Delhi District Court
Vijay Kumar (Now Deceased) vs O.P. Bhalla on 13 July, 2023
IN THE COURT OF DR. HARDEEP KAUR,
ADDITIONAL DISTRICT JUDGE-04, SOUTH DISTRICT
SAKET COURTS, NEW DELHI.
Old Suit No.: CS DJ 113/2006
New Suit No.:CS DJ 781-2017
CNR No.: DLST01-007020-2017
IN THE MATTER OF:
Vijay Kumar (now deceased)
Through his LR
Dhruv Dudeja
S/o Vijay Kumar
R/o B-58-D, Gangotri Aptt.
Alaknanda, New Delhi-10019.
...Plaintiff
Versus
1. O.P. Bhalla
S/o Late Shri Chuni Lal
2. J.R Bhalla
S/o Late Shri Chuni Lal
Both R/o 158, Keshav Kunj
H-3 Vikas Puri
New Delhi-110018.
3. Kamla Bhalla
W/o Shri P.P Bhalla
4. Yuvraj Bhalla
S/o Late Shri P.P Bhalla
5. Pankaj Bhalla
S/o Late Shri P.P Bhalla
(Defendant no.3 to 5 all
R/o 1565, 1st Floor Outram Line
Kingsway Camp
Delhi.
...Contested Defendants
CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 1 of 21
6. Sudesh Sharma
W/o Late Sh. S.K Sharma
R/o RZ 274/17,
Tuglakabad Extension
New Delhi-62
7. Jai Kishan Sharma
S/o late Shri Ram Richpal Sharma
R/o house No.F-197, Badarpur,
New Delhi-44
8. Ranjit Singh
S/o Shri Jatinder Singh
R/o 316
Double Storey, New Rajender Nagar
New Delhi.
9. Santosh Dudeja
W/o. Vijay Kumar
R/o. B-58 D,
Gangotri Enclave,
Alaknanda, Kalkaji,
New Delhi-110019.
10. Puneet Dudeja
S/o. Vijay Kumar
R/o. B-58 D,
Gangotri Enclave,
Alaknanda, Kalkaji,
New Delhi-110019.
11. Kunal Dudeja
S/o. Vijay Kumar
R/o. B-58 D,
Gangotri Enclave,
Alaknanda, Kalkaji,
New Delhi-110019.
...Proforma Defendants
CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 2 of 21
Date of institution of the suit : 18.08.2006
Date of pronouncement of judgment : 13.07.2023
SUIT FOR DECLARATION OF TITLE AND
PERMANENT INJUNCTION
JUDGMENT
1. By this judgment, this court shall decide the preliminary issue framed by the Hon'ble High Court of Delhi vide order dated 14.07.2017 "Whether the suit of the plaintiff is barred by Section 11 CPC in view of the judgment dated 19.08.2004 in Suit No.973/2002, titled as 'O.P Bhalla Vs Ms. Sudesh Sharma & Ors.".
2. The brief facts of the case as stated in the plaint are that the plaintiff has filed the present suit for Declaration of Title and Permanent Injunction in respect of property bearing No. RZ-274, Gali No.17, Tuglakbad Extension, New Delhi-110 063, admeasuring 100 sq.yds on the western side (herein referred to as 'Suit Property'). Plaintiff is the owner and in possession of the aforesaid suit property. Smt. Ishwari Devi (mother of defendant no.1 and 2 and late Sh. P.P Bhalla) was the owner of plot measuring 200 sq.yds bearing no. RZ-273, Gali No.17, Tuglakabad Extension, New Delhi (hereinafter referred as to as 'original plot') having purchased the same for consideration of Rs.6800/- from one Sh. Somnath son of Sh. Boota Ram, R/o 444, Rampura, Delhi vide agreement to sell, receipt, affidavit etc. dated 28.10.1977.
3. On 16.05.1988 late Smt. Ishwari Devi sold the aforesaid CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 3 of 21 original plot in two equal parts (100 sq.yds. each). Out of original plot measuring 200 sq.yds., a plot of 100 sq.yds. one part admeasuring 100 sq.yds. on the Eastern side with temporary structure of two rooms over it was sold to one Sh. J.S Arya for a consideration of Rs.30,000/- and another part ad-measuring 100 sq. yds. on the Western side was sold to one Smt. Sudesh Sharma, wife of late Sh. S. K. Sharma for a consideration of Rs.30,000/- on 16.05.1988 and all the relevant documents i.e. GPA, Agreement to Sell, WILL, Receipt, Affidavit with respect to the western half (suit property) of the original plot were executed by Smt. Ishwari Devi in favour of Smt. Sudesh Sharma at the time of its sale to Smt. Sudesh Sharma.
4. On 26.03.1990 Smt. Sudesh Sharma sold the suit property to one Sh. Jai Kishan Sharma, son of late Sh. Ram Richpal Sharma, R/o H.No.F-197, Badarpur, New Delhi. On 28.02.1992, Sh. Jai Kishan sold the suit property to one Sh. Ranjit Singh, son of Sh. Jatinder Singh, R/o 316, Double Storey, New Rajender Nagar, New Delhi. On 24.05.1994, Sh. Ranjit Singh sold the suit property to the plaintiff and plaintiff had constructed a three storeyed house over it after spending Rs.6,50,000/-. Plaintiff also got the electric and water connection in his name and started residing there. The defendant no.1 and 2, son of Smt. Ishwari Devi after her death had filed a suit for possession under Section 6 of Specific Relief Act for recovery of the said original plot which was sold to Smt. Sudesh Sharma and Sh. J.S Arya. Thereafter, Smt. Sudesh Sharma sold the property to defendant no.7 and ultimately plaintiff purchased the same. Shri O.P Bhalla CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 4 of 21 and Sh. J.R Bhalla, plaintiffs in the aforesaid suit (now defendants in the present suit) had falsely alleged that Sh. S.K Sharma and K.K. Khanna in collusion with their brother P.P Bhalla (defendant no.3 in the said suit) had grabbed the physical possession of the original plot of Smt. Ishwari Devi and had dis- possessed the deceased mother without her consent. In the said suit, Sh. P.P Bhalla (defendant no.3 in the said suit) never appeared in the case and was proceeded ex parte. The defendant no. 2 Sh. K.K Khanna was also proceeded ex parte. Sh. S.K Khanna (defendant no.1 in the said suit) had taken the preliminary objection to this effect in his written statement and also taken the objection for mis-joinder and non-joinder of the necessary parties in the said suit. Sh. S.K. Sharma (defendant no.1 in the said suit) submitted that since the suit property is in the name of Smt. Sudesh Sharma, therefore, she was a necessary party in that suit. During his life time, Sh. S.K.Sharma had applied for amendment of his written statement in August 1999 and also an application u/o 6 Rule 17A in May 1996, which could not be decided in his life time and has been disposed off by the court of Ld. Civil Judge, Tis Hazari Delhi on 09.02.2004.
5. After the death of Sh. S.K. Sharma (defendant No.1 in the said suit) his wife Smt. Sudesh Sharma alongwith her son and daughter were brought on record as his legal representative. Smt. Sudesh Sharma who filed her written statement claiming her independent title and that she was the sole owner of the suit property having purchased the same from Ishwari Devi and has been ultimately transferred to the plaintiff in that capacity, who is CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 5 of 21 in possession of the same as owner thereof. This written statement was rejected by the court of Ld. Civil Judge, Delhi vide order dated 28.07.2003.
6. The plaintiff has a valid title over the suit property and is in possession as owner of the suit property and enjoying the constructed property since its purchase without any interference and objection from any corner. Assuming without accepting that the sale in favour of Smt. Sudesh Sharma, defendant no.6 is invalid even then the plaintiff has acquired title by adverse possession and is entitled to retain the possession as such. Defendant nos. 1 to 5 are trying to dispossess the plaintiff in execution of the decree dated 19.08.2004 in Suit No.973/2002, to which neither the plaintiff nor his predecessor in title have been a party (except that Smt. Sudesh Sharma, defendant no.6 was a party, not in her own/ personal capacity, but as legal representative of her deceased husband and was refused to plead and oppose the suit in her personal capacity setting up her independent title). Hence, the plaintiff has filed the present suit.
7. Written statement filed by the defendant no.1 & 2 wherein the averments made in the plaint have been denied. The defendant no.1 & 2 have taken preliminary objections that present suit is an abuse of the process of law. Plaintiff has no locus standi to institute the present proceedings. No relief as sought can be claimed against the defendants. The present suit is not maintainable as barred by the principles of Resjudicata. Without prejudice and not admitting the assertions as made in the CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 6 of 21 plaint, the plaintiff is intending to enforce his rights as subsequent purchaser, deriving his interest through the various false and fabricated documents through one Ms. Sudesh Sharma. It has been decided in aforesaid suit no.973/02, that Ms. Sudesh Sharma has no right or interest in respect of the subject property. As the said judgment has remained unchallenged it has become final and binding between parties under whom they or any of them claim litigating under the same title. Hence, the present suit is liable to be dismissed.
8. The present suit is not maintainable as plaintiff cannot rectify or cure the defect of title through this declaratory suit. Plaintiff is claiming his right on the basis of series of alleged transactions of transfer of the subject immovable property. Without admitting the alleged transferees having not challenged their right, no discretionary relief of declaration is maintainable against the defendants. The plaintiff cannot seek relief to be indemnified from the alleged persons with whom he has stated to have transacted. The suit is liable to be dismissed as there is no proper plaint on the record. The plaint and the affidavit in support thereof having not been properly verified as per order IV Rule 15 and the supporting affidavit is not properly verified as per Order 19 Rule 3 of the CPC. Hence, on account of patent defect, the suit is liable to be dismissed.
9. In para-wise reply on merits, it is stated that plaintiff is neither owner nor in legal possession of property bearing no. RZ- 273, Gali No.17, Tuglaqabad Extn., New Delhi (wrongly CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 7 of 21 mentioned as RZ-274, Gali No.17, Tuglaqabad Extn., New Delhi) measuring 100 sq.yd. As per the judgment in aforesaid suit no. 973/02, concerning the subject property, the defendants no.1 & 2 are to be restored back the possession of property bearing RZ-273, Gali No.17, Tuglaqabad Extn., New Delhi. Plaintiff does not have any right or interest in the suit property. The present suit is barred by the principles of resjudicata and lis- pendens, as determined by Suit No.973/02 titled "Sh. O.P Bhalla and another vs Ms. Sudesh Sharma and others".
10. It is stated that late Smt. Ishwari Devi was the owner of the plot measuring 200 sq.yd. bearing no. RZ-273, Gali No.17, Tuglaqabad Extn., New Delhi. However, the title documents i.e. agreement to sell, receipt, affidavit etc. dated 28.10.1977 are forged and fabricated. The signatures purported to be shown on the alleged documents are not of deceased Smt. Ishwari Devi nor she ever executed any document bearing her thumb impression. On 16.05.1988, late Smt. Ishwari Devi had not sold the original plot in two equal parts. Late Smt. Ishwari Devi had acquired a plot of land measuring 200 sq.yd. at the aforesaid address in October 1977 and in the year 1978 she constructed and improvised house consisting of two rooms, latrine, bath and a boundary wall. The said house is duly entered in the record of the MCD in her name as assessee /owner. On 09.05.1988, Smt. Ishwari Devi, the mother of the defendants was admitted in the ICU at AIIMS, New Delhi and the property was kept locked during the said period of her illness. Smt. Ishwari Devi succumbed to her illness on 30.05.1988 at the hospital. Sh. S.K. CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 8 of 21 Sharma, husband of Smt. Sudesh Sharma and Sh. K.K Khanna who were occupants of the houses falling on either side of the property, taking advantage of the property being unoccupied grabbed its physical possession, in collusion with Sh. P.P Bhalla.
11. The plaintiff is estopped from contending anything contrary to the findings and observations as made in the aforesaid judgment dated 19.08.2004. The plaintiff is bound as per the principle of resjudicata and lis pendens. Smt. Sudesh Sharma had no right and interest in the property and as such any transaction entered on the basis of any illegality cannot have a stamp of approval when the matter has been conclusively decided and has remained unchallenged by Smt. Sudesh Sharma. Smt. Sudesh Sharma having not challenged the judgment / decree as passed in the aforesaid suit, nothing can be urged in contrary thereto. The plaintiff cannot claim to acquire title on the basis of manipulated, forged, irrelevant and illegal documents. The predecessor of the plaintiff did not have any right in the subject property thereby no right could have been transferred in favour of the plaintiff. Hence, it is prayed that suit is liable to be dismissed.
12. In the Replication, the plaintiff has denied the contents of the Written Statement. Plaintiff has reiterated & reaffirmed the contents of the plaint. It is stated that suit is not barred by principles of Res judicata as the judgment and decree dated 19.08.2004 passed in suit no.973/02 does not bind Ms. Sudesh Sharma from whom the plaintiff derives his title, as Ms. Sudesh CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 9 of 21 Sharma was in the array of defendant / judgment debtor, not in her own individual capacity. Sh. S.K. Sharma, husband of Ms. Sudesh Sharma was the defendant in the said suit, who died during the pendency of the suit and thereafter in his place Ms. Sudesh Sharma was substituted as legal representative. The plaintiff is within his legal right to file the present suit for declaration of title. The said suit was under section 6 of the Specific Relief Act is a summary suit in as much as the enquiry in the suit under Section 6 is confined to finding out the possession and dispossession within a period of six months from the date of the institution of the suit ignoring the question of title. Sub-Section (3) of Section 6 provides that no appeal shall lie from any order or decree passed in any suit instituted under this section. No review of any such order or decree is permitted. Hence, it is prayed that present suit be decreed in favour of plaintiff and against the defendants.
13. Vide order dated 14.07.2017, with the consent of the parties Hon'ble High Court of Delhi has framed the following preliminary issue:
'Whether the suit of the plaintiff is barred by Section 11 CPC in view of the judgment dated 19.08.2004 in suit no. 973/2002 titled as 'O.P Bhalla Vs. Ms. Sudesh Sharma & Ors.'
14. This Court has arguments addressed by the parties and perused the record carefully.
15. It is pertinent to mention here that plaintiff has expired CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 10 of 21 during the proceedings of the present suit. Vide order dated 15.03.2023, application of one of the LRs of plaintiff under Order XXII Rule 3 CPC read with Order XXII Rule 9 CPC was allowed and amended memo of parties was taken on record.
16. It is relevant to reproduce here Section 11 of CPC which is as under:
11.Res judicata.-
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised' and has been heard and finally decided by such Court.
Explanation I.-The expression " former suit " shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II.-For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.-The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV.-Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.-Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI.-Where persons litigate bona fide in respect of a public right or of a private right claimed in CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 11 of 21 common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
17. This Court has relied upon the judgment titled as "Sheodan Singh Vs. Daryao Kunwar, 1966 (3) SCR 300" , in which Hon'ble Supreme Court held that "....a plain reading of Section 11 shows that to constitute a matter Res judicata, the following conditions must be satisfied, namely--
"(i) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit;
(ii) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim;
(iii) The parties must have litigated under the same title in the former suit;
(iv) The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised; and
(v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the first suit."
18. Record shows that defendant no.1 & 2 herein had filed suit bearing no.973/2002 titled as "O. P. Bhalla Vs. Sudesh Sharma & Anr." hereinafter called the former suit. The suit has been decreed on 19.08.2004 and it has been held by the Court that defendants (predecessor in interest of plaintiff) are hereby ordered to restore the possession of property bearing no. RZ-273, Gali No.17, Tuglakabad Extn., New Delhi-62 to the plaintiffs (defendant no.1 & 2 herein).
19. In case titled as "Isher Singh Vs. Sarwan Singh & Ors. AIR 1965 SC 948" , Hon'ble Apex Court held that to determine CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 12 of 21 as to whether the decision of former suit operates as Res judicata and it is barred, to determine this the matter directly and substantially in issue in the former suit, this aspect is to be decided on the basis of (a.) on the pleadings in the former suit, (b.) the issue struck therein and (c.) and decision in the suit.
20. Pleadings in the Former Suit:
20(i). Plaint: (a) Defendant no.1 & 2 and predecessor in interest of
defendant no.3, 4 & 5 i.e. Late Sh. P. P. Bhalla are brother and sons of Late Smt. Ishwari Devi who acquired the plot of land ad- measuring 200 sq. yds. bearing no. RZ-273, Gali No.17, Tuglakabad Extn., New Delhi-62 in October, 1997.
(b) Late Smt. Ishwari Devi i.e. deceased mother of defendant no.1 & 2 and grand mother of defendant no.3 to 5 acquired property in October, 1977 and in 1978 she constructed and improvised house comprising of two rooms, toilet, bath and boundary wall and the house was duly entered in the record of MCD and she exercised her rights as owner by living in the suit property as its owner. In the year, 1983 defendant no.1 was allotted flat by the NDMC at Nauroji Nagar. Smt. Ishwari Devi shifted to the flat along with his son i.e. defendant no.1 while the suit property was kept for religious/ congregational purposes while possession remained with her.
(c) Due to her illness, she was admitted to ICU of AIIMS on 09.05.1988. Resultantly, the property was kept locked during the period of her illness. She succumbed to her illness on 30.05.1988.
CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 13 of 21
(d) One Sh. S. K. Sharma and Sh. K. K. Khanna who were occupants of houses falling on either side of property being aware and in knowledge of demise of Smt. Ishwari Devi found opportunity to move in the suit property and take its possession in collusion with defendant no.3 i.e. P. P. Bhalla (brother of plaintiffs).
(e) Sh. S. K. Sharma and Sh. K. K. Khanna were issued and served a notice dated 18.07.1988 by defendant no.1 & 2 herein but they failed to handover physical possession of the suit property. Resultantly a suit bearing no.973/2002 under Section 6 of Specific Relief Act was instituted by the defendant no.1 & 2 herein against Sh. S. K. Sharma, Sh. K. K. Khanna and Sh. P. P. Bhalla (brother of defendant no.1 & 2 herein).
20(ii). Written Statement:
It is stated in the written statement that one Sh. J. S. Arya is a necessary party to the suit inasmuch as he in occupation of one-half portion of the property in dispute towards the Eastern side with whom also the deceased mother of the plaintiffs no.1 and 2 and defendant no.3 had entered into an Agreement to Sell on 16.05.1988 and had executed WILL and Power of Attorney. Similarly the replying defendant no.1's wife is also a necessary party as the plaintiff no.1, 2 and defendant no.3's mother had entered into an Agreement to Sell on 16.05.1988 of one half portion of the suit property towards the Western side in consideration for a sum of Rs.30,000/- and to whom the replying defendant no.1's wife Smt. Sudesh Sharma paid a sum of Rs.30,000/- through Bank Draft dated 20.05.1988 and to whom CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 14 of 21 the said mother of the plaintiffs no.1 and 2 and defendant no.3 had handed over possession. The possession of the property towards the Eastern side is with Sh. J. S. Arya and that of Western Side is with Smt. Sudesh Sharma, replying defendant no.1's wife. The suit against the replying defendant is, therefore, not maintainable and is liable to be dismissed.
20(iii). On completion of pleadings, following issues have been framed by the Ld. Civil Judge, Delhi:
Issue No.1: Whether the suit is bad for non-joinder of necessary parties as alleged in the written statement? OPD Issue No.2: Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction as alleged in para 3 of the written statement? OPD Issue No.3: Whether this Court has no pecuniary jurisdiction to try this suit? OPD Issue No.4: Whether the suit has been filed in collusion with defendant no.3? OPD Issue No.5: Whether the possession of the property in the suit has been handed over by the mother of plaintiff no.1 and defendant no.3 in consequence of an Agreement dated 16.05.1988 as alleged in para no.2 of the preliminary objections of written statement? OPD Issue no.6: Whether the defendant no.1 & 2 dispossessed the deceased mother of the plaintiff without her consent and otherwise in due course of law from the suit property as alleged in the plaint.? OPP Issue no.7: Whether the plaintiffs are entitled to recover possession of the suit property from the defendant? OPP Issue No.8: Relief.
21. Record shows that during the pendency of the former suit bearing no.973/2002, Sh. S. K. Sharma was expired and all his legal heirs were impleaded including his wife Smt. Sudesh Sharma from whom plaintiff herein in the present suit drive his right. So upon demise of Sh. S. K. Sharma, Smt. Sudesh Sharma CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 15 of 21 submitted her written statement in the former suit, she claimed her own independent title over the suit property. But her written statement was struck down vide order dated 28.07.2003 by the Ld. Civil Judge, Delhi observing that ".....the plaintiff thus is right in asserting that written statement of Smt. Sudesh Sharma in capacity of her being plaintiff no.4 being beyond the facts pleaded by defendant no.1 in his written statement deserves to be struck off. Record further shows that Smt. Sudesh Sharma did not challenge the order dated 28.07.2003 passed in the former suit i.e. 973/2002 nor does she institute any proceedings establishing her right or title in the suit property".
22. The former suit was decreed in favour of defendant no.1&2 herein. It is relevant to reproduce here findings on issue no.5 & 6 in the former suit i.e. ISSUE No.5:
26. In order to prove issue no.5 in their favour, the defendants shall have to prove that they were handed over the possession of the suit property in pursuance of an Agreement to Sell, WILL and General Power of Attorney dated 16.05.1988.
27. The defendants in order to prove the same, examined one Sh. J. S. Arya as DW1. He deposed that the suit property is of 200 square yards plot which was owned by Smt. Iswari Devi and he purchased 100 square yards out of the same on the Eastern side on 16.5.88 and the remaining portion of the western side was purchased by Smt. Sudesh Sharma, wife of defendant no.1 on the same date. He further deposed that plaintiff no.1 had been present throughout the negotiations of this deed. He further deposed that he went to the house of plaintiff no.1 along with the papers comprising of 1. Agreement to Sale,
2. Power of Attorney, 3. WILL, 4. Affidavit, 5. Receipt whereafter he and defendant no.1 accompanied plaintiff no.1 to AIIMS where his mother was admitted inside the ICU where only the plaintiff no.1 was allowed to go inside. Plaintiff no.1 took the papers inside and after some CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 16 of 21 time, came back and showed that he had brought those papers duly signed by his mother. He further deposed that plaintiff no.1 told them to make the payment of the sale consideration of Rs.30,000/- each by bank draft and only then he would hand over the papers to them. The payment was made by them vide two bank draft on 20.5.88 bearing no.155358 and 155359 of the Bank of Maharashtra, Kalkaji Branch. These bank drafts were duly cleared through the clearance of United Bank of India on 24.5.88.
The certificate of clearance is mark D1. He further deposed that he has brought original documents mark D2 is the photocopy of the Power of Attorney mark D3 is the photocopy of the Agreement to Sell mark D4 is the photocopy of Affidavit mark D5 is the photocopy of the WILL and mark D6 is the photocopy of the Receipt executed in his favour by Smt. Ishwari Devi. He further deposed that possession was taken over by him on 24/25.5.88 and was handed over to him by plaintiff no.1. He further deposed that on the same date Smt. Sudesh Sharma i.e. the wife of defendant no.1 also took the possession of the suit property of falling in her portion.
28. During his cross-examination, he deposed that he did not know Smt. Ishwari Devi and through defendant no.1 and 2, he approached plaintiff no.1 for the purchase of the suit property. He further deposed that he never met Smt. Ishwari Devi but instead met plaintiff no.1 as plaintiff no.1 represented that he was the sole incharge of everything. He further deposed that he did not ask for any letter from O. P. Bhalla to show whether he was authorize to enter into transaction on behalf of the Smt. Ishwari Devi. He further deposed that there is nothing in writing with him to show as to how the possession of 100 square yards of the disputed premises was handed to him.
29. From the above evidence it emerges that the alleged GPA, Agreement to Sale and other documents were allegedly executed by Smt. Iswari Devi in the ICU at AIIMS, Delhi, this is in contradiction to the stand taken by the defendant no.1 in written statement that the documents were executed in General Ward of AIIMS. The original of these documents were not produced by the defendant although it is written in his deposition that he has brought the original as the document's photocopy has been placed on record and instead of exhibiting the same, it has been marked. None of the witnesses to these documents were examined by the defendants. In these circumstances, where it is clear that the thumb impression on the documents were not appended in front of DW1, he cannot CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 17 of 21 prove these documents. Further, although, the witnesses to the execution of these documents have not been examined but even otherwise, these documents cannot be trustworthy because according to the DW1, deceased Smt. Iswari Devi had allegedly put her thumb impression only in front of Sh. O. P. Bhalla i.e. plaintiff no.1. Therefore, the question of appending the thumb impression on the document in front of the two witnesses has shown in the documents does not arise. Furthermore, it is to be seen that the receipt produced by the witness, Sh. J. S. Arya of Rs.30,000/- in his favour which was allegedly, executed by Smt. Iswari Devi and is Mark D6 shows the amount to be received in cash from Sh. J. S. Arya i.e. DW1 whereas DW1 deposed that he and wife of defendant no.1 had made the payment through bank draft the clearance certificate of which is mark D1. Thus, the document produced by the witness contradicts the oral testimony of the witness and as such find the same to be not trustworthy. Therefore, in my considered opinion the defendants by preponderance of probabilities, have failed to prove the execution of documents dated 16.5.88 by Smt. Ishwari Devi in their favour.
30. No such documents have been produced on behalf of the defendant no.1 and not even placed on record. In view of the above discussion. I am of the considered opinion that by preponderance of probabilities, the defendants have failed to prove that they were handed over the possession by mother of plaintiffs no.1 and 2 and defendant no.3 in consequence of an agreement dt. 16.5.88, issue no.5 is accordingly decided against the defendants.
ISSUE NO.6:
31. As while deciding issue no.5, it has been found that the possession was not handed over to defendant no.1 and 2 in pursuance of the agreement dt. 16.5.88 and otherwise the defendants have failed to show that they came into possession of the suit premises in due course of law, I am of the considered opinion that the deceased mother of the plaintiffs was dispossessed by the defendant no.1 and 2 without her consent which. It is highly improbable, she could have given in state of health in which she was at the relevant time Issue no.6 is accordingly decided in favour of the plaintiffs.
CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 18 of 21
23. This Court has relied upon the judgment titled as "Vithal Yeshwant Jatha Vs. Sikander Khan Makhtum Khan Sir Desai, AIR 1963 SC 385" , in which Hon'ble Supreme Court held in para 10 which is as under:
"......it is well settled that if the final decision in any matter in any issue between the parties is based by a Court on its decision on more than one point- each of which by itself would be sufficient for the ultimate decision, the decision on each of these points operates as Res judicata between the parties."
24. It is settled law that Res judicata not only affects party to the suit but there privies also i.e. person claiming under them. Therefore, a person deriving his title would be bound by the decision rendered therein.
25. Thus rights of persons through whom plaintiff herein is deriving his right has been held in the former suit to be having a possession as of trespasser. And as such rights as claimed in the present suit through persons against whom a finding has already been arrived to that of having occupied suit property illegally cannot be re-agitated by instituting the present suit. The findings in respect of trespassory possession in the former suit cannot be permitted to be re-agitated and given a new form by seeking relief of declaration.
26. In case titled as "Mathura Prasad Bajoo Jaiswal and Ors. Vs. Dossibai N. B. Jeejeebhoy, AIR 1971 SC 2355"
Hon'ble Supreme Court held in para 5 that "....... a previous decision of a competent Court on facts which are the foundation CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 19 of 21 of right and the relevant law applicable to the determination of the transaction which is the source of the right is res judicata."
27. In case titled 'Sulochana Amma vs Narayanan Nair', 1994 (2) SCC 14, the Apex Court held that the expression 'the Court of limited jurisdiction' in Explanation VIII is wide enough to include a court whose jurisdiction is subject to pecuniary limitation and other cognant expression analogous thereto. Therefore, Section 11 is to be read in harmony with Explanation VIII. The result that would follow is that a matter or an issue which had arisen directly and substantially between the parties or their privies and decided finally by a competent Court or Tribunal, though of limited or special jurisdiction, which includes pecuniary jurisdiction, will operate as Res judicata in a subsequent suit or proceeding, not withstanding the fact that such Court of limited or special jurisdiction was not a competent court to try the subsequent suit.
The expression 'competent to try' means competent to try the subsequent suit if brought at the time the first suit was brought. In other words, the relevant point of time for deciding the question of competence of the Court is the date when the former suit was brought and not the date when the subsequent suit was filed.
28. In case titled as 'Kushal Pal vs Mohan Lal', 1976 (1) SCC 449), Hon'ble Apex Court held that the expression 'heard and finally decided' means a matter on which Court has exercised its judicial mind and has after arguments and consideration come CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 20 of 21 to a decision on a contested matter.
29. The Court in former suit had clearly held that defendants (plaintiff herein) failed to prove that they were handed over the possession of the suit property by mother of plaintiff no.1 & 2 (defendant no.1&2 herein) in consequence of an Agreement to Sell dated 16.05.1988. As already held in former suit that Smt. Sudesh Sharma had no legal right and interest in respect of suit property, the judgment/ decree passed in former suit bearing no.973/2002 has become final and binding between the parties under whom LR of plaintiff herein is claiming to derive his rights. Therefore, LR of plaintiff cannot in the present suit, again re-agitate to seek declaratory relief of ownership. In view of the aforesaid discussion, the preliminary issue is decided against LR of the plaintiff.
30. In the light of the aforesaid judgments and discussion, this Court is of the considered view that present suit is barred by Res judicata, therefore, present suit stands dismissed.
No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room.
Typed to the dictation directly, DR Digitally signed by DR HARDEEP corrected and pronounced in the HARDEEP KAUR KAUR Date: open Court on 13.07.2023. 2023.07.14 15:36:31 +0530 (Dr. Hardeep Kaur) Additional District Judge-04 South District, Saket Courts, New Delhi CS DJ 781/2017 Vijay Kumar through his LR Dhruv Dudeja Vs. O. P. Bhalla & Ors. Page no. 21 of 21