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[Cites 30, Cited by 0]

Delhi District Court

Sh. Maqsood Ali vs Sh. Parvej Ahmed (Guddu) on 1 July, 2022

 IN THE COURT OF ADJ­07, SOUTH­EAST DISTRICT, SAKET COURTS, DELHI


Presided By: Mr. Jay Thareja, DHJS


Civil Suit No: 636/21


Sh. Maqsood Ali
S/o. Sh. Mardan Ali,
R/o. H.No. 105/65, Basti Hazarat Nizamuddin,
New Delhi­110013.                                                  .....Plaintiff
                                            Versus
1. Sh. Parvej Ahmed (Guddu)
S/o. Sh. Sabban Ahmed,
R/o. H.No. 105/65, Basti Hazarat Nizamuddin,
New Delhi­110013.

2. Sh. Sabban Ahmed
S/o. Sh. Sukhwat Hussain,
R/o. H.No. 105/65, Basti Hazarat Nizamuddin,
New Delhi­110013.

3. Sh. Kamil Faridi
S/o. Sh. Wasi­ud.Din
R/o. H.No. 86, Jamia Nagar,
Batala House, Muaradi Road,
Near Shah Masjid Okhla, New Delhi.

4. Sh. Rais Ahmed,
S/o. Sh. Rafiq Ahmed,
R/o. H.No. 108­A, Basti Hazarat Nizamuddin,
New Delhi­110013                                              .....Defendants

                                   SUIT FOR POSSESSION Etc.

Civil Suit No.636/21
Sh. Maqsood Ali v Sh. Parvej Ahmed & Ors.
Page no. 1 of 30
                                                     DATE OF INSTITUTION : 19.04.2010
                                              DATE OF FINAL ARGUMENTS : 10.05.2022
                                                      DATE OF DECISION : 01.07.2022

                                            JUDGMENT

1. This suit is a rare species. It is the third suit filed by the plaintiff against the defendant no.3, Sh. Kamil Faridi, inter­alia seeking possession of the suit property, which the plaintiff identifies as H. No.105/65, Basti Hazrat Nizamuddin, New Delhi­13, as shown in red colour in the site plan, Ex. PW1/1 and which the defendant no.3 and his alleged successors­in­interest viz. defendants no.1 and 2, identify as H. No.108­A, Basti Hazarat Nizamuddin, New Delhi­13.

FIRST SUIT

2. In the plaint of the first suit1, which was filed by the plaintiff against Smt. Ramo Devi and Sh. Kamil Faridi (defendant no.3 herein), on 22.05.1987, inter­alia seeking possession of the suit property2, the plaintiff had inter­alia pleaded that the plaintiff is filing the said suit as the attorney of Bibi Qamrun Nisha alias Mariam; that Bibi Qamrun Nisha is the owner of the suit property; that Bibi Qamrun Nisha had let out the suit property to Sh. Walter Anthony, husband of Smt. Ramo Devi at a rent of Rs.20/­ per month; that after the death of Sh. Walter Anthony, Smt. Ramo Devi had stepped into the shoes of Sh. Walter Anthony and was permitted to reside at the suit property, by paying rent of Rs.200/­ per month 1 The said plaint has been tendered as Mark F during the cross­examination of PW1 Sh. Maqsood Ali before Ms. Suman Arora, Ld. Advocate/Local Commissioner, on 27.03.2018. Upon being shown the said plaint, PW1 Sh. Maqsood Ali had testified, "I identify the same." 2 The other relief, sought by the plaintiff was of recovery of damages for wrongful and unauthorized use.

Civil Suit No.636/21

Sh. Maqsood Ali v Sh. Parvej Ahmed & Ors.

Page no. 2 of 30 w.e.f. 01.01.1982; that till June 1986, Smt. Ramo Devi had paid the requisite rent to Bibi Qamrun Nisha; that in July 1986, Smt. Ramo Devi had inducted Sh. Kamil Faridi as a guest in the suit property for a short period; that the plaintiff had permitted Smt. Ramo Devi to keep Sh. Kamil Faridi as a guest in the suit property; that in the month of October 1986, when the plaintiff had gone to collect the arrears of rent, the plaintiff had seen that Smt. Ramo Devi and Sh. Kamil Faridi had started doing unauthorized construction at the suit property; that when the plaintiff had questioned the said construction, Sh. Kamil Faridi had started hot talk with the plaintiff and used unwanted and unparliamentary language; that immediately thereafter, the plaintiff had taken some legal measures against Smt. Ramo Devi but since Sh. Kamil Faridi, is a man of influence, no action was taken by the concerned authority; that Sh. Kamil Faridi had openly told the plaintiff that he would teach him a lesson and in pursuance thereof, lodged a criminal complaint against the plaintiff; that the plaintiff has recently come to know that Sh. Kamil Faridi, in collusion with Sh. Mehmood and Sh. Rais Ahmad, a sworn enemy of the plaintiff, has decided to grab the suit property; that Sh. Kamil Faridi is changing the entire structure of the suit property; that Sh. Kamil Faridi, who is a trespasser, is trying to alienate and dispose off the suit property; that the cause of action to file this suit has arisen on 01.05.19873, when Sh. Kamil Faridi had refused to vacate the suit property and refused to stop the unauthorized construction.

3. The aforesaid first suit of the plaintiff, was disposed off by way of proceedings dated 23.10.1989, Mark G, done by the Court of Ms. Kamlesh Sabharwal, the then Ld. Sub Judge 1 st Class, Tis Hazari Courts, Delhi. The said proceedings are reproduced below:

3 The said date has been specifically pleaded in paragraph xii of the plaint, Mark F. Civil Suit No.636/21 Sh. Maqsood Ali v Sh. Parvej Ahmed & Ors.

Page no. 3 of 30 "Present: Counsel for the defendant.

None for the plaintiff.

Be awaited. 

                 Present:        None for the plaintiff.
                                 Case called at 3:35pm. Suit is dismissed in
                 default. File be consigned to Records.
                                                                      Sub­Judge
                                                                      23.10.89


                 At this stage, counsel of the plaintiff has appeared. He
                 wants to make the statement. Let the same be recorded.
                                                               Sub­Judge 1st Class
                                                               Delhi 23.10.89

Statement of Sh. V.M. Issar, Advocate for the plaintiff.

                 Without Oath
                                 Since      the   plaint   suffers   from   technical

objection. Plaintiff wants to withdraw the present suit, with permission to file proper suit on the same cause of action. 

                 RO&AC                                      Sub­Judge 1 st Class
                                                               Delhi/23.10.89
                 23.10.1989
                                 In view of the statement of the plaintiff's
                 counsel, suit is dismissed as withdrawn. No order as to
                 cost. File be consigned to Record Room.
                                                               Sub­Judge 1st Class

Civil Suit No.636/21
Sh. Maqsood Ali v Sh. Parvej Ahmed & Ors.
Page no. 4 of 30
                                                                    Delhi/23.10.89"

4. In my view, four aspects of the aforesaid first suit of the plaintiff are of relevance viz. (a) that despite pleading that he is the attorney of Bibi Qamrun Nisha, the plaintiff had instituted the aforesaid first suit in his own name and not in the name of Bibi Qamrun Nisha; (b) that in paragraph xii of the plaint of the aforesaid first suit, the plaintiff had categorically pleaded that the cause of action to file the aforesaid first suit had arisen, on 01.05.1987; (c) that in the proceedings dated 23.10.1989, Mark G, Ms. Kamlesh Sabharwal, the then Ld. Sub­Judge 1 st Class had not reviewed/set­aside the dismissal of the aforesaid first suit at 03:35PM, before recording the statement of Sh. V.M. Issar, Ld. Advocate for the plaintiff to the effect that the plaintiff wishes to withdraw the aforesaid first suit, with permission to file proper suit and (d) that in the Order dated 23.10.1989, Ms. Kamlesh Sabharwal, the then Ld. Sub­Judge 1 st Class, had ultimately not given any permission to the plaintiff to file a proper/fresh suit. 4 SECOND SUIT

5. In the plaint of the second suit, which was filed by the plaintiff against Sh. Kamil Faridi (defendant no.3 herein) only, on 24.08.1999 5, seeking possession 4 The said aspect bears relevance in view of the judgment of the Hon'ble High Court of Delhi in Infonox Software Pvt. Ltd. v Raj Kumar Dubey, (2017) 240 DLT 37 and the judgments referred therein, laying down law to the effect (a) that permission under Order XXIII Rule 1(3) of CPC, 1908, cannot be granted mechanically and (b) that in the absence of the said permission, the plaintiff is barred from filing a fresh suit.

5 The plaintiff, deliberately or otherwise, has not filed the certified copy or a normal copy of the plaint of the said suit viz. Suit No. 620/06, Maqsood Ali v Kamil Faridi. The Order dated 17.04.2007, Ex.PW1/10, passed by Ms. Smita Garg, the then Ld. Civil Judge, Delhi in the said suit, reflects that the said suit was either instituted, on 24.08.1999 or 28.09.1999. From the said Order, I have deduced the pleadings made in the plaint of the said suit.

Civil Suit No.636/21

Sh. Maqsood Ali v Sh. Parvej Ahmed & Ors.

Page no. 5 of 30 of the suit property, the plaintiff had inter­alia pleaded that upon the death of Bibi Qamrun Nisha, on 06.06.1995, he had become the owner of the suit property, on the basis of the Will dated 17.03.1984, executed by Bibi Qamrun Nisha in his favor; that Smt. Ramo Devi wife of Sh. Walter Anthony was a tenant of Bibi Qamrun Nisha; that after Smt. Ramo Devi had left the suit property, on 20.10.1986, Sh. Kamil Faridi had trespassed into the suit property; that previously, Bibi Qamrun Nisha had filed a suit for possession etc. against Sh. Kamil Faridi but the said suit was dismissed in default as Bibi Qamrun Nisha and Sh. Kamil Faridi had come to an understanding and Sh. Kamil Faridi had started paying rent of Rs.200/­ per month to Bibi Qamrun Nisha; that later, Bibi Qamrun Nisha had asked Sh. Kamil Faridi to vacate the suit property but Sh. Kamil Faridi had delayed the same; that upon inheriting the suit property from Bibi Qamrun Nisha, the plaintiff had asked Sh. Kamil Faridi to vacate the suit property and also sent a legal notice dated 21.12.1997; that after receiving the said legal notice, Sh. Kamil Faridi had sought time to vacate the suit property; that later, Sh. Kamil Faridi had neither vacated the suit property nor made payments of rent to the plaintiff; that as a result, the plaintiff had served another legal notice dated 19/29.01.1999 6 upon Sh. Kamil Faridi, seeking possession of the suit property.

6. The aforesaid second suit of the plaintiff was disposed off by Order dated 17.04.2007, Ex.PW1/10, passed by Ms. Smita Garg, the then Ld. Civil Judge, Delhi. In the said Order, it was inter­alia held that the aforesaid second suit of the plaintiff was hit by Order IX Rule 9 of CPC, 1908 because the correct reading 6 Interestingly, in the said legal notice, Ex.PW1/9, the plaintiff has claimed that the aforesaid first suit was withdrawn by Bibi Qamrun Nisha, on account of assurances given by Sh. Kamil Faridi. The said plea is in direct conflict with the submission of Sh. V.M. Issar, Ld. Advocate for the plaintiff, recorded in the proceedings dated 23.10.1989, Mark G, done by the Court of Ms. Kamlesh Sabharwal, the then Ld. Sub­Judge, 1st Class, Tis Hazari Courts, Delhi in the aforesaid first suit.

Civil Suit No.636/21

Sh. Maqsood Ali v Sh. Parvej Ahmed & Ors.

Page no. 6 of 30 of the proceedings dated 23.10.1989, Mark G, done by the Court of Ms. Kamlesh Sabharwal, the then Ld. Sub­Judge 1st Class, Tis Hazari Courts, Delhi, in the first suit filed by the plaintiff, reveals (a) that the first suit had been dismissed at 03:35PM as per Order IX Rule 8 of CPC, 1908; (b) that after the said dismissal, the Court of Ms. Kamlesh Sabharwal, the then Ld. Sub­Judge 1 st Class, Tis Hazari Courts, Delhi had become functus officio and (c) that thereafter, the Court of Ms. Kamlesh Sabharwal, the then Ld. Sub­Judge 1 st Class, Tis Hazari Courts, Delhi, had no jurisdiction to record the statement of Sh. V.M. Issar, Ld. Advocate for the plaintiff or pass any further Orders in the first suit filed by the plaintiff, albeit without reviewing/setting aside the dismissal of the suit done at 03:35PM.

7. Also, in the Order dated 17.04.2007, Ex.PW1/10, passed by Ms. Smita Garg, the then Ld. Civil Judge, Delhi, it was inter­alia held that the aforesaid second suit of the plaintiff was barred by Order XXIII Rule 1(3) of CPC, 1908 because ultimately, no liberty to file a fresh suit was granted to the plaintiff in the proceedings dated 23.10.1989, Mark G, done by the Court of Ms. Kamlesh Sabharwal, the then Ld. Sub­Judge, 1st Class, Tis Hazari Courts, Delhi in the first suit filed by the plaintiff.

8. Lastly, in the Order dated 17.04.2007, Ex.PW1/10, passed by Ms. Smita Garg, the then Ld. Civil Judge/Delhi, it was inter­alia held that the aforesaid second suit of the plaintiff was barred by the law of limitation, as provided under Section 3 read with Article 65 of the Schedule to Limitation Act, 1963 because in paragraph xii of the plaint of the first suit, the plaintiff had pleaded that the cause of action to file the first suit for possession against Sh. Kamil Faridi (the defendant) had arisen, on 01.05.1987 and the plaintiff had filed the aforesaid second suit, on Civil Suit No.636/21 Sh. Maqsood Ali v Sh. Parvej Ahmed & Ors.

Page no. 7 of 30 28.09.1999 i.e. after expiry of 12 years from 01.05.1987.

9. The plaintiff had challenged the Order dated 17.04.2007, Ex.PW1/10, passed by Ms. Smita Garg, the then Ld. Civil Judge, Delhi in the aforesaid second suit, by way of a first appeal. However, the said Order was upheld by the Court of Sh. Lal Singh, the then Ld. ADJ, Delhi vide judgment dated 06.11.2007, Ex.PW10/2 passed in RCA No. 03/2007, Sh. Maqsood Ali v Sh. Kamil Faridi (henceforth 'RCA No. 03/2007').

10. The plaintiff had challenged the aforesaid judgment dated 06.11.2007, Ex.PW10/2, passed by the Court of Sh. Lal Singh, the then Ld. ADJ, Delhi, before the Hon'ble High Court of Delhi, by way of a regular second appeal viz. RSA No.54/2008, Sh. Maqsood Ali v Sh. Kamil Faridi (henceforth 'RSA No.54/2008'). During the pendency of the said regular second appeal, the plaintiff had found that Sh. Kamil Faridi (defendant no. 3 herein) had transferred the suit property to the defendants no. 1 and 2 herein. Upon finding so, the plaintiff had filed an application under Order I Rule 10 of CPC, 1908, seeking impleadment of the defendants no. 1 and 2 herein in the aforesaid second suit/regular second appeal but the said application was dismissed by the Hon'ble High Court of Delhi vide Order dated 27.07.2009, Ex.PW1/14, passed in RSA No. 54/2008. Ultimately, RSA No. 54/2008 was disposed off by the Hon'ble High Court of Delhi by way of judgment dated 20.05.2011, Mark H/Ex.PW1/16, remanding the aforesaid second suit for conclusion of trial and a consequent decision on all issues, based on the evidence led by the parties.

11. In my view, four aspects of the aforesaid second suit of the plaintiff are Civil Suit No.636/21 Sh. Maqsood Ali v Sh. Parvej Ahmed & Ors.

Page no. 8 of 30 of relevance viz. (a) that in the plaint of the aforesaid second suit, the plaintiff had pleaded that the first suit was 'dismissed in default' instead of pleading that it was withdrawn with liberty to file a fresh suit on the same cause of action; (b) that in the plaint of the aforesaid second suit, the plaintiff had made pleadings in variance with the pleadings made in the plaint of the first suit, particularly in respect of the manner, Sh. Kamil Faridi (defendant no. 3 herein) had come into the possession of the suit property;7 (c) that in the plaint of the aforesaid second suit, the plaintiff had pleaded that a new landlord­tenant relationship had come into existence between Bibi Qamrun Nisha and Sh. Kamil Faridi, after dismissal of the first suit, on 23.10.19898 and (d) that in the judgment dated 20.05.2011 passed in RSA No.54/2008, the Hon'ble High Court of Delhi had not made any observation regarding the application of Order IX Rule 9 of CPC, 1908 and Order XXIII Rule 1(3) of CPC, 1908, to the aforesaid second suit of the plaintiff.

12. In addition, in my view, it is of relevance (a) that during the pendency of RSA No. 54/2008 before the Hon'ble High Court of Delhi, the plaintiff had filed this suit, on 19.04.2010; (b) that during the pendency of RSA No.54/2008, the plaintiff had never informed the Hon'ble High Court of Delhi about the filing/pendency of this suit9 and (c) that ultimately, the aforesaid second suit of the 7 In the plaint of the first suit, the plaintiff had specifically pleaded that the Sh. Kamil Faridi (defendant no.3 herein) had come into possession of the suit property as a guest of Smt. Ramo Devi, with the consent of the plaintiff. In the plaint of the aforesaid second suit, the plaintiff had pleaded that Sh. Kamil Faridi (defendant no.3 herein) had trespassed into the suit property after Smt. Ramo Devi had left it, on 20.10.1986.

8 It is noteworthy that no such plea was espoused by the plaintiff in the legal notice dated 19/29.01.1999, Ex. PW1/9.

9 I have presumed this fact because the judgment dated 20.05.2011, passed by the Hon'ble High Court of Delhi in RSA No. 54/2008, does not make any reference to this suit, which in my view, would not have been the case, if the Hon'ble High Court of Delhi, had been informed about the pendency of this suit.

Civil Suit No.636/21

Sh. Maqsood Ali v Sh. Parvej Ahmed & Ors.

Page no. 9 of 30 plaintiff, was disposed off, as infructuous, vide Order dated 06.09.2014, passed by the Court of Sh. Vikrant Vaid, the then Civil Judge­04, Central District, Tis Hazari Courts, Delhi, inter­alia on the premise that the filing of this suit had made that suit, infructuous.10 THIRD SUIT

13. In this third suit, which the plaintiff has filed against the defendants herein, including Sh. Kamil Faridi (defendant no.3 herein), inter­alia seeking possession of the suit property 11, the plaintiff has inter­alia pleaded that the plaintiff has become the owner of the suit property, by virtue of Will dated 17.03.1984, executed by his aunt, Bibi Qamrun Nisha in his favour; that his aunt, Bibi Qamrun Nisha, had become the owner of the suit property by virtue of Will dated 17.04.194412, executed by Late Sh. Mehboob Hasan in her favour; that his aunt, Bibi Qamrun Nisha used to reside with her husband, Sh. Sunny in H. No. 105/65, Basti Hazrat Nizamuddin, New Delhi­13, except the portion shown in red colour, which was rented out to Sh. Corporal Michal by his aunt, Bibi Qamrun Nisha; that Sh. Corporal Michal used to reside in the said part of H. No. 105/65, Basti Hazrat Nizamuddin, New Delhi­13 (henceforth 'suit property') with his family and Sh.

10 In my view, the said Order is remarkably suspect, in view of the law regarding Section 52 of Transfer of Property Act, 1882, as explained by the Hon'ble Supreme Court in Vidur Impex and Traders Pvt. Ltd. v Tosh Apartments Pvt. Ltd. & Ors., (2012) 8 SCC 384 and Vinod Seth v Devinder Bajaj, (2010) 8 SCC 1.

11 The other reliefs, sought by the plaintiff are (i) declaration to the effect that the documents, allegedly executed by the defendant no.3 in favor of the defendants no.1 and 2 be declared null and void and

(ii) permanent permanent prohibitory injunction to the effect that the defendants be restrained from parting with the possession of the suit property or selling/transferring the suit property. 12 The said date has been wrongly pleaded in paragraph 3 of the plaint of this suit. A perusal of the Will of Late Sh. Mehboob Hasan, propagated by the plaintiff reflects that it was allegedly executed, on 04.07.1940.

Civil Suit No.636/21

Sh. Maqsood Ali v Sh. Parvej Ahmed & Ors.

Page no. 10 of 30 Walter Anthony; that a settlement was reached between Sh. Sunny and Sh. Corporal Michal, on 29.07.1953, as a result of which, Sh. Corporal Michal had left the suit property; that thereafter, Sh. Walter Anthony and his wife, Smt. Ramo Devi had started residing exclusively at the suit property, by paying rent of Rs.8/­ per month to Bibi Qamrun Nisha; that in September 1978, Sh. Walter Anthony had tried to sub­let a part of the suit property to a third person; that upon coming to know about the intention of Sh. Walter Anthony to sub­let a part of the suit property, Bibi Qamrun Nisha had served a legal notice dated 21.09.1978 upon Sh. Walter Anthony, terminating his tenancy qua the suit property; 13 that thereafter, Smt. Ramo Devi had made a false Will in favour of the defendant no. 3, Sh. Kamil Faridi, in respect of the suit property and wrongly described the suit property as H. No. 108­ A, Basti Hazarat Nizamuddin, New Delhi­13; that H. No. 108­A, Basti Hazarat Nizamuddin, New Delhi­13, actually belongs to the defendant no. 4, Sh. Rais Ahmed, who had applied for its mutation in his name, after the death of his father; that on the basis of false Will executed by Smt. Ramo Devi, the defendant no. 3, Sh. Kamil Faridi had trespassed into the suit property; that when the plaintiff Bibi Qamrun Nisha had found about the said trespass, they had a altercation with the defendant no. 3, Sh. Kamil Faridi, which had resulted in registration of FIR No. 338/86 under Section 452/323 of IPC, 1860 against the plaintiff; that the criminal case arising from the said FIR had resulted in the acquittal of the plaintiff as the complainant of the said FIR was unable to produce the property documents qua H. No. 108­A, Basti Hazarat Nizamuddin, New Delhi­13; 14 that after registration of FIR 13 A perusal of the said legal notice, Ex.PW1/5 (OSR), reflects that it was issued by the plaintiff herein and not Bibi Qamrun Nisha and that contrary to the case pleaded in all the plaints filed by the plaintiff, the said legal notice, claims that the plaintiff was the landlord qua the suit property, in 1978. 14 The judgment dated 30.08.1993, Mark A passed by the Court of Sh. V.K. Malhotra, the then Ld. MM, New Delhi, in the criminal case arising from FIR No. 338/86, PS Hazrat Nizamuddin, State v Maqsood Ali, provides interesting revelations regarding the case of the plaintiff. One of them is that before the said Court, Bibi Qamrun Nisha had appeared as a defence witness on behalf of the Civil Suit No.636/21 Sh. Maqsood Ali v Sh. Parvej Ahmed & Ors.

Page no. 11 of 30 No. 338/86, Bibi Qamrun Nisha had filed the aforesaid first suit, on 23.05.1987 and ultimately withdrawn it, with liberty to file a fresh suit on the same cause of action, on 23.10.1989;15 that thereafter, Bibi Qamrun Nisha had come to an understanding with the defendant no. 3, Sh. Kamil Faridi, whereby he had agreed to vacate the suit property but later, fail to do so; that after becoming the owner of the suit property on the basis of the Will dated 17.03.1984, executed by Bibi Qamrun Nisha in his favour, the plaintiff had served a legal notice dated 21.12.1997 16 upon the defendant no. 3, Sh. Kamil Faridi; that after service of the said legal notice, the defendant no. 3, Sh. Kamil Faridi had sought time to vacate the suit property but ultimately not done so; that thereafter, the plaintiff had served a legal notice dated 29.01.1999 upon the defendant no. 3, Sh. Kamil Faridi and upon his failure to comply with the said legal notice, the plaintiff had filed the aforesaid second suit, which had led to RSA No. 54/2008, being filed by the plaintiff in the Hon'ble High Court of Delhi and that the necessity to file this suit has arisen because during the pendency of RSA No. 54/2008, the defendant no. 3, Sh. Kamil Faridi has transferred/sold the suit property to the defendants no. 1 and 2 and despite service of legal notice dated 13.03.2010, the defendants no. 1 to 3 have not handed over the possession of the suit property to the plaintiff.

14. In their joint written statement qua this suit, the defendants no. 1 and 3 have inter­alia pleaded that this suit is barred by res judicata (a) because it has plaintiff (accused therein) and deposed on oath that her husband, Sh. Sunny had purchased H. No.105/65, Basti Hazrat Nizamuddin, New Delhi­13 in 1977. This is in sharp contrast to the case pleaded by the plaintiff in all his three suits.

15 The said pleading is inconsistent with the proceedings dated 23.10.1989, Mark G, done by the Court of Ms. Kamlesh Sabharwal, the then Ld. Sub­Judge, 1 st Class, Tis Hazari Courts. As noted earlier in this judgment, in the said proceedings, no liberty to file a fresh suit was granted to Bibi Qamrun Nisha or the plaintiff.

16 For reasons best known to the plaintiff, the said legal notice has not been placed on record.

Civil Suit No.636/21

Sh. Maqsood Ali v Sh. Parvej Ahmed & Ors.

Page no. 12 of 30 been filed during the subsistence of the Order dated 17.04.2007, passed by Ms. Smita Garg, the then Ld. Civil Judge, Delhi in the aforesaid second suit as well as the judgment dated 06.11.2007, passed by Sh. Lal Singh, the then Ld. ADJ, Delhi in the appeal arising therefrom viz. RCA No. 03/2007 and (b) because it has been filed during the pendency of RSA No. 54/2008, before the Hon'ble High Court of Delhi; that the relief of possession, sought by way of this suit is barred by the law of limitation because the cause of action to seek possession of the suit property had accrued in favour of Bibi Qamrun Nisha (predecessor in interest of the plaintiff) in 1986; that this suit is hit by Order II Rule 2 of CPC, 1908; that the claim of the plaintiff that he has become the owner of the suit property on the basis of the Will dated 17.03.1984 executed by Bibi Qamrun Nisha, is false because during the proceedings of succession certificate petition bearing no. 684/95, Sh. Maqsood Ali v State, the plaintiff had made a statement before the Court of Sh. Kamlesh Kumar, the then Ld. ACJ, Delhi to the effect that Bibi Qamrun Nisha had not executed any Will during her lifetime; that the dispute raised by the plaintiff regarding the identification number of the suit property is also false because in a complaint dated 11.07.2004, addressed to the SHO, PS Hazarat Nizamuddin, the plaintiff has himself described the address of the defendant no. 3, Sh. Kamil Faridi as H. No. 108­A, Basti Hazarat Nizamuddin, New Delhi; that the plaintiff is guilty of repeatedly changing his stand qua his relationship with the suit property; that the Will dated 17.03.1984 of Bibi Qamrun Nisha, propagated by the plaintiff has been forged by the plaintiff; that Bibi Qamrun Nisha had absolutely no concern with the suit property; that Bibi Qamrun Nisha had not become the owner of the suit property, by virtue of Will dated 17.04.1944, executed by Late Sh. Mehboob Hasan; that a copy of ration card filed by the plaintiff in the aforesaid second suit, reflects that Bibi Qamrun Nisha was not even born in 1944; that Sh. Corporal Michal had never Civil Suit No.636/21 Sh. Maqsood Ali v Sh. Parvej Ahmed & Ors.

Page no. 13 of 30 resided in the suit property; that the plaintiff is guilty of concocting different stories in all the three suits; that no settlement had ever been made between Sh. Walter Anthony, Smt. Ramo Devi and Bibi Qamrun Nisha; that the entire story pleaded in the plaint of this suit qua the transactions between Sh. Walter Anthony, Smt. Ramo Devi and Bibi Qamrun Nisha in 1970s and 1980s, is false; that Smt. Ramo Devi was the owner of the suit property and she had rightfully transferred it to the defendant no. 3, Sh. Kamil Faridi; that the house tax documents/receipts filed by the defendants, reflect that Sh. Kamil Faridi is the owner of the suit property and the correct identification number of the suit property is 108­A, Basti Hazarat Nizamuddin, Delhi and that this suit is liable to be dismissed.

15. In the replication of this suit, the plaintiff has traversed the contents of the aforesaid joint written statement, made the necessary denials and reaffirmed the contents of the plaint. Additionally, the plaintiff has inter­alia pleaded that this suit is not hit by res judicata, on account of Order dated 17.04.2007, passed by Ms. Smita Garg, the then Ld. Civil Judge, Delhi in the aforesaid second suit as well as the judgment dated 06.11.2007, passed by Sh. Lal Singh, the then Ld. ADJ, Delhi in the appeal arising therefrom viz. RCA No. 03/2007 because during the pendency of this suit, the Hon'ble High Court of Delhi has disposed off RSA No.54/2008 vide judgment dated 20.05.2011 in his favor; that the relief of possession, sought by way of this suit is not barred by the law of limitation because the cause of action to file this suit had arisen, on 27.07.2009 when during the pendency of RSA No. 54/2008, the defendant no.3, Sh. Kamil Faridi had informed that he has sold the suit property to Sh. Nasruddin and because the cause of action to file this suit, is a recurring cause of action and that the statement made by the plaintiff during the proceedings of succession certificate petition no. 684/95, Sh. Maqsood Ali v State Civil Suit No.636/21 Sh. Maqsood Ali v Sh. Parvej Ahmed & Ors.

Page no. 14 of 30 before the Court of Sh. Kamlesh Kumar, Ld. ACJ, Delhi was to the effect that Bibi Qamrun Nisha had executed a Will only for her immovable property and not for movable properties.17

16. On the basis of the aforesaid pleadings of the parties, the following issues were framed by a Ld. Predecessor Judge, on 27.04.2016:

"1. Whether the suit of the plaintiff is barred by limitation? OPDs
2. Whether the defendant no. 3 had right to sell the suit property? OPD3
3. Whether the plaintiff is entitled to decree of cancellation of document as prayed for? OPP
4. Whether the plaintiff is entitled to decree of possession as prayed for? OPP
5. Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP
6. Relief."

17. During the trial of this suit, eleven witnesses viz. PW1 Sh. Maqsood Ali, PW2 Sh. Wasim, PW3 Sh. Anis Ahmed Khan, PW4 Sh. Boby Singh, PW5 Sh. Prashant Kumar, PW6 Sh. Suresh Chand, PW7 Sh. Veer Pal Singh, PW8 Sh. Ashok Kumar, PW9 Sh. Jai Kumar, PW10 Sh. Ghanshyam and PW11 Sh. Bashir Ahmad were examined in support of the case of the plaintiff and one witness viz.

17 This plea is contrary to (a) the actual statement made by the plaintiff in the Court of Sh. Kamlesh Kumar, the then Ld. ACJ, Delhi, on 17.03.1998 and (c) the content of the fourth line of the Will dated 17.03.1984, Ex.PW1/2 of Bibi Qamrun Nisha, which clearly stipulates that the said Will pertains to both movable and immovable properties of Bibi Qamrun Nisha.

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Page no. 15 of 30 DW1 Sh. Parvez Ahmed was examined in support of the case of the contesting defendants.18 The testimonies of the said witnesses are not being discussed, at this stage of this judgment, for the sake of brevity.

18. In order to adjudicate upon this suit, I had heard Sh. N.K. Kantawala, Ld. Advocate for the plaintiff and Sh. S.A. Khan, Ld. Advocate for the defendant no. 1, on 07.04.2022, 27.04.2022, 05.05.2022 and 10.05.2022.

19. Before giving the findings qua the issues framed in this suit, on 27.04.2016, I find it necessary to make few prefatory observations qua this suit as well as the previous two suits filed by the plaintiff.

Observation 1

20. In my view, this suit is a classical case of abuse of process of law by a litigant (a) because the plaintiff had absolutely no legal basis to file this suit during the pendency of RSA No. 54/2008, Sh. Maqsood Ali v Sh. Kamil Faridi, before the Hon'ble High Court of Delhi, which was nothing but a continuation of the aforesaid second suit of the plaintiff and (b) because I am certain that the plaintiff had filed this suit, without informing the Hon'ble High Court of Delhi (which on the date of institution of this suit viz. 19.04.2010, was in seisin over RSA No.54/2008) about the filing or pendency of this suit. This point can be better understood through the following illustration:

18 The defendant no.4 has not contested this suit. The record shows that he had made a statement before this Court, on 17.09.2011, to the effect that his property no. 108­A, Basti Hazrat Nizamuddin, New Delhi, is different from the suit property and he has no dispute with the plaintiff and the defendants no. 1 to 3.
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Page no. 16 of 30 "A files a suit against B, seeking possession of the suit property. The plaint of the said suit gets rejected under Order VII Rule 11(a) of CPC, 1908, for want of cause of action or under Order VII Rule 11(d) of CPC, 1908, on account of being barred by any law for e.g. limitation. A challenges the said Order of rejection of plaint, before a superior Court via an appeal. During the pendency of the said challenge/appeal, B transfers the suit property to C, through registered/unregistered documents."

In my view, in the aforesaid illustration, A is prima­facie not required to implead C as a party to the appeal because the common law doctrine of lis pendens, codified under Section 52 of the Transfer of Property Act, 1882 applies to the transaction between B and C.19 Also, in my view, in the aforesaid illustration, if A moves an application before the appellate Court, seeking impleadment of C as a respondent and the appellate Court rejects the said application, the remedy for A can be to file an appeal before an even superior Court but not to file a fresh suit against B and C, inter­alia seeking possession of the suit property, especially without informing the appellate Court and expressly seeking its leave. 20 Applying this hypothesis to the case of the plaintiff herein, I have no doubt in saying that by filing this suit, the plaintiff has abused the process of law and that by itself, is a good ground for this 19 I say so on the strength of the law regarding Order 1 Rule 10 of CPC, 1908, Order XXII Rule 10 of CPC, 1908 and Section 52 of the Transfer of Property Act, 1882, as discussed by the Hon'ble Supreme Court in Vidur Impex and Traders Pvt. Ltd. v Tosh Apartments Pvt. Ltd. & Ors., (2012) 8 SCC 384. In fact, in the aforesaid illustration, onus will be on C to approach the Court and seek impleadment, if C has any doubt that his interest will not be duly protected by B. 20 I say so because the Order of rejection of plaint passed by the suit Court (which is yet to be upset by the appellate Court), will continue to operate as res judicata between A and B as well as C, who is nothing but successor in interest of B and who having derived title/possession from B, is entitled to benefit of the Order of the suit Court, in favor of B. Civil Suit No.636/21 Sh. Maqsood Ali v Sh. Parvej Ahmed & Ors.

Page no. 17 of 30 Court, to non­suit the plaintiff.

Observation 221

21. Next, in my view, the previous two suits filed by plaintiff as well as this suit, suffer from a fallacy of ignoring the provisions of the Delhi Rent Control Act, 1958 (henceforth 'DRC Act, 1958'). A bare perusal of the plaint, Mark F of the aforesaid first suit filed by the plaintiff against Smt. Ramo Devi and the defendant no.3 herein, Sh. Kamil Faridi reflects that the alleged tenancy of Smt. Ramo Devi qua the suit property was protected by Section 14 of the DRC Act, 1958 and the remedy for Bibi Qamrun Nisha on the date of institution of the aforesaid first suit viz. 22.05.1987 was to file a petition under Section 14(1)(b) of the DRC Act, 1958 against Smt. Ramo Devi and the defendant no.3 herein, Sh. Kamil Faridi, inter­alia pleading that both, Smt. Ramo Devi and the defendant no.3 herein, Sh. Kamil Faridi are liable to be evicted from the suit property as Smt. Ramo Devi has 'assigned' or 'otherwise parted away with the possession of the suit property' in favor of defendant no.3 herein, Sh. Kamil Faridi, without obtaining in writing, the consent of Bibi Qamrun Nisha. This point can be better understood through the following illustration:

"A rents out his residential property to B, located in an area notified under the DRC Act, 1958, at a rent of Rs. 200 per 21 This observation has been made on demurrer i.e. 'believing' everything pleaded in the three plaints of the plaintiff to be true and not after 'finding' everything pleaded in the three plaints of the plaintiff to be true. Also, this observation has been made in view of the judgment of the Hon'ble High Court of Delhi in Shahida Khatoon & Ors. v Quaiyum Ali & Anr. (2018) SCC OnLine Del 11955, laying down law to the effect that there cannot be estoppel against statue and as a result, it is the duty of a Court to examine whether the bar under Section 50 of DRC Act, 1958 applies to a suit, irrespective of the stand of the defendant.
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Page no. 18 of 30 month. B hands over the possession of the residential property to C, while representing that he is the owner of the residential property. A requests C to vacate the residential property but C does not."

In my view, in the aforesaid illustration, A has to file a petition under Section 14(1)

(b) of the DRC Act, 1958 against B and C and only through such a petition, A can bring an end to the protected tenancy of B and obtain the possession of the residential property from C. In my view, the remedy for A cannot be to file a suit for possession against B and C on the premise that C is a trespasser in the suit property because such a suit would undermine Section 14 of the Delhi Rent Control Act, 1958, which starts with a non­obstante clause and over­rides any contract or general law applicable to A and B. I have expressed this opinion on the strength of the judgment in Chitra Garg v Surinder Kumar Bansal & Anr., (2009) 112 DRJ 545, wherein the Hon'ble High Court of Delhi, faced with such a dilemma, has observed as under:

"18. To my mind, the question raised is not free from doubt. As a proposition of law, a owner/landlord cannot be held entitled to approach the Civil Court on the plea of the premises being in occupation of a sub tenant and thus there being no need to approach the Rent Controller. The same can become a tool in the hands of unscrupulous litigants to obtain decrees for possession without impleading the tenant as a party and in pursuance thereto dispossessing the tenant from the premises."

22. Likewise, the aforesaid second suit of the plaintiff, suffers from the Civil Suit No.636/21 Sh. Maqsood Ali v Sh. Parvej Ahmed & Ors.

Page no. 19 of 30 fallacy of ignoring the provisions of DRC Act, 1958 because in the plaint of the second suit, the plaintiff had expressly pleaded that after dismissal of the aforesaid first suit, an understanding was reached between the defendant no. 3, Sh. Kamil Faridi and Bibi Qamrun Nisha as a result of which, the defendant no. 3, Sh. Kamil Faridi had started paying rent of Rs.200/­ per month to Bibi Qamrun Nisha qua the suit property. In my view, with the said pleading in the plaint of the aforesaid second suit of the plaintiff, the plaintiff could not have filed the aforesaid second suit, seeking possession of the suit property and the remedy, if any, available with the plaintiff was to file a petition under Section 14(1)(a) of the DRC Act, 1958, against the defendant no. 3, Sh. Kamil Faridi, on the ground of non­payment of rent.

23. In my view, the malady of the plaintiff ignoring the provisions of DRC Act, 1958, has permeated down to this suit because in the plaint of this suit, the plaintiff has not repudiated the above­noted pleading made in the plaint of the aforesaid second suit and in light of the said pleading, the remedy for the plaintiff, cannot be to file this suit against the defendants no.1 to 3, inter­alia seeking possession of the suit property. Instead, the remedy for the plaintiff could have been to file a petition under Section 14(1)(b) of the DRC Act, 1958, inter­alia pleading that since, the defendant no. 3, Sh. Kamil Faridi (who had voluntarily become a tenant of Bibi Qamrun Nisha qua the suit property, after dismissal of the aforesaid first suit, by paying rent of Rs.200/­ per month to Bibi Qamrun Nisha) has 'assigned' or 'otherwise parted away with the possession of the suit property' in the favour of defendants no. 1 and 2, without obtaining in writing the consent of the plaintiff (successor in interest of Bibi Qamrun Nisha), the defendants no. 1 to 3 are liable to be evicted from the suit property.

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Page no. 20 of 30 Observation 3

24. Lastly, in my view, the plaintiff is guilty of repeatedly changing his stance qua the suit property and that by itself, is also a good ground for this Court, to non­suit the plaintiff. Some of the notable instances of the plaintiff changing his stance qua the suit property are noted below:

(a) In the legal notice dated 21.09.1978, Ex.PW1/5, the plaintiff had claimed that he is the landlord qua the suit property. But in the plaint of the first suit, the plaintiff had claimed that his aunt/principal, Bibi Qamrun Nisha had rented out the suit property to Sh. Walter Anthony and therefore, she was the landlady qua the suit property;
(b) In the plaint, Mark F of the first suit, the plaintiff had specifically pleaded that at the request of Smt. Ramo Devi, he had permitted the defendant no. 3, Sh. Kamil Faridi to reside at the suit property. But in the plaints of the subsequent two suits including this suit, the plaintiff has pleaded that the defendant no. 3, Sh. Kamil Faridi had trespassed into the suit property, after Smt. Ramo Devi had left it, on 20.10.1986;

(c) During the proceedings of succession certificate petition bearing no. 684/95, Sh. Maqsood Ali v State, before the Court of Sh. Kamlesh Kumar, the then Ld. ACJ, Delhi had made a statement on 17.03.1998, to the effect that Bibi Qamrun Nisha had died intestate but in the plaint of the aforesaid second and this suit, the plaintiff has pleaded that he has inherited the suit property from Bibi Qamrun Nisha, on account of operation of the Will dated 17.03.1984, Ex.PW1/2; 22and

(d) In the plaint of the aforesaid second suit, the plaintiff had pleaded that the 22 A perusal of the fourth line of the said Will, Ex.PW1/2 reflects that it pertains to both movable and immovable properties of Bibi Qamrun Nisha.

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Page no. 21 of 30 aforesaid first suit had been dismissed in default as Bibi Qamrun Nisha and defendant no. 3, Sh. Kamil Faridi had reached an understanding and the defendant no. 3, Sh. Kamil Faridi had started paying rent of Rs.200/­ per month to Bibi Qamrun Nisha. But in the plaint of this suit, the plaintiff has pleaded that the aforesaid first suit was withdrawn, with liberty to file a fresh suit on the same cause of action.

25. In the wake of the aforesaid prefatory observations qua qua this suit as well as the previous two suits filed by the plaintiff, I now proceed to give the findings qua the issues framed in this suit, on 21.11.2017.

ISSUE NO.1

26. In my view, this issue is ex­facie liable to be decided in favour of the defendants no. 1 to 3, particularly the defendant no. 3 and against the plaintiff because a perusal of paragraph xii of the plaint, Mark F of the aforesaid first suit of the plaintiff reflects that the cause of action to seek possession of the suit property from the defendant no. 3 herein, Sh. Kamil Faridi had accrued in favour of Bibi Qamrun Nisha/the plaintiff23, on 01.05.1987; because in so far as the law of limitation is concerned, this suit is independent of the previous two suits filed by the plaintiff; because this suit has been filed by the plaintiff, on 19.04.2010 i.e. after expiry of 12 years from 01.05.198724 and because in view of the applicability of the 23 At this stage, it is relevant to note that all along, the plaintiff has maintained that the aforesaid first suit was filed at the instance of Bibi Qamrun Nisha and not by going rogue and that the plaintiff is only a successor in interest of Bibi Qamrun Nisha.

24 In this regard, reference is craved to Article 65 of the Schedule to the Limitation Act, 1963, which stipulates that a suit for possession should be filed within 12 years from the date, when the possession of the defendant becomes adverse to the plaintiff.

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Page no. 22 of 30 doctrine of lis pendens, as explained above, to this suit, the pleading made in paragraph 26 of the plaint of this suit viz. that the cause of action to file this suit had arisen on 27.07.2009 when the defendant no. 3 had made a statement regarding the transfer of the suit property to one, Sh. Nasiruddin and later, on 13.03.2010, when the defendants no. 1 to 3 had failed to comply with the legal notice dated 13.03.2010, cannot save the case of the plaintiff. 25

27. Further, in my view, this issue is ex­facie liable to be decided in favour of the defendants no. 1 to 3 and against the plaintiff because once it is found that the relief of possession, sought by the plaintiff, is barred by the law of limitation, Section 27 of the Limitation Act, 1963 becomes applicable. The said provision clearly provides that upon determination of the period for instituting a suit for possession, the right to property gets extinguished. In my view, on account of the applicability of Section 27 of the Limitation Act, 1963, the alleged rights of the plaintiff qua the suit property, stand extinguished and the plaintiff has no basis to seek the other reliefs, sought by way of this suit. 26

28. During the hearing of final arguments, the Ld. Advocate for the plaintiff had submitted that this Court should not accept 01.05.1987, as the date when cause of action had arisen in favour of Bibi Qamrun Nisha/the plaintiff, to seek the possession of the suit property from the defendant no. 3 herein, Sh. Kamil Faridi 25 At this stage, I must point out that de hors of the applicability of the doctrine of lis pendens (as stated above), the non­compliance of the terms of the legal notice dated 13.03.2010 by the defendants no. 1 to 3, is immaterial/irrelevant from the vantage point of the applicability of the law of limitation to this suit. In this regard, reference is craved to paragraph 32C of the judgment of the Hon'ble High Court of Delhi in India Yamaha Motor Pvt. Ltd. v Seema Bhatia, (2019) SCC OnLine Del 9554. 26 For the law regarding Section 27 of the Limitation Act, 1963, reference is craved to the judgments in Smt. Ramti Devi v Union of India, (1955) 1 SCC 198 and Lata Chauhan v L.S. Bisht, 2010 (117) DRJ 715.

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Page no. 23 of 30 because in paragraph xii of the plaint, Mark F of the aforesaid first suit, the plaintiff had nowhere expressly pleaded that the possession of the defendant no. 3, Sh. Kamil Faridi had become adverse to Bibi Qamrun Nisha/the plaintiff w.e.f. 01.05.1987 and because Section 22 of the Limitation Act, 1963 applies to the relief of possession, sought by the plaintiff, by way of this suit. In my view, the said submission is legally untenable because no such plea has been made in the plaint of this suit, particularly in paragraph 26 of the plaint of this suit, wherein the plaintiff has made specific pleadings, in compliance of Order VII Rule 1(e) of CPC, 1908. 27 Also, in my view, the said submission is factually untenable in view of the wording of paragraph xii of the plaint, Mark F. The said paragraph is reproduced below:

"That the cause of action of the suit has arisen on Ist May 1987 when the defendant no.2 has categorically refused to vacate the premises denied to stop the modification and changing the physical structure of the above mentioned suit property. Therefore, this court has jurisdiction to try and entertain this suit and grant the relief as prayed for."

In my view, the aforesaid wording, especially when it is seen/read in light of the stand of the plaintiff and Bibi Qamrun Nisha recorded in the judgment dated 30.08.1993, Mark A, passed by the Court of Sh. V.K. Malhotra, the then Ld. MM, New Delhi, in the criminal case arising from FIR No. 338/86, PS Hazrat Nizamuddin, State v Maqsood Ali, clearly reflects that the possession of the 27 In this regard, reference is craved to the judgment of the Hon'ble High Court of Delhi in India Yamaha Motor Pvt. Ltd. v Seema Bhatia, (2019) SCC OnLine Del 9554, wherein the attempt made by the plaintiff to argue a case qua the applicability of the law of limitation, beyond the pleadings made in the plaint of the suit, was negated by the Hon'ble High Court of Delhi, inter­alia by observing that in a suit no evidence beyond pleadings can be led or read and no decision on the basis thereof rendered. Similarly, in Lata Chauhan v L.S. Bisht, 2010 (117) DRJ 715, the Hon'ble High Court of Delhi has observed that no amount of evidence or arguments in the absence of pleadings can be gone into by the Court.

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Page no. 24 of 30 defendant no. 3, Sh. Kamil Faridi had definitely become adverse to Bibi Qamrun Nisha/the plaintiff w.e.f. 01.05.1987 (if not earlier).

29. In view of the aforesaid, this issue is decided in favour of the plaintiff and against the defendants no. 1 to 3. It is held that all the reliefs, sought by way of this suit, are barred by the law of limitation.

ISSUE NO.2

30. In view of the applicability of Section 27 of the Limitation Act, 1963, as discussed above, this issue is decided in favour of the defendant no. 3 and against the plaintiff. It is held that after expiry of 12 years from 01.05.1987, the defendant no. 3, Sh. Kamil Faridi, had definitely obtained transferable rights qua the suit property.28 ISSUE NO.3

31. In my view, this issue is ex­facie liable to be decided against the plaintiff because the plaintiff has not placed on record any documents, which are liable to be cancelled by this Court, as per Section 31 of the Specific Relief Act, 1963; because the sole witness of the contesting defendants viz. DW1 Sh. Parvej Ahmed has also not tendered in evidence any documents, which are liable to be cancelled by this Court, as per Section 31 of the Specific Relief Act, 1963 and 28 This finding has been given de hors of my considered opinion that during the trial of this suit, the plaintiff has not been able to establish that Bibi Qamrun Nisha or the plaintiff ever had a clear tittle qua the suit property. Also, this finding has been given, after taking note of the judgment of the Hon'ble Supreme Court in Ravinder Kaur Grewal v Manjit Kaur, (2019) SCC OnLine SC 975.

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Page no. 25 of 30 because strictu sensu, in view of the judgment of the Hon'ble High Court of Delhi in Suhrid Singh @ Sardool Singh v Randhir Singh & Ors., (2010) 12 SCC 112, the plaintiff being a non­executant of the documents allegedly executed by the defendant no. 3, Sh. Kamil Faridi in favour of the defendants no.1 and 2, should have sought relief of declaration qua the said alleged documents instead of seeking the relief of cancellation.

32. In view of the aforesaid, this issued is decided against the plaintiff. It is held that the plaintiff is not entitled to the relief/decree of cancellation of documents, as prayed for.

ISSUE NO.4

33. In my view, this issue is ex­facie liable to be decided in favour of the defendants no. 1 to 3 and against the plaintiff because of the following reasons.

34. Firstly, this issue is ex­facie liable to be decided in favour of the defendants no. 1 to 3 and against the plaintiff because as stated earlier in this judgment, the relief of possession sought by the plaintiff, is barred by the law of limitation.

35. Secondly, this issue is ex­facie liable to be decided in favour of the defendants no. 1 to 3 and against the plaintiff because the plea of the plaintiff that Bibi Qamrun Nisha had become the owner of the suit property by virtue of Will dated 17.04.1944 (actually dated 04.07.1940), Ex.PW1/3, executed by Late Sh. Mehboob Hasan, cannot be accepted in preference to the stand of Bibi Qamrun Civil Suit No.636/21 Sh. Maqsood Ali v Sh. Parvej Ahmed & Ors.

Page no. 26 of 30 Nisha recorded in the judgment dated 30.08.1993, Mark A, passed by the Court of Sh. V.K. Malhotra, the then Ld. MM, New Delhi, in the criminal case arising from FIR No. 338/86, PS Hazrat Nizamuddin, State v Maqsood Ali. In the said judgment, it is recorded that the stand of Bibi Qamrun Nisha was that the suit property was purchased by her husband, Sh. Sunny, in 1977.

36. Thirdly, this issue is ex­facie liable to be decided in favour of the defendants no. 1 to 3 and against the plaintiff because in view of the statement made by the plaintiff in the Court of Sh. Kamlesh Kumar, the then Ld. ACJ, Delhi, on 17.03.1998, during the proceedings of succession certificate petition no. 684/95, Sh. Maqsood Ali v State, to the effect that Bibi Qamrun Nisha had died intestate on 06.06.1995, the Will dated 17.03.1984, Ex.PW1/2 of Bibi Qamrun Nisha, propagated by the plaintiff, in this Court, appears to be dubious and unworthy of reliance. During the hearing of final arguments, the Ld. Advocate for the plaintiff had submitted that the aforesaid statement dated 17.03.1998, was only in respect of the movable properties, left behind by Bibi Qamrun Nisha and not in respect of the suit property. The said submission cannot be accepted (a) because it is contrary to the wording of the aforesaid statement dated 17.03.1998 and how, it was understood by the Court of Sh. Kamlesh Kumar, the then Ld. ACJ, Delhi, in the ultimate judgment dated 25.03.1998 and (b) because the Will dated 17.03.1984, Ex.PW1/2 refers to both, movable and immovable properties left behind by Bibi Qamrun Nisha and (c) because the plaintiff has never gone back to the Court of Sh. Kamlesh Kumar, the then Ld. ACJ, Delhi or the successor Court in order to make amends and clarify that the aforesaid statement dated 17.03.1998 was ex­ facie false in view of the contents of the Will dated 17.03.1984, Ex.PW1/2 of Bibi Qamrun Nisha.

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37. Fourthly, this issue is ex­facie liable to be decided in favour of the defendants no. 1 to 3 and against the plaintiff because in my view, after the dismissal of the aforesaid first suit, by way of proceedings dated 23.10.1989, Mark G, Bibi Qamrun Nisha and later, the plaintiff (her alleged exclusive successor in interest w.e.f. 06.06.1995) had no right to file a fresh suit for possession against the defendant no. 3, Sh. Kamil Faridi, on account of the bar provided under Order IX Rule 9 of CPC, 1908 and Order XXIII Rule 1(3) of CPC, 1908.29

38. Fifthly, this issue is ex­facie liable to be decided in favour of the defendants no. 1 to 3 and against the plaintiff because the site plan, Ex.PW1/1 tendered in evidence by the plaintiff, does not correspond with the description of the suit property, as recorded in the judgment dated 30.08.1993, Mark A, passed by the Court of Sh. V.K. Malhotra, the then Ld. MM, New Delhi, in the criminal case arising from FIR No. 338/86, PS Hazrat Nizamuddin, State v Maqsood Ali and because as such, the plaintiff cannot be said to have complied with the provisions of Order VII Rule 3 of CPC, 1908, which require the plaintiff to clearly identify the suit property.

39. Sixthly, this issue is ex­facie liable to be decided in favour of the defendants no. 1 to 3 and against the plaintiff because all the prefatory observations made in paragraph 20 to 24 of this judgment, lead to the conclusion that the plaintiff does not deserve any assistance of this Court.

29 In regard to the applicability of Order XXIII Rule 1(3) of CPC, 1908, reference is craved to the judgment of the Hon'ble High Court of Delhi in Infonox Software Pvt. Ltd. v Raj Kumar Dubey, (2017) 240 DLT 37 and the judgments referred therein.

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40. In view of the aforesaid reasons, this issue is decided in favour of the defendants no. 1 to 3 and against the plaintiff. It is held that the plaintiff is not entitled to the relief/decree of possession qua the suit property, as prayed for.

ISSUE NO.5

41. In my view, the finding qua this issue is dependent/predicated on the finding given qua the issue no.4. Since, the said issue has been decided in favour of the defendants no. 1 to 3 and against the plaintiff, this issue is also decided in favour of the defendants no. 1 to 3 and against the plaintiff. It is held that the plaintiff, who is not entitled to the relief/decree of possession qua the suit property, as prayed for, is also not entitled to the relief/decree of permanent prohibitory injunction qua the suit property, as prayed for.

RELIEF

42. In view of the aforesaid findings given qua the issues framed in this suit, on 27.04.2016, this suit is dismissed. In exercise of power under Section 35A of CPC, 1908, the plaintiff is directed to pay compensatory cost of Rs.3000/­ to the defendants no. 1 to 3, for pursuing this vexatious suit against the defendants no. 1 to 3, instead of pursuing the aforesaid second suit.

43. Before parting with this judgment, it is clarified that this judgment has been passed after taking note of the judgment of the Hon'ble Supreme Court in Sayed Muhammed Mashur Kunhi Koya Thangal v Badagara Jumayath Palli Dhara Committee and Others, 2004 (7) SCC 708, laying down law to the effect that a Civil Suit No.636/21 Sh. Maqsood Ali v Sh. Parvej Ahmed & Ors.

Page no. 29 of 30 plaintiff can only succeed on the strength of his case and not the weakness found in the case of the defendant. Also, it is clarified that out of the many aspects that show that the claim of the plaintiff qua the suit property is dishonest, the most important aspect is that in the aforesaid second suit as well as in this suit, the plaintiff did not seek any money in the shape of usage charges, rent or damages for the unauthorized use of the suit property by the defendants no. 1 to 3, which is remarkably unusual/peculiar, given the claim of the plaintiff that he is the owner of the suit property since 06.06.1995.

44. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room. 

Announced in open Court                              (Jay Thareja)
today on 01.07.2022                         Ld. ADJ­07, South East District,
                                                  Saket Courts/Delhi




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