, had indeed challenged the ex-parte decree dated 31.3.1999 in O.S. no. 28 of 1996 by filing O.S. no. 301 of 2006 Rishav Chhabra versus Mangal Sen Chhabraand 6 others, which was dismissed for non-prosecution by the court of Additional Civil Judge(Senior Division) Court no.1, Jhansi vide order dated 7.12.2015 as such, Rishav Chhabra is precluded from challenging the validity of the ex-parte decree dated 31.3.1999 in O.S. no. 28 of 1996, at this stage.
81. It is apparent that even on merits, the ex-parte decree dated 31.3.1999 in O.S. no. 28 of 1996 cannot be challenged on the ground, that it was a fraudulent and collusive decree, in which the interest of the minor defendant Rishav Chhabra was not properly protected. Certainly, the trial court erred in concluding that the decree in O.S.no. 28 of 1996 was not binding on the minor defendant Rishav Chhabra and his mother Smt.Savita Chhabra.
Admission of Vinay Chhabra in affidavit filed in P.A. case no. 65 of 1986 Mangal Sen Chhabra versus Smt. H. William before the court of Prescribed Authority, Jhansi.
82. The plaintiff filed the certified copy of the above affidavit of Vinay Chhabra in the trial court which was disbelieved by the trial court on the ground that, the affidavit was itself not believed in that eviction proceeding by the Prescribed Authority, as such, it has got no evidentiary value and cannot be relied in this case also. The trial court further concluded that the plaintiff should have filed the original affidavit as such, the certified copy of the affidavit was held inadmissible in evidence. The trial court further concluded that in the affidavit there is no mention of house number of Vinay Chhabra.
83. The above mentioned affidavit dated 16.12.1986 of Vinay Chhabra, reads as under(translated in English, from Hindi):-
'House no. 329, Jhokan Bagh, Civil Line, Jhansi, was registered in my name, the photo copy of which I'm filing. In partition, this house came to the share of my brother Mangal Sen Chhabra, in which, I have no concern or right. The full owner of the house is Mangal Sen Chhabra, who is also entitled to collect the rent. The opposite party used to pay rent to him(Mangal Sen Chhabra) and in his name(Mangal Sen Chhabra) rent was deposited in the court. Mangal Sen Chhabra is in dire need of the house. I have read the affidavit of Mangal Sen Chhabra, in which the facts have been correctly mentioned. For the sake of brevity, I'm not repeating the facts mentioned in the affidavit of Mangal Sen Chhabra. The contents of the affidavit of Mangal Sen Chhabra, be deemed part of my affidavit.''
84. It is apparent that Vinay Chhabra mentioned the number of the disputed house in his affidavit, as 329 Jhokan Bagh, Civil Lines, Jhansi, but still, the trial court has recorded a perverse finding that in the affidavit, the number of the house is not mentioned. The trial court went further, by concluding that since the original copy of the affidavit was not filed, the certified copy of the affidavit is inadmissible, which is also a perverse finding, against all settled principles of law. It is evident that the original affidavit was available in the file of P.A. Case no.65 of 1986 and as such, only a certified copy of the above document could have been filed by the plaintiff in the instant suit.
85. The above affidavit of Vinay Chhabra and also the fact, that partition that took place in the month of January 1980, was never challenged by the 7 sons of late Sardari Lal Chhabra, during their lifetime, itself proves that the partition indeed took place between the sons of late Sardari Lal Chhabra, which was accepted and acted upon by the parties to the partition, who occupied the property, which came to their respective shares. It is also apparent that Vinay Chhabra died on 24.11.1987 and after his death, his legal heirs, his wife Smt. Savita Chhabra and minor son Rishav Chhabra had challenged the above partition for the first time, which lacked substance.
Case no.115 of 1990 under Guardian and Wards Act, 1890 filed by Smt. Savita Chhabra against Ramjeet Chhabra
86. The above fact was also affirmed from the certified copy of plaint in case no. 115 of 1990 Smt. Savita Chhabra versus Ramjeet Chhabra, filed by the plaintiff in the trial court. This case was filed by Smt. Savita Chhabra under section 39 of the Guardian and Wards Act, 1890 for the relief that the opposite party Ramjeet Chhabra be removed as guardian of the property of minor Rishav Chhabra and in his place, the applicant Savita Chhabra, who is the natural mother of the minor, be appointed as guardian of the person and property of the minor Rishav Chhabra. This application was filed on 23.4.1990 in the court of District Judge Jhansi, in which the applicant Smt. Savita Chhabra had disclosed the properties left behind by her husband late Vinay Chhabra, in which the disputed house no. 329, Jhokan Bagh, civil lines, Jhansi was not mentioned. This fact proves that the disputed house never fell to the share of Vinay Chhabra after partition but, the contents of this application were disbelieved by the trial court on the ground that the minor was shown to be the partner in the properties, which implies that no partition took place till 1990.
87. The relevant paragraph 5 of the above application reads as under:-
''5.That late Sri Vinay Chhabra who left minor son, who is at this time, three years old, and had left the following property:-
(a) Minor Rishav Chhabra is partner in Chhabra Transport Service in Kanpur.
(b) Minor is a partner at M/S Prakash Guest House, Jhansi.
(c) Minor is a partner of house no. 360, civil lines ,Jhansi.
(d) Minor is a partner of bus no. UHH 979.
(e) Minor is a partner by way of succession of agriculture land situated at Tahsil Niwari, District Tikamgarh cost of land is ₹ 5 lakhs and the land is situated in Kanpur.''
88. It is apparent that the above application was filed for appointing Smt. Savita Chhabra, as the natural guardian of the person and property of her minor son Rishav Chhabra on the ground that her husband Vinay Chhabra, had left behind the above-mentioned properties upon his death. The trial court believed the version of the defendants that the disputed house was not included in the above properties because it was the individual property of Vinay Chhabra, and only properties of joint Hindu family were mentioned in the application. It is apparent that on the death of Vinay Chhabra, his wife Smt. Savita Chhabra and son Rishav Chhabra became his legal heirs, on whom the property of Vinay Chhabra devolved as per Hindu Succession Act. Since, in the above mentioned properties, the disputed house no. 329, Jhokan Bagh, civil lines, Jhansi is not mentioned, it amounts to an admission that Vinay Chhabra had no right title and interest in the above disputed property, which is now the subject matter of the dispute. Even if, the disputed property was not the property of joint Hindu family, and was the individual property of Vinay Chhabra, even then, upon the death of Vinay Chhabra, the property would have devolved on his legal heirs, as such, if Vinay Chhabra was the owner of the disputed property at the time of his death on 24.11.1987, then the details of that property ought to have been mentioned in the above referred application. These facts amply prove that till the year 1990, the legal heirs of Vinay Chhabra were not claiming themselves to be the owners of the disputed bungalow no. 329, Jhokan Bagh, civil lines, Jhansi, which fortifies the plaintiffs case that Vinay Chhabra had himself submitted an affidavit in the above P.A.case no. 65 of 1986 on 16.12.1986, before the court of Prescribed Authority, in which he had admitted that the disputed property belonged to his brother Mangal Sen Chhabra.
Whether the disputed property was the property of the joint Hindu family of late Sardari Lal Chhabra and it was purchased benami in the year 1965 in the name of minor Vinay Chhabra?
89. The trial court has recorded a finding that the disputed property was not the joint Hindu family property of late Sardari Lal Chhabra and further the plaintiff failed to prove that family partition took place in the year 1980.
90. The certified copy of registered sale deed dated 12.1.1965, by which, the disputed property was purchased in the name of Vinay Kumar, minor son of Sardari Lal Chhabra, for a consideration of ₹ 8,000/- is on record.
91. The plaintiff Rajesh Chhabra PW-1 in his examination-in-chief proved the plaint averments. In his cross-examination, he admitted that when the disputed house was purchased in the name of Vinay Chhabra, he was not born. Vinay Chhabra had solemnised marriage in the year 1985. In the year 1980, he was about eight years old. The family partition among the sons of Sardari Lal was effected in the year 1980. It was an oral partition, which was not reduced into writing, it was among the seven brothers. In the family partition of 1980, Ramjeet Chhabra, Om Chhabra, Kishan Chhabra and Vinay Chhabra got Prakash Regency building, which was previously Jawla bank building. Balram and Vijay Chhabra got bungalow no. 330, Jhokan Bagh, Jhansi and his father,got the disputed bungalow no. 329,Jhokan Bagh. Jhansi. He does not remember the date and month, when family partition took place in the year 1980. He does not know whether the information of partition that took place in the year 1980 was published in the newspaper or not, whether the information of partition was given to the Nagarpalika or not, he does not know whether on the basis of partition, the ownership of disputed house in the record of Nagarpalika, was mutated in the name of his father or not. He does not remember whether water tax and house tax was paid by his father or not, he does not know whether the name of other brothers are recorded in the Nagar Palika or not. He deposed that since there was no inter-se dispute, as such, there was no necessity of fulfilling all the above requirements. He further deposed that he became aware of the partition, from his elders.
92. Mangal Sen Chhabra examined himself as PW-2 in the trial court. He deposed in his examination-in-chief that his father Sardari Lal had purchased house no. 329,Jhokan Bagh, civil lines, Jhansi in the name of his minor son Vinay Chhabra in the year 1965, who died on 24.11.1987. He further deposed that the disputed house came to his share, on partition. Thereafter, in partition between him and his son Rajesh Chhabra, the disputed house came to the share of Rajesh Chhabra. Initially, Smt. H. William and Morris William became his tenant, thereafter, they became Rajesh Chhabra's tenant. He deposed that O.S. no.28 of 1996, which was decided on 31.3.1999, was between the brothers and Smt. Savita Chhabra and Rishav Chhabra had no concern with the disputed house.
93. Mangal Sen Chhabra PW-2 deposed in cross-examination that an oral family partition took place in January, 1980 between him and his six brothers, which was not reduced into writing, which was decided by a case. His father purchased house no. 330 Jhokan Bagh in favour of minor Balram and himself, in the year 196465, which came to the share of Balram and Vinay Chhabra. The disputed house came to his share. His brother Ram, Kishan, Shyam and Vinay got house no. 360 and land adjoining house no. 330. At the time of partition, his parents were not alive. His father died on 5.8.1973 and mother died in the year 1979. His father had married twice. From the first wife, a son and a daughter were born, who are alive, who were partitioned wayback in the year 1962. He has no sister. On the basis of partition, none was mutated in the year 1980 in the records of Nagar Palika. When it happened subsequently, he does not remember. He had filed P.A. case no. 65 of 1986 against Smt. H. William for eviction of house on the ground that, he received that house in partition. In that case, a writ was filed in the High Court by Smt. H. William, in which his case was dismissed. He does not remember whether the writ was dismissed either because the partition was not accepted or he was also not accepted landlord. The partition was confirmed in O.S. no. 28 of 1996 Mangal Sen Chhabra versus Ramjeet Chhabra. Partition between him and his son Rajesh, took place in November 1995, which was published in the newspaper and also case no. 539 of 2000 was filed. After the partition in year 1995, name of Rajesh had been mutated in the record of Nagarpalika. He denied the suggestion that family partition did not take place in the year 1995.
94. The defendant Sanjay Agarwal examined himself as DW-1 in the trial court. In the examination-in-chief he proved the case of the defendants. He deposed that the defendants are not bound by the judgment passed by the court of Civil Judge (Junior Division), Jhansi in O.S. no. 539 of 2000 Mangal Sen Chhabra versus Rajesh Chhabra because the defendants were not the parties in that suit. He further deposed that the plaintiff and Mangal Sen Chhabra had filed SCC case no. 118 of 1996 Rajesh Chhabra and another versus Samson William and others in the court of JSCC Jhansi, for eviction of tenants from disputed house, which was dismissed on 16.8.2003 because the plaintiff was not held to be the landlord of the disputed house. He further deposed that the plaintiff had filed against the defendants no.4 & 5, P.A. case no.8 of 2002 Rajesh Chhabra versus Samson William and others under section 21 of UP Act no. 13 of 1972, which was dismissed by the court of Prescribed Authority/JSCC, Jhansi and in that case also, the plaintiff was not held to be the landlord of the disputed house. He further deposed that all the sale deeds executed by defendant no.2 and 3 in favour of defendants no.1,6 to 8 are valid. He proved the receipts of house tax, electricity bill,etc.
95. DW-1 deposed in cross-examination that he was born on 19.8.1965. He does not know about partition between the heirs of Sardari Lal. He does not know anything about O.S. no. 28 of 1996. Sale deed dated 12.1.1965 was not executed in his presence. He admitted that on 12.1.1965 Vinay Chhabra was minor. He does not know whether at the time of the purchase of the property, Vinay Chhabra was working or not. He made no effort to know what Vinay Chhabra did and from where the property was purchased. He denied that the property was not purchased from the funds of Vinay Chhabra. He had no knowledge about the judgment in O.S. no. 28 of 1996.
96. The Apex Court in the case of Pushpalata versus Vijay Kumar(dead) through Lrs. and others 2022 SCC OnLine SC 1152, while discussing law on holding particular transaction as benami , held as under:-
22. The court's approach in cases, where the claim is that a property or set of properties, are benami, was outlined, after considering previous precedents, in Binapani Paul v. Pratima Ghosh(2007)6 SCC 100, where this court cited with approval extracts from Valliammal v. Subramaniam(2004)7 SCC 233:
47. Burden of proof as regards the benami nature of transaction was also on the respondent. This aspect of the matter has been considered by this Court in Valliammal (D) By LRS. v. Subramaniam(supra) wherein a Division Bench of this Court held:
13. This Court in a number of judgments has held that it is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises, as a substitute for proof.Refer to Jaydayal Poddar v. Bibi Hazra [(1974) 1 SCC 3], Krishnanand Agnihotri v. State of M.P. [(1977) 1 SCC 816 : 1977 SCC (Cri) 190], Thakur Bhim Singh v. Thakur Kan Singh [(1980) 3 SCC 72], Pratap Singh v. Sarojini Devi [1994 Supp (1) SCC 734] and Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah [(1996) 4 SCC 490]. It has been held in the judgments referred to above that the question whether a particular sale is a benami or not, is largely one of fact, and for determining the question no absolute formulas or acid test, uniformly applicable in all situations can be laid. After saying so, this Court spelt out the following six circumstances which can be taken as a guide to determine the nature of the transaction:
(1) the source from which the purchase money came;
(2) the nature and possession of the property, after the purchase;
(3) motive, if any, for giving the transaction a benami colour;
(4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar;
(5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale. (Jaydayal Poddar v. Bibi Hazra [(1974) 1 SCC 3], SCC p. 7, para 6)
14. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another. We would examine the present transaction on the touchstone of the above two indicia.
*** *** ***
18. It is well settled that intention of the parties is the essence of the benami transaction and the money must have been provided by the party invoking the doctrine of benami. The evidence shows clearly that the original plaintiff did not have any justification for purchasing the property in the name of Ramayee Ammal. The reason given by him is not at all acceptable. The source of money is not at all traceable to the plaintiff. No person named in the plaint or anyone else was examined as a witness. The failure of the plaintiff to examine the relevant witnesses completely demolishes his case.
97. From the perusal of the sale deed dated 12.1.1965 it is evident that the property was purchased in the name of minor Vinay Chhabra, for a consideration of ₹ 8,000/-. At that time, Vinay Chhabra was minor, having no independent source of income, as such, the whole consideration was paid by his father Sardari Lal Chhabra. Vinay Chhabra at that time, was under the guardianship of his father Sardari Lal. The possession of the property and the custody of the title deeds, also remained with Sardari Lal. After the sale, the property was treated, as property of the joint Hindu family, which was orally partitioned along with other properties of the joint family in the year 1980, after the death of Sardari Lal in the year 1973. Mangal Sen Chhabra PW-2 proved that after the death of Sardari Lal Chhabra, joint family properties, were orally partitioned among the seven sons of Sardari Lal Chhabra in the year 1980, and the disputed bungalow no. 329 came to his share and possession. When the above facts are appreciated in the light of the above law laid down by the Apex Court in the case of Pushpalata(supra), they convincingly prove that Vinay Chhabra was the benami owner of the disputed property, the real owner being Sardari Lal Chhabra.
98. Since the partition was oral, which was not reduced into writing as such, there is no documentary evidence of partition but, as previously discussed, even Vinay Chhabra had given affidavit in P.A. case No. 65 of 1986, Mangal Sen Chhabra versus Smt. H. William accepting that in the family partition, the disputed house no. 329 was given to Mangal Sen Chhabra and he had no concern with that house. It is also apparent that Vinay Chhabra remained alive till 24.11.1987 and till then, he never disputed the family partition, the dispute only arose after his death, when his legal heirs Smt. Savita Chhabra and Rishav Chhabra refused to accept the family partition.
99. It is also apparent that in O.S. no. 28 of 1996, the plea of joint Hindu family property was raised by the plaintiff Mangal Sen Chhabra, who also pleaded that after the death of his father Sardari Lal Chhabra, the properties of joint Hindu family were orally partitioned among the seven sons of late Sardari Lal Chhabra in the month of January, 1980 and in this partition, the disputed bungalow no. 329 came to the share of plaintiff Mangal Sen Chhabra. As previously discussed, the trial court in O.S. no. 28 of 1996 accepted the above pleadings of the plaintiff Mangal Sen Chhabra and decreed the suit ex-parte on 31.3.1999, which has attained finality and operates as res-judicata between the parties, because the title and possession of the disputed bungalow no. 329 was directly in issue in that suit. In view of the above, the trial court erred in concluding that the disputed property was not the property of the joint Hindu family of late Sardari Lal Chhabra, which was also not partitioned in the year 1980. The above finding recorded by the trial court is wholly perverse and arbitrary.
Whether the ex-parte decree dated 31.3.1999 in O.S. no. 28 of 1996 required registration?
100. The trial court concluded that the ex-parte decree dated 31.3.1999 in O.S. no. 28 of 1996 required registration, because there was no pre-existing right of the plaintiff Mangal Sen Chhabra in the disputed property.
101. The Apex Court in the case of Mohammade Yusuf and others vs. Raj Kumar and others(2020)10 SCC 264 has held that where the compromise decree comprising immovable property was with regard to the property, which was the subject matter of the suit, then it does not require registration. It was held as under:-
7. A compromise decree passed by a court would ordinarily be covered by Section 17(1)(b) but sub-section (2) of Section 17 provides for an exception for any decree or order of a court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding. Thus, by virtue of sub-section (2)(vi) of Section 17 any decree or order of a court does not require registration. In sub-clause (vi) of sub-section (2), one category is excepted from sub-clause (vi) i.e. a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding. Thus, by conjointly reading Section 17(1)(b) and Section 17(2)(vi), it is clear that a compromise decree comprising immovable property other than which is the subject-matter of the suit or proceeding requires registration, although any decree or order of a court is exempted from registration by virtue of Section 17(2)(vi). A copy of the decree passed in Suit No. 250-A of 1984 has been brought on record as Annexure P-2, which indicates that decree dated 4-10-1985 was passed by the Court for the property, which was subject-matter of the suit. Thus, the exclusionary clause in Section 17(2)(vi) is not applicable and the compromise decree dated 4-10-1985 was not required to be registered on plain reading of Section 17(2)(vi). The High Court referred to the judgment of this Court in Bhoop Singh v. Ram Singh [Bhoop Singh v. Ram Singh, (1995) 5 SCC 709] , in which case, the provision of Section 17(2)(vi) of the Registration Act came for consideration. This Court in the above case while considering clause (vi) laid down the following in paras 16, 17 and 18: (SCC pp. 715-16)
16. We have to view the reach of clause (vi), which is an exception to sub-section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs 100 or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order.
17. It would, therefore, be the duty of the court to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of Rs 100 or upwards in favour of other party for the first time, either by compromise or pretended consent. If latter be the position, the document is compulsorily registrable.
18. The legal position qua clause (vi) can, on the basis of the aforesaid discussion, be summarised as below:
(1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration.
(2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs 100 or upwards in favour of any party to the suit the decree or order would require registration.
(3) If the decree were not to attract any of the clauses of sub-section (1) of Section 17, as was the position in the aforesaid Privy Council [Ed.: The reference is to Hemanta Kumari Debi v. Midnapur Zamindari Co. Ltd., 1919 SCC OnLine PC 41 : (1918-19) 46 IA 240] and this Court's cases [Ed.: The reference is to Mangan Lal Deoshi v. Mohd. Moinul Haque, 1950 SCC 760 : AIR 1951 SC 11; Bishundeo Narain v. Seogeni Rai, 1951 SCC 447 : AIR 1951 SC 280 and Shankar Sitaram Sontakke v. Balkrishna Sitaram Sontakke, AIR 1954 SC 352] , it is apparent that the decree would not require registration.
(4) If the decree were not to embody the terms of compromise, as was the position in Lahore case [Fazal Rasul Khan v. Mohd-ul-Nisa, 1943 SCC OnLine Lah 128 : AIR 1944 Lah 394] , benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of the compromise in question.
(5) If the property dealt with by the decree be not the subject-matter of the suit or proceeding, clause (vi) of sub-section (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated.
15. This Court in Som Dev v. Rati Ram [Som Dev v. Rati Ram, (2006) 10 SCC 788] while explaining Section 17(2)(vi) and Sections 17(1)(b) and (c) held that all decrees and orders of the Court including compromise decree subject to the exception as referred that the properties that are outside the subject-matter of the suit do not require registration. In para 18, this Court laid down the following: (SCC p. 800)
18. But with respect, it must be pointed out that a decree or order of a court does not require registration if it is not based on a compromise on the ground that clauses (b) and (c) of Section 17 of the Registration Act are attracted. Even a decree on a compromise does not require registration if it does not take in property that is not the subject-matter of the suit............
102. It is apparent from the discussion made here-in-before, that Mangal Sen Chhabra was having pre-existing right in the joint Hindu family property, left behind by late Sardari Lal Chhabra, being one of his heirs, regarding which an oral partition took place between the seven sons of late Sardari Lal Chhabra in the month of January 1980, in which, the disputed house no. 329, Jhokan Bagh, civil lines, Jhansi, came to the share of Mangal Sen Chhabra, regarding which declaration of ownership and possession was sought from the court by filing O.S. no. 28 of 1996 which was decreed ex-parte by the court on 31.3.1999. It is apparent that, Mangal Sen Chhabra was having pre-existing ownership and possession of the disputed house, as such, no new ownership right in the disputed property was conferred by the court in Mangal Sen Chhabra by the ex-parte decree dated 31.3.1999, in declaring him to be the owner in possession of the disputed property, as such, in accordance with the law laid down by the Apex Court in the case of Mohammade Yusuf(supra) the ex-parte decree was not required to be registered, in accordance with the provisions of Registration Act. Clearly, the trial court erred in concluding that the ex-parte decree in O.S. no. 28 of 1996 required registration since, it created new rights in the disputed property in favour of plaintiff Mangal Sen Chhabra.
Whether Smt. H. William was tenant in the disputed property and after her death, her sons defendant no.4 Samson William and defendant no.5 Morris William inherited tenancy?
103. It is apparent that in the suit itself the plaintiff has averred that when the disputed house was purchased by Sardari Lal Chhabra in the name of Vinay Chhabra in the year 1965, then at that time Smt. H. William, the mother of defendant no.4 and 5 was a tenant in that house, who died subsequently, and thereafter, defendant no.4 and 5 inherited the tenancy in the disputed house.
104. The defendants in the written statement accepted that Smt. H. William was a tenant in the disputed house, and for her eviction, the plaintiffs father Mangal Sen Chhabra filed P.A.case no. 65 of 1986 under section 21 of the UP Act no. 13 of 1972 before the court of Prescribed Authority Jhansi, which was rejected and challenged in appeal by the plaintiffs father, which was allowed by the court of first Additional District Judge Jhansi, against which Smt. H. William had filed Civil Misc.Writ Petition no.2387 of 1990 before the High Court. It was also accepted by the defendants that during the pendency of the Writ Petition,Smt. H. William died, leaving her two sons as her legal heirs. It was also mentioned that the Writ Petition was allowed by the High Court on 31.7.1995, consequently P.A. case no. 65 of 1986 was dismissed and Mangal Sen Chhabra was not held to be the owner and landlord of the disputed house.
105. It was further mentioned by the defendants in their written statement that plaintiffs father Mangal Sen Chhabra had also filed SCC case no.118 of 1996 Mangal Sen Chhabra versus Samson William and Morris William in the court of JSCC, Jhansi for eviction of tenants from the disputed house which was dismissed on 16.8.2003, in which plaintiff and his father were not held to be the owner and landlord of the disputed house, aggrieved against which, SCC Revision No. 67 of 2003 was filed, which was allowed by the court of first Additional District Judge Jhansi vide order dated 23.12.2005, which had also been challenged by filing Writ Petition in the High Court.
106. The defendants have accepted that in the disputed house two sons of Smt. H. William, namely Samson William and Morris William were the tenants in possession, but they never remained the tenants of plaintiff or his father.
107. It was also averred by defendant no.1 & 2 in their written statement, that Rajesh Chhabra had also filed P.A.case no. 8 of 2002 Rajesh Chhabra versus Samson William and another, under section 21 of the UP Act no. 13 of 1972, before the court of Prescribed Authority/JSCC Jhansi,which was pending. This case was subsequently dismissed on merits on 11.5.2007, which was challenged by filing Rent Control Appeal no.22 of 2007 Rajesh Chhabra versus Samson William and others.
108. All these facts, amply prove that in the disputed house,Smt. H. William was the tenant and after her death, her two sons namely, Samson William and Morris William became joint tenants.
Whether the possession of the tenants, amounts to legal possession of the plaintiff, insofar as the disputed house is concerned?
109. From the discussion made herein above, it is apparent that, at present Samson William and Morris William are the tenants in the disputed property. It is also apparent that earlier, plaintiffs father Mangal Sen Chhabra had filed SCC case no. 118 of 1996 and P.A. case no. 65 of 1986 for eviction of tenants under UP Act no. 13 of 1972, which were dismissed. The plaintiff had also filed P.A.case no. 8 of 2002 against the tenants, which was dismissed on 11.5.2007 which was challenged by filing Rent Control Appeal no.22 of 2007 Rajesh Chhabra versus Samson William and others. It is also apparent that against dismissal of SCC case no.118 of 1996 vide judgment and decree dated 16.08.2003, SCC Revision no.67 of 2003 Rajesh Chhabra and Mangal Sen Chhabra versus Samson William and others was filed, which was dismissed on 23.12.2005, but the Revisional Court recorded a finding that the plaintiff and Mangal Sen Chhabra were the owner of the disputed property, which was challenged by Rishav Chhabra in Writ A no.20677 of 2006 Rishav Chhabra and another versus Rajesh Chhabra and others, which was disposed of by this Court on 20.4.2010, by specifically concluding that, in a rent suit any observation or finding with regard to title would not bind the regular civil court. Since, the Rent Control Appeal 22 of 2007 is pending, in which it will be decided whether there was a relationship of landlord and tenant, between the plaintiff and the defendants Samson William and Morris William. Whether the plaintiff or his predecessor are the landlord of the tenants in the disputed house, can neither be given by this Court nor it is the subject matter of the suit or appeal, as such, this Court refrains from expressing any opinion on the relationship of landlord and tenant between the parties.
110. It is apt to mention here that in PA case no. 8 of 2002 Rajesh Chhabra versus Samson William and others, decided by the court of Prescribed Authority/JSCC, Jhansi ,vide judgment and order dated 11.5.2007, the court recorded that according to the written statement of the defendant Rishav Chhabra, the tenants/defendants no.1 & 2 Samson William and Morris William had handed the possession of the disputed house on 19.4.2005 to Rishav Chhabra and Savita Chhabra, because the house had become dilapidated and as such, Samson William and Morris William were not in possession of the disputed house. In that PA case no. 8 of 2002, Rishav Chhabra and Smt. Savita Chhabra had asserted themselves to be the landlords of the above tenants. In these circumstances if, the plaintiff is held to be the landlord of the above tenants, then it will be deemed that plaintiff is in lawful possession of the disputed house no. 329, through his tenants Samson William and Morris William.
111. It is also well settled that the tenants are bound to surrender the possession of the tenanted accommodation to the landlord, who had inducted them into tenancy, even if, some other person is the owner of the tenanted accommodation, unless and until, the landlord and owner are one and the same person.
Whether the court erred in declaring in OS no. 28 of 1996 Mangal Sen Chhabra the owner in possession of the disputed house, because prior to the filing of the suit, in the year 1995 itself, in the alleged family partition between him and his son Rajesh Chhabra, the disputed house had already devolved on his son Rajesh Chhabra?
112. It is mentioned in the judgment dated 31.3.1999 in O.S. no. 28 of 1996 that the plaintiff Mangal Sen Chhabra had pleaded that after the family partition that took place in the month of January 1980 between the sons of late Sardari Lal Chhabra, in which the disputed house came to the share of Mangal Sen Chhabra, another partition took place in the year 1995 between Mangal Sen Chhabra and his son Rajesh Chhabra, in which the disputed house came to the share of his son Rajesh Chhabra.
113. It is apparent that in OS No. 28 of 1996, the plaintiff Mangal Sen Chhabra sought declaration of ownership of the disputed house on the basis of family partition that took place in January 1980, between the heirs of late Sardari Lal Chhabra. The plaintiff had only sought declaration regarding the above ownership. It is immaterial that, in subsequent family partition, which took place in the year 1995, the plaintiff Mangal Sen Chhabra was divested from the ownership of the disputed house. It is also apparent that the plaintiff Mangal Sen Chhabra had neither claimed any declaration regarding the subsequent partition that took place in the year 1995 between him and his son Rajesh Chhabra, nor any finding, regarding this, had been recorded by the court. The subsequent family partition that took place in the year 1995, was not in issue, in the suit. In view of the above facts, even if, a family partition took place between Mangal Sen Chhabra and his son Rajesh Chhabra in the year 1995, even then, the ex-parte decree dated 31.3.1999 in O.S. no. 28 of 1996, is binding on the parties, which cannot be challenged on this ground.
Whether the plaintiff 's suit is barred by section 34, 38 and 41(h) of the Specific Relief Act?
114. The trial court concluded that since the plaintiff was not in possession of the disputed house, as such, he should have claimed the relief of possession, which he had not, as such, it was held that the plaintiff 's suit was barred by section 34 and 41(h) of the Specific Relief Act. It was further held that since the plaintiff claimed the relief of permanent injunction, who was not in possession, as such, the plaintiff cannot be granted this relief, in view of section 38 of the Specific Relief Act.
115. The Apex Court in the case of Anathula Sudhakar vs. P. Buchi Reddy(Dead) by Lrs. and others (2008)4 SCC 594, while discussing the general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and /or possession with injunction as a consequential relief, held as under:-
13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiff's title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
15. In a suit for permanent injunction to restrain the defendant from interfering with the plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and the defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
16. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.
(emphasis supplied)
116. It is apparent from the discussion made here-in-before, that previously Mangal Sen Chhabra and subsequently, the plaintiff is the true owner of the disputed house no. 329, Jhokan Bagh, civil lines, Jhansi. It is also apparent that regarding eviction of tenants from the disputed house, Rent Control Appeal no.22 of 2007 is pending. It is also apparent that tenants Samson William and Morris William are residing in the property, who have allegedly handed over the vacant possession of tenanted accommodation to the defendants Smt. Savita Chhabra and Rishav Chhabra, who are not the true owner's of the disputed house. The tenants were bound to handover the vacant possession of the tenanted accommodation to their landlord or true owner of the disputed house. In such circumstances, it will be deemed that the plaintiff is in lawful possession of the disputed house, through tenants, who is entitled to the relief of permanent injunction against the defendants. In these circumstances, the trial court erred in concluding that the plaintiff 's suit was barred by section 34, 38 and 41(h) of the Specific Relief Act.
117. The learned counsel for the respondents submitted that since the plaintiff was not in possession of the disputed house, as such, the suit was barred by section 34 of the Specific Relief Act, because the consequential relief of possession was not claimed by the plaintiff. To buttress his argument, the learned counsel has placed reliance on the law laid down by the Apex Court in the following cases:-
(1)Venkataraja & others versus Vidyane Doureradjaperumal (2014) 14 SCC 502 (2)Vasantha(Dead) through LR versus Rajalakshmi@ Rajam(Dead) through Lrs 2024 INSC 109 (3)Mallavva and another versus Kalsammanavara Kalamma(Since Dead) by Lrs and others 2024 INSC 1021 (4)Rajeev Gupta and others versus Prashant Garg and others 2025 INSC 552
118. I have gone through the above case law submitted by the learned counsel for the respondents. There is no quarrel with the proposition of the law laid down by the Apex Court in the above judgments. It is well settled that where there is a cloud on the title of the plaintiff regarding the disputed property and who is also, not in possession of the disputed property, then in addition to the declaration of his title, he should mandatorily claim possession of the disputed property, and if, the possession of the disputed property is not claimed then, the plaintiff 's suit is barred by section 34 of the Specific Relief Act.
119. The above case law submitted by the learned counsel for the respondents are not applicable to the facts of this case because, the plaintiffs title was never in cloud because he was claiming title under his predecessor Mangal Sen Chhabra, who had already been declared the owner in possession of disputed house no. 329, Jhokan Bagh, civil lines, Jhansi, by declaratory decree dated 31.3.1999 in O.S. no. 28 of 1996, by a competent court of jurisdiction, which had attained finality, as already held by this Court in this judgment here-in-before. It has already been held by this Court in this judgment that the above ex-parte decree operates as res-judicata in this case and consequently, the defendants are restrained from challenging the validity and legality of the ex-parte decree in the instant suits and appeals. In view of the above, the plaintiff was not required to seek declaration of his title regarding the disputed house in the instant suits.
120. Insofar as the ownership of the disputed house is concerned, as discussed by this Court in this judgment here-in-before, the court of Prescribed Authority and JSCC Jhansi, were not competent to give any finding regarding the ownership of the disputed house, and if, such finding has been given, it is illegal. It is also evident that previously, the court of Prescribed Authority and the JSCC, Jhansi had simply not accepted that any partition took place between the heirs of late Sardari Lal Chhabra in the year 1980 and on this ground, it was held that since Mangal Sen Chhabra and Rajesh Chhabra failed to prove the above family partition, as such, they also failed to prove that they are the owner and landlord of the disputed property.It is also well settled in S.K.Sattar Sk. Mohd.Choudhari vs. Gundappa Amabadas Bukate AIR 1997 SC 998, that a tenant cannot challenge the family partition between the owners of the disputed property. Of course, it is open to the tenant to show that the partition was not bona fide and was a sham transaction to overcome the rigours of Rent Control laws which protected eviction of tenants except on specified grounds set out in the relevant statute. It is also evident that, the above finding of the Prescribed Authority and JSCC, Jhansi that family partition of the disputed property is not proved, is in teeth, of the decree in O.S. no. 28 of 1996, which has conclusively declared that the plaintiff 's predecessor Mangal Sen Chhabra, was the owner in possession of the disputed house no. 329, Jhokan Bagh, civil lines, Jhansi, on the basis of the family partition that took place among the heirs of late Sardari Lal Chhabra in the year 1980.
121. It is also apparent that eviction proceedings are pending in different Courts between the plaintiff and the tenant's Samson William and Morris William regarding their eviction from the disputed house under UP Act no. 13 of 1972, as such, as per the law laid down by the Apex Court in the case of Anathula Sudhakar(supra) it will be deemed that the plaintiff is in lawful possession of the disputed house, through tenants. In view of this, there is no necessity for the plaintiff to seek the relief of possession of the disputed house. Clearly, the trial court erred in concluding that the plaintiff 's suit is barred by section 34 of the Specific Relief Act because the plaintiff was not in possession and he had not claimed the relief of possession of the disputed house.
122. The Apex Court in the case of Hussain Ahmed Choudhury & Ors. vs. Habibur Rahman(Dead) through Lrs. & Ors. 2025 SCC Online SC 892, while discussing section 34 of the Specific Relief Act, 1963, held as under:-
25. Having explained the scope of Section 31, we now deem it necessary to examine Section 34 of the Act, 1963, which reads thus:
Section 34. Discretion of court as to declaration of status or right.-
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.-A trustee of property is a person interested to deny a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.
26. Section 34 entitles a person to approach the appropriate court for a declaration, if that person is entitled to (i) any legal character or (ii) any right as to any property. Legal character and right to property are used disjunctively so that either of them, exclusively, may be the basis of a suit. The disjunctive or cannot be read as a conjunctive and.
27. The object of the proviso to Section 34 is to obviate the necessity for multiple suits by preventing a person from getting a mere declaration of right in one suit and then subsequently seeking another remedy without which the declaration granted in the former suit would be rendered otiose. However, the answer to the question whether it was incumbent upon the plaintiff to ask for further relief must depend on the facts of each case and such relief must be appropriate to and consequent upon the right or title asserted. Further relief must be a relief flowing directly or necessarily from the declaration sought, i.e., the relief should not only be capable of being granted but of being enforced by the court and such relief should be necessary to make the declaration fruitful. The relief must also be such that it is not automatically granted to the plaintiff by virtue of the declaration already sought for.
28. The words used in proviso to Section 34 are further relief and no other relief. Since, a further relief must flow necessarily from the relief of declaration, if such further relief is remote and is not connected in any way with the cause of action which has accrued in favour of the plaintiffs, then there is no need to claim a further relief and the proviso to Section 34 will not be a bar. All that the proviso forbids is a suit for pure declaration without necessary relief where the plaintiff being able to seek such a relief, has omitted to do so. The proviso must not be construed in a manner which compels the plaintiff to sue for any and all the reliefs which could possibly be granted to him. The plaintiff must not be debarred from obtaining a relief that he wants for the reason that he has failed to seek a relief which is not directly flowing from the relief of declaration already sought for.
(emphasis supplied)
29. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed under Section 31 of the Act, 1963. But if a non-executant seeks annulment of a deed, he has to only seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence, both may be suing to have the deed set aside or declared as non-binding. [See : Suhrid Singh alias Sardool Singh v. Randhir Singh, reported in (2010) 12 SCC 112] (emphasis supplied)
30. As observed aforesaid, a plaintiff who is not a party to a decree or a document, is not obligated to sue for its cancellation. This is because such an instrument would neither be likely to affect the title of the plaintiff nor be binding on him. We have to our advantage two very old erudite judgments of the Madras High Court and one of the Privy Council on the subject.
(emphasis supplied)
31. In Unni v. Kunchi Amma reported in 1890 SCC OnLine Mad 5, the legal position has been thus explained:
If a person not having authority to execute a deed or having such authority under certain circumstances which did not exist, executes a deed, it is not necessary for persons who are not bound by it, to sue to set it aside for it cannot be used against them. They may treat it as nonexistent and sue for their right as if it did not exist.
32. The same principle has been distinctly laid down by the Privy Council in Bijoy Gopal Mukerji v. Krishna Mahishi Debi, reported in 1907 SCC OnLine PC 1, where the jural basis underlying such transactions was pointed out. In that case, the reversioner sued for a declaration that a lease granted by the widow of the last male owner was not binding on him and also for khas possession. It was objected that the omission to set aside the lease by a suit instituted within the time limit prescribed by Article 91 of the Indian Limitation Act, 1877 was fatal to the suit. The following observations which are equally applicable to the case at hand, are apposite:
A Hindu widow is not a tenant for life, but is owner of her husband's property subject to certain restrictions on alienation and subject to its devolving upon her husband's heirs upon her death. But she may alienate it subject to certain conditions being complied with. Her alienation is not, therefore, absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court, and he shows his election to do the latter by commencing an action to recover possession of the property. There is, in fact, nothing for the Court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir. It is true that the appellants prayed by their plaint for a declaration that the ijara was inoperative as against them, as leading up to their prayer for delivery to them of khas possession. But it was not necessary for them to do so, and they might have merely claimed possession, leaving it to the defendants to plead and (if they could) prove the circumstances, which they relied on, for showing that the ijara of any derivative dealings with the property were not in fact voidable, but were binding on the reversionary heirs.
33. In fact, it is logically impossible for a person who is not a party to a document or to a decree to ask for its cancellation. This is clearly explained by Wadsworth, J., in the decision rendered in Vellayya Konar (Died) v. Ramaswami Konar, reported in 1939 SCC OnLine Mad 149, thus:
When, the plaintiff seeks to establish a title in himself and cannot establish that title without removing an insuperable obstruction such as a decree to which he has been a party or a deed to which he has been a party, then quite clearly he must get that decree or deed cancelled or declared void in toto, and his suit is in substance a suit for the cancellation of the decree or deed even though it be framed as a suit for declaration. But when he is seeking to establish a title and finds himself threatened by a decree or a transaction between third parties, he Is not in a position to get that decree or that deed cancelled in toto. That is a thing which can only be done by parties to the decree or deed or their representatives. His proper remedy therefore in order to clear the way with a view to establish his title, is to get a declaration that the decree or deed is invalid so far as he himself is concerned and he must therefore sue for such a declaration and not for the cancellation of the decree or deed.
34. Therefore, filing a suit for cancellation of a sale deed and seeking a declaration that a particular document is inoperative as against the plaintiff are two distinct, separate suits. The plaintiff in the present case, not being the executant of the sale deed dated 05.05.1997 executed in favour of the respondent no. 1 (original defendant no. 14), was therefore, not obligated to sue for its cancellation under Section 31 of the Act, 1963. The question that remains is whether the plaintiff ought to have sought for a declaration that the sale deed dated 05.05.1997 was inoperative in so far as he is concerned or is not binding on him.
35. One should not lose sight of the fact that a suit for declaration of title to be decided by a court takes within its fold, consideration of several factors as to how the plaintiff is entitled for declaration of title. In such cases, the plea of the defendants about the validity, enforceability and binding nature of any document defeating the title of the plaintiff have also to be considered. In such cases, the court naturally views the evidence on both sides leaving apart the frame of the suit.
36. Therefore, the High Court having concurred with the Courts below on the legality and validity of the Gift Deed should not have dismissed the suit only on the ground that the plaintiff failed to pray for cancellation of the sale deed. The High Court should have kept the settled position of law in mind that the declaration of title is as good as a relief of cancellation of the sale deed or at least, a declaration that the sale deed is not binding on the plaintiff being void and thus non est. (emphasis supplied)
37. Furthermore, it is a well-known and settled principle of law that the plaint must be read as a whole and the actual relief sought can also be culled out from the averments of the plaint. Those reliefs can be granted, if there is evidence and circumstances justifying the grant of such relief, though not directly or specifically claimed, or asked as a relief. The plaintiff had averred in his plaint that the original defendant nos. 1 to 6 had no title or saleable rights over the suit property. This reflects the intention of the plaintiff to not be bound by any instrument which they may have executed in favour of another party.
38. Courts have ample inherent powers and indeed it is their duty to shape their declaration in such a way that they may operate to afford the relief which the justice of the case requires. Section 34 of the Act, 1963 is not exhaustive of the cases in which a declaratory decree may be made and the courts have power to grant such a decree independently of the requirements of the Section. Section 34 merely gives statutory recognition to a well-recognised type of declaratory relief and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of courts to give declarations of right in appropriate cases falling outside Section 34. The circumstances in which a declaratory decree under Section 34 should be awarded is a matter of discretion depending upon the facts of each case. [See : Supreme General Films Exchange Ltd. v. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar, reported in (1975) 2 SCC 530]
123. From the above law laid down by the Apex Court in the case of Hussain Ahmed Choudhury(supra) it is evident that where the plaintiff is not an executant of a document, he is not obligated to sue for its cancellation. He is only required to seek a declaration that the document is invalid, or non-est, or illegal or that it is not binding on him. In view of this, in the instant case, the plaintiff was not required to seek cancellation of the agreement to sell or the sale deeds executed by Smt. Savita Chhabra and Rishav Chhabra in favour of other defendants.
To what relief the plaintiff -appellant is entitled to get?
124. From the above discussion, it is apparent that, the plaintiff is the true owner of the disputed house no. 329, Jhokan Bagh, civil lines, Jhansi. The defendants Smt. Savita Chhabra and Rishav Chhabra had no concern with this property, but they had illegally executed several sale deeds on 15.5.2006, which were registered on 20.7.2006, in respect of the above property, in favour of other defendants in the suit, which are void ab-initio, which are not binding on the plaintiff. The plaintiff has claimed that by declaratory decree of the court, the above sale deeds executed by defendants Smt. Savita Chhabra and Rishav Chhabra in favour of other defendants be declared null and void, not binding on the plaintiff and further, the defendants be restrained from interfering, alienating, demolishing, constructing or transferring the disputed property. It is apparent that, the trial court erred in dismissing the plaintiff 's suit for declaration and permanent injunction. Accordingly, both the appeals are liable to be allowed.
125. Accordingly,First Appeal no. 60 of 2011 and 70 of 2011, both the appeals are allowed. The judgment and decree of the trial court dated 9.12.2010 in O.S. no. 129 of 2005 and 365 of 2006 is set aside and both the suits are decreed.
126. The plaintiff is entitled to the following reliefs in O.S. 129 of 2005:-
(i) A declaratory decree is granted in favour of the plaintiff against the defendants that the agreement to sell dated 20.4.2005 executed by defendant no. 2 & 3 in favour of defendant no.1 regarding bungalow no. 329, Jhokan Bagh, Jhansi, the boundaries of which are mentioned at the end of the plaint, which is registered in the office of Sub-Registrar, Jhansi in register no.1, khand-1317, at page no. 239 260, serial no. 3425 on 23.4.2005, is a null and void ab-initio document, which is not binding on the plaintiff. An information to this effect be also sent to the concerned sub-registrar office.
(ii) A decree of permanent injunction is granted in favour of the plaintiff against the defendants, whereby, the defendants are forever restrained from demolishing, transferring, plotting, alienating, damaging, interfering in the peaceful possession of the plaintiff or creating any right whatsoever in bungalow no.329, Jhokan Bagh, Jhansi, the boundaries of which are mentioned at the end of the plaint.
127. The plaintiff is entitled to the following reliefs in O.S. no.365 of 2006 :-
(i) A declaratory decree is granted in favour of the plaintiff against the defendants, that the sale deeds executed by Smt. Savita Chhabra and Rishav Chhabra in favour of defendant no.1 Radhey Lal Jeswani executed on 15.5.2006, which was registered on 20.7.2006 in register no.1, at page no. 169/190, item no. 1609/3868; sale deed executed in favour of defendant no. 2 Sanjay Agarwal which is entered in register no.1, page no.191/212, item no. 1609/3969; sale deed executed in favour of defendant no.3 Smt. Hema Agarwal which is entered in the register no.1, at page no. 75/94, item no. 1609/3863 & sale deed executed in favour of defendant no.4 Sunil Kumar and defendant no.5 Mahendra Kumar which is entered in the register no.1, at page no. 49/74, item no. 1609/3862, all the above sale deeds which are relating to disputed house no. 329, new no.1358, Jhokan Bagh, Jhansi are declared null and void ab-initio, not binding on the plaintiff. An information to this effect be also sent to the concerned sub-registrar office.
(ii) A decree of permanent injunction is granted in favour of the plaintiff against the defendants, whereby, the defendants are forever restrained from interfering in the peaceful possession of the plaintiff and interfering in his rights as landlord, in house no.329, new no.1358, Jhokan Bagh, Jhansi, of which the plaintiff is the owner in possession, on the basis of above null and void ab-initio sale deeds.
128. Both the parties shall bear their respective costs of the appeals. Office is directed to prepare the decree accordingly.
129. Interim order, if any, stands vacated in both the appeals.
130. All interim applications, if pending, stands disposed of.
131. Original trial court record, if received, be sent back, forthwith.
132. This Court appreciates the efforts of Research Associate Mr. Rohit Mishra, in researching the relevant case laws on the controversy involved in this appeal.
Order Date:- 16.09.2025 Jitendra/Himanshu/Mayank (Sandeep Jain, J.)