Sarabjit Singh vs Surinder Mohan Tarun on 22 April, 2024

[Cites 3, Cited by 0]

Delhi High Court

Sarabjit Singh vs Surinder Mohan Tarun on 22 April, 2024

1. By way of present application, the applicant/Parminder Singh Garcha, SPA Holder of legal heirs of the plaintiff, seeks direction to the Court Commissioner to take the physical possession of the Suit Property No. C-9, Gulmohar Park, New Delhi and evict Ms. K. Jeevan Rita Murthy from the suit property.

2. It is submitted in the application that the plaintiff had filed the Suit for Possession Permanent Injunction and Mesne Profits against the defendant in respect of the aforesaid suit property.

3. Vide Order dated 16.07.2010, the Summons was issued to the defendant who had put his appearance.

4. It is submitted that during the pendency of the present Suit, the plaintiff expired on 17.08.2021. The defendant who was the bachelor, also died on 16.11.2021 and was not survived by any Class-I legal heirs.

Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 1418/2010 Page 1 of 9 Signing Date:01.05.2024 18:45:45

5. Mr. Parminder Singh Garcha, the SPA Holder of the legal heirs of the deceased plaintiff who have been substituted as plaintiffs, had stated that he visited the suit property sometime in January, 2022 and was shocked to find the name plate of Suraj Saxena, Advocate of the defendant, being put outside the suit property and he was claiming to be in possession thereof. Another name plate of "Basant Ram Shanti Devi Charitable Trust" was also displayed outside the suit property. On enquiry, no Trust could be traced there.

6. Thereafter, the Application No. I.A. 3209/2022 under Order XL Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC, 1908") was filed by the plaintiff for appointment of the Receiver. The application was allowed vide Order dated 09.08.2023, and Mr. Peeyossh Kalra, Advocate was appointed as the Receiver and he was directed to take physical possession of the suit property.

7. Thereafter, Ms. K. Jeevan Rita Murthy filed the Review Petition No. 235/2023 against the Order dated 09.08.2023, claiming to be in possession of the suit property by virtue of the Will dated 08.11.2021 of deceased defendant. This Court vide Order dated 06.09.2023 on the "No Objection"

given on behalf of the plaintiff, permitted the Review Petitioner/Ms. K. Jeevan Rita Murthy to continue to reside in the suit property till the next date of hearing, subject to her giving an undertaking that she shall not create any right, title and interest in the suit property. The Court Commissioner on the very same day permitted the Review Petitioner/Ms. K. Jeevan Rita Murthy along with her son and daughter, to reside in the suit property till the next date of hearing.

8. In the meanwhile, the Application No. I.A. 19418/2022 under Order Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 1418/2010 Page 2 of 9 Signing Date:01.05.2024 18:45:45 XXII Rule 4 read with Section 151 of CPC, 1908 was filed by Ms. K. Jeevan Rita Murthy for substitution as legal representative of the deceased defendant, however, the said application was dismissed vide Judgment/Order dated 15.01.2024.

9. Therefore, the prayer is made that the Court Commissioner may be directed to take over the physical possession of the suit property by evicting Ms. K. Jeevan Rita Murthy from the suit property.

10. Submissions heard.

11. The genesis of the present case lies in the purchase of the suit property by the deceased plaintiff from the deceased defendant on the basis of Agreement to Sell, GPA, Possession Letter, Affidavit, Receipt and a Will dated 15.03.1982. The original Perpetual Sub-Lease Deed dated 23.01.1971 of the suit property was also handed over to the plaintiff by the defendant. Subsequently, the purported Conveyance Deed dated 30.09.2008 was also handed over to the plaintiff but subsequently it came to the knowledge of the plaintiff that this alleged registered Conveyance Deed was a fabricated document for which he got an FIR No. 97/2010 dated 24.06.2010 registered at Police Station Sadar District Roop Nagar, Punjab.

12. According to the plaintiff, in June, 2008 after apprising the police about the entire situation, the plaintiff had gone to Punjab but on his return sometime in July, 2009, he found that the possession has been taken over by the defendant. The plaintiff thus filed the present Suit for Possession, Permanent Injunction and Mesne Profits.

13. While the plaintiff was contesting for his legitimate rights of possession, the defendant who was the bachelor, died on 16.01.2021 leaving behind no legal heirs. Sad it is that various people rushed in to claim Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 1418/2010 Page 3 of 9 Signing Date:01.05.2024 18:45:45 ownership in the suit property. The first claimant was none other than Sh. Suraj Saxena who was the counsel for the defendant during his lifetime.

14. The second purported claimant whose name got displayed outside the suit property was "Basant Ram Shanti Devi Charitable Trust" which according to the plaintiff is not existent but is now alleged to be managed by none other than Suraj Saxena, erstwhile Advocate for the deceased defendant.

15. The third set of claimants was the Class-II legal heirs who have been now impleaded in place of the deceased defendant.

16. The fourth person to have claimed to have become owner is Ms. K. Jeevan Rita Murthy who claimed to be in possession of the suit property as an owner by virtue of the Will dated 08.11.2021 of deceased defendant made in her favour.

17. However, this Court vide Order dated 09.08.2023 observed all these facts and appointed Mr. Peeyoosh Kalra, Advocate as the Receiver in order to prevent the suit property from being dissipated while the dispute was pending. Thereafter, Ms. K. Jeevan Rita Murthy filed the Review Petition No. 235/2023 against the Order dated 09.08.2023. This Court vide Order dated 06.09.2023 on the „No Objection' being given on behalf of the plaintiff, permitted the Review Petitioner/Ms. K. Jeevan Rita Murthy to continue to reside in the suit property on humanitarian grounds till the next date of hearing i.e., 06.10.2023, subject to her giving an undertaking that she shall not create any right, title and interest in the suit property. Because of this confusion of there being different claimants, the suit continued and the benefit has enured to Ms. K. Jeevan Rita Murthy who has continued in the suit property till date though she was permitted to be in suit premises till Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 1418/2010 Page 4 of 9 Signing Date:01.05.2024 18:45:45 next date i.e. 06.10.2023.

18. The Order dated 06.09.2023 was categorical in permitting Ms. K. Jeevan Rita Murthy to be put in the suit property till the next date of hearing i.e., 06.10.2023. Ms. K. Jeevan Rita Murthy has already overstayed in the suit property despite the stringent condition imposed upon her while permitting her to remain in the suit property vide Order dated 16.09.2023.

19. In the circumstances, the Receiver is hereby directed to take back the possession of the suit property from Ms. K. Jeevan Rita Murthy within three weeks from the date of this Order. In case the suit property is found locked or there is any resistance offered by Ms. K. Jeevan Rita Murthy, the Receiver shall seek the assistance from the local Police and the SHO concerned shall provide the necessary Police force for implementation of this Order. The possession shall remain with the Receiver till further Orders.

20. Accordingly, the present application is allowed. I.A. 17178/2023 (u/S 5 of Limitation Act, 1963 r/w Section 151 of CPC, 1908)

21. By way of present application, the applicant/Suraj Saxena seeks condonation of 273 days‟ delay in re-filing O.A. 84/2023.

22. For the reasons and grounds stated in the present application, the application is allowed, the delay of 273 days in re-filing O.A. 84/2023 is hereby condoned.

23. The application is disposed of.

O.A. 84/2023 (u/Ch.II Rule 5 of Delhi High Court (Original Side) Rules, 1967 r/w Section 151 of CPC, 1908)

24. The present Chamber Appeal has been filed by Mr. Suraj Saxena against the Order dated 03.11.2022 passed by the Joint Registrar vide which Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 1418/2010 Page 5 of 9 Signing Date:01.05.2024 18:45:45 the Application No. I.A. 3025/2022 under Order XXII Rule 3 of CPC, 1908 filed by the applicant/Parminder Singh (SPA holder of the LRs of the plaintiff) has been allowed thereby impleading the following legal heirs of plaintiff/Sarabjeet Singh who expired on 17.08.2021: -

                                 (i)     Smt. Baljit Kaur, (wife),
                                 (ii)    Smt. Satinderpal Kaur, (daughter),
                                 (iii)   Shri Tejinder Pal Singh, (son),
                                 (iv)    Shri Rupinder Pal Singh, (son).

25. It is submitted in the present Appeal that the plaintiff/Sarabjeet Singh died on 17.08.2021 and the defendant/Surinder Mohan Singh died on 16.11.2021. Thereafter, the Application No. I.A. 3025/2022 under Order XXII Rule 3 of CPC, 1908 filed on behalf of the applicant/Parminder Singh Garcha, SPA Holder of legal representative of plaintiff, for the impleadment of the abovementioned legal heirs of plaintiff/Sarabjeet Singh.

26. The appellant/Suraj Saxena, who is claiming to be a legatee of the defendant by virtue of Will dated 15.05.2021 executed in his favour by deceased defendant, has challenged the locus of the aforesaid four legal heirs of the deceased plaintiff who have been impleaded vide Order dated 03.11.2022.

27. This appeal has been filed on the ground that the deceased plaintiff had given a complaint to the Police on 28.07.2009, wherein he had stated that he had sold the suit property to Parminder Singh Garcha vide registered Sale Deed dated 03.11.2008. Once the suit property has already been sold to Parminder Singh Garcha, the four legal heirs of the deceased plaintiff could not have been substituted as the plaintiffs. Thus, the aforementioned legal heirs who have been substituted in place of the deceased plaintiff, do not Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 1418/2010 Page 6 of 9 Signing Date:01.05.2024 18:45:45 have any locus to continue with the present Suit.

28. It is, therefore, submitted that the Order dated 03.11.2022 vide which Application No. I.A. 3025/2022 under Order XXII Rule 3 of CPC, 1908 filed by the applicant/Parminder Singh has been allowed thereby impleading the four legal heirs of plaintiff/Sarabjeet Singh, is liable to be set aside.

29. Submissions heard.

30. At the outset, it may be considered that Suraj Saxena who has filed the present Chamber Appeal was the erstwhile counsel of the deceased defendant, who is trying to set up a claim of being legatee of deceased defendant by virtue of the Will dated 15.05.2021. Pertinently, he is not a party to the present Suit and has no locus to file the present Appeal.

31. The appellant/Suraj Saxena had also vehemently contended that the present Suit does not disclose any cause of action. However, he confines this challenge to the Order dated 03.11.2022, which is only in respect of the impleadment of legal heirs of the plaintiff. Whether the Suit has merit or not, the same shall be considered at the appropriate stage.

32. It is not under challenge that the plaintiff is survived by the following four legal heirs who all have been impleaded as the legal heirs vide Order dated 03.11.2022: -

                                 (i)     Smt. Baljit Kaur, (wife),
                                 (ii)    Smt. Satinderpal Kaur, (daughter),
                                 (iii)   Shri Tejinder Pal Singh, (son),
                                 (iv)    Shri Rupinder Pal Singh, (son).

33. The appellant/Suraj Saxena had vehemently opposed the substitution of the legal heirs of the deceased plaintiff before the Joint Registrar and had taken the same plea of the alleged registered Sale Deed in favour of Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 1418/2010 Page 7 of 9 Signing Date:01.05.2024 18:45:45 Parminder Singh Garcha, despite which the aforesaid four legal heirs have been substituted in place of the deceased plaintiff.

34. According to the appellant/Suraj Saxena, it is Parminder Singh Garcha who became the owner by virtue of registered Sale Deed dated 03.11.2008 allegedly executed in his favour by the deceased plaintiff. However, Parminder Singh Garcha has joined the proceedings in the capacity of an SPA Holder of the four legal heirs. Shri Parminder Singh Garcha has placed on record the SPAs dated 08.12.2021 executed in his favour by the four legal heirs. If Parminder Singh Garcha was the registered owner of the suit property, then it is for him to raise a grievance in this regard. When he himself is not aggrieved, the objection taken by the appellant/Suraj Saxena, who is not even a party to the present, is without any merit. Therefore, the present Appeal is dismissed. I.As. 21704/2023 & 22504/2023 (Exemptions)

35. Allowed, subject to all just exceptions.

36. The applications are disposed of.

I.A. 10026/2022 (u/O XXII Rules 4 & 5 of CPC, 1908 by applicant/plaintiff for conducting an inquiry to ascertain the legal representatives of deceased defendant)

37. The present application has already been dismissed vide Order dated 15.01.2024.

I.A. 19418/2022 (u/O XXII Rule 4 r/w Order I Rule 10 & Section 151 of CPC, 1908 by applicant/K. Jeevan Rita Murthy for his substitution as legal representative of deceased defendant and bring him on record) I.A. 21703/2023 (u/O I Rule 10 r/w Section 151 of CPC, 1908 by applicant/Shambhu seeking his impleadment in the array of defendants as a necessary and proper party to present Suit)

38. The two captioned applications have already been dismissed vide Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 1418/2010 Page 8 of 9 Signing Date:01.05.2024 18:45:45 Order dated 15.01.2024.

I.A. 6723/2022 (u/O XXII Rule 4 r/w Order I Rule 10 & Section 151 of CPC, 1908 by applicant/Ved Vyas, Special Power of Attorney Holder of surviving legal heirs of the deceased defendant for bringing the applicants as the legal heirs of the deceased defendant on record)

39. The captioned application has already been allowed vide Order dated 15.01.2024.

CS(OS) 1418/2010 & I.As. 3210/2022, 17242/2023, 24977/2023, 25820/2023

40. List before the Joint Registrar for recording of evidence on 19.07.2024.

(NEENA BANSAL KRISHNA) JUDGE APRIL 22, 2024 S.Sharma Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 1418/2010 Page 9 of 9 Signing Date:01.05.2024 18:45:45

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