Delhi District Court
This Order Shall Dispose Of The ... vs Whether The Front Side Of The First Floor ... on 24 April, 2015
Chander Kant v Laxmi Chand Ex.No.75/2010/03
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL DISTRICT JUDGE 06: CENTRAL : DELHI.
Ex. No. 75/2010/03
Chander Kant ..... Decree Holder
Versus
Laxmi Chand & Ors. ..... Judgment Debtor
ORDER
1. This order shall dispose of the application of the applicant Sh. P.M. Sidharthan under Order 21 Rule 97 read with Section 151 CPC which is in the form of objections to the present execution petition. It is dated 2.5.07. As a matter of fact, the applicant/objector aforementioned also preferred to file additional objections dated 5.10.07.
2. This application was earlier considered by this Court as evident from order dated 15.2.2014. It was held that the objections can not Result: Application dismissed Page 1 of 17 Chander Kant v Laxmi Chand Ex.No.75/2010/03 be decided without evidence and hence, following issues were settled on 15.2.2014 viz;
1. Whether the front side of the first floor of property in question comprises of two flats as F30/F1 and F30/F2 as stated ? OP Objector.
2. Whether the decree in present execution petition is not an executable decree ? OP Objector.
3. Briefly stated, the suit of the Decree Holder seeking Specific Performance of Agreement to sell ExPW1/1 in respect of built up flat on the front side of first floor alongwith common easmentary rights from ground upto top floor of property no. F30, Dilshad Garden, Extension-I, Ilaka Shahdara Delhi, was decreed. During the interregnum, an interim injunction was passed restraining the JDs from transferring the suit flat till disposal of the suit on 16.9.1997. The suit was also decreed for Possession. The JDs were to execute the Sale Deed in respect of suit flat as per the judgment and decree dated 29.8.2002.
4. This execution petition was filed on 28.2.2003. The objections under Section 47 CPC were filed by the JDs which were disposed off as dismissed on 3.8.2004. Objections were also filed by two other parties Result: Application dismissed Page 2 of 17 Chander Kant v Laxmi Chand Ex.No.75/2010/03 that were also dismissed. The Court called the Sale Deed executed in accordance of the Judgment and Decree. In between, an application was filed under Order 1 Rule 10 CPC alongwith application under Order 21 Rule 26 CPC and another application under Order 21 Rule 97 CPC which is the subject matter of this order. The former two applications already stands disposed of. Further proceedings in the execution petition have been stayed vide order dated 15.2.2014 on the said application under Order 21 Rule 26 read with Section 151 CPC. According to the objector, he is absolute owner in possession of built up flat bearing no. F30/F1 on first floor area measuring 850 sq. ft after having purchased the same vide registered Sale Deed dated 4.7.2005 executed by one Smt. Raj Kumari. His predecessor in title obtained the property vide registered Sale Deed dated 15.3.2005 executed by S. Surinder Pal Singh. It is averred that on 27.2.2007, the DH Sh Chander Kant arrived at the house of the objector with some Court official and informed him about the Decree. On inquiry, the objector learnt about the litigation. It is claimed that the objector was neither the party to the suit nor this execution. The primary ground as raised in the objection is that the front side of first floor of property no. F30 comprises of two flats bearing no. F30/F1 and F30/F2 whereas the Decree is silent about the number of the flat. It is claimed Result: Application dismissed Page 3 of 17 Chander Kant v Laxmi Chand Ex.No.75/2010/03 that there is no decree existing in respect of objector's flat which bears number F30/F1.
5. By way of additional objections, the objector again states that he is bonafide purchaser of flat in his possession and that the plaint itself is bad for want of any site plan and violation of provisions of Order 20 Rule 9 CPC. An objection qua payment of Court fee is also taken. It is submitted that there is collusion between the DH and the JDs. It is averred that copy of restraint order dated 17.11.97 or Decree dated 29.8.2002 were never produced before the Sub Registrar concerned. It is thus prayed in the objections that the objector may be permitted to examine some witnesses to prove this fact.
6. It is in the reply that the objections are not maintainable perse as the objector is a transferee pendentelite as the JDs had transferred the suit property after the institution of the suit. It is submitted that Order 21 Rule 102 CPC shall apply. The present objector had resisted and created objections in execution of warrant of possession despite the fact that he is also bound by the decree. It is pointed out that S. Surinder Pal Singh executed the Sale Deed in favour of Smt. Raj Kumari as the attorney of the JDs and thus, the present objector has stepped in the shoes of the JDs themselves.
7. It has been clarified that there are indeed two flats in property Result: Application dismissed Page 4 of 17 Chander Kant v Laxmi Chand Ex.No.75/2010/03 no. F30 on the first floor out of which one is said to be on the front side while the other on the rear side. It is pointed out that the Decree relates to the front side flat which is now possessed by the objector and he is merely creating confusion.
8. In this backdrop of facts, I shall now come upon the evidence lead by the parties on the above extracted issues. The objector was directed to lead evidence first. He firstly got summoned Sh. Ashish Anand, Officer, Canfin Homes Ltd, Noida, U.P as OW 1. He produced the original record of which the photocopies are already on file. He exhibited the Sale Deed between Smt. Raj Kumari and the Objector as ExOW1/1. He exhibited the Sale Deed between S. Surinder Pal Singh and Smt. Raj Kumari as ExOW1/2. He also collectively exhibited Agreement to Sell, GPA, Undertaking, Indemnity Bond, Possession letter, three letters, Receipt all dated 11.8.1998 as ExOW1/3. He also produced the non encumbrance certificate dated 1.2.2008 as ExOW1/4. He stated that all these documents have been retained by Canfin Homes Limited i.e the bank in original as the objector purchased the flat no. F30/F1 after availing the house loan. The exhibition of copies of original documents was objected to on mode of proof. I find that the objections are correct. The documents being registered should have been proved through the concerned Sub Result: Application dismissed Page 5 of 17 Chander Kant v Laxmi Chand Ex.No.75/2010/03 Registrar/other government official/executor and not in the manner as sought to be proved.
9. The objector also filed his affidavit in evidence which is ExOW2/A. He placed reliance on documents ExOW1/1 to ExOW1/4 about proof of which this Court has already commented. They remain inadmissible in evidence as not proved in accordance of law. He also relied on police complaint dated 4.5.07, photocopy of which is Mark X, photocopy of Mutation rectification issued by the MCD with its receipt is Mark Y, photocopy of electricity bill is Mark Z. Even these documents are not admissible as not proved in accordance with law. The objector also sought to prove the site plan ExOW2/5. Its introduction in evidence was objected on mode of proof which objection is correct. It is prepared by an Architect & Valuer, who have not stepped in witness box to say that it is according to site. The objector as his own witness does not state that the site plan was prepared on his instructions or that he signed on it. The witness relied on one photograph showing the two flats which photograph is ExOW2/6. Again the negative of the photograph has not been produced and who took the picture is not known to the Court. However, it can be introduced in the evidence as its exhibition was neither objected to nor challenged. More over, the witness has also Result: Application dismissed Page 6 of 17 Chander Kant v Laxmi Chand Ex.No.75/2010/03 been cross examined on the said document. The objector did not examine any further witness.
10. The DH as his first witness got examined Sh I.K Sathyanathan, whose affidavit in evidence is ExDHW1/A. He is resident of other flat on the first floor bearing no. F30/F2. He knows the objector and belongs to the same State (Kerala). According to him, the objector enquired about the flat on the front side. Witness clarifies that entire building is three storeyed comprising of two flats in each floor. Private numbers have been allocated to these flats. The witness also stated that at the time of execution of Sale Deed of flat of this witness i.e F30/F 2 (rear side), the seller which are JDs herein gave a copy of the building plan to this witness. At that time, the flat numbers were not allocated. The copy of said building plan is ExOW2/DH1.
11. The next and the only other witness examined by the DH is he himself. His affidavit in evidence is ExDHW2/A. He has deposed in accordance of pleadings and has relied on certified copy of Sale Deed exhibited by this Court as ExDHW2/A, Agreement to sell dated 4.11.1995, which is already ExPW1/1 (in suit), the site plan which is ExOW2/DH1.
12. I have gone through the material carefully. For perusal of terms of original Agreement to Sell ExPW1/1, file of suit no. 624/02/97 was Result: Application dismissed Page 7 of 17 Chander Kant v Laxmi Chand Ex.No.75/2010/03 also called for. My issuewise findings are as under:
Issue no. 1. Whether the front side of the first floor of property in question comprises of two flats as F30/F1 and F30/F2 as stated ? OP Objector.
13. The onus of this issue remained on the objector. According to the objector, the front side of the first floor of the property comprises of two flats whereas according to DH, there are indeed two flats. However, one is in the front while the other at the rear. The subject matter of the execution is the front side flat. The suit property is described as in the suit plaint, "built up one flat on the front side on the first floor alongwith common easmentary rights from ground floor upto top floor of property no. F30, Dilshad Garden, Extension No. I, Illaqa Shahdara, Delhi bounded on the East by road, on the West by property no. F11, on the North by road and on the South by property no. F29".
14. The judgment in para 2 contains the same description. In the operative part, the following is described in the findings returned by the Court viz, "......... .Accordingly, a decree for specific performance as well as decree for possession of flat on the front side of first floor in property no. F30, Dilshad Garden, ExtensionI, Delhi is passed in favour of the plaintiff and against the defendants." Same is the Result: Application dismissed Page 8 of 17 Chander Kant v Laxmi Chand Ex.No.75/2010/03 description to be found in the decree sheet.
15. Thus, the Judgment and Decree are in respect of front portion flat in property no. F30, Dilshad Garden. So far as OW 1 is concerned, he can not be of any assistance to the Court as he never had any personal knowledge with regard to the case. So far as the objector himself is concerned, he reiterates on oath that he purchased flat no. F 30/F1 in the manner stated already. He placed reliance on photograph ExOW2/6 to prove that there are two flats on the first floor of the property which comprises of total 8 flats. This deposition is to be found in para 14 of his affidavit. The contents of his objections are very important to be understood in proper perspective. In para 6 of the application in hand, the following has been stated viz, "....... The front side of the 1st floor of the said property is having two flats as F 30/F1 and F30/F2".
16. Why this is stressed upon is to show that the stand taken from the very beginning by the objector is that the property on the front side has two flats. However, the flat in his possession is the subject matter of this execution. The objector himself states in para 14 of his affidavit that two flats on the first floor of property bearing no. F30 are situated on the front side. Thus, he abandons his stand. Careful perusal of his photograph ExOW2/6 would reveal that it is photograph taken from Result: Application dismissed Page 9 of 17 Chander Kant v Laxmi Chand Ex.No.75/2010/03 side angle. Admittedly, the point Mark E1 is the common entry to the building. Flat F1 as well as flat F2 have been marked in the photograph. The other side view of the property are not visible. What appears from the photograph is that since there is a road besides the flat F1, it has to be the front side whereas there being no such thing with flat no. F2, it has to be the rear side. This in itself may not suffice.
17. The objector claims in para 16 of his affidavit that Agreement to Sell ExOW1/1, which is in Agreement to Sell the front side flat executed between the DH and the JD shows that the said flat is admeasuring 108.5 sq. yds whereas area of flat in his possession is said to be only 850 sq. ft. Careful perusal of original Agreement to Sell in the suit file reveals that it is in laminated sheet and consists of several corrections made by pen. One such correction is in respect of measurement. The front side flat admeasures 90 sq. yds only. The applicant is in possession of 850 sq. fts. One sq. yds is equivalent to 9 sq. ft and by this calculation, the applicant is in possession of 810 sq. ft of the flat area. He claims that it is 850 sq. ft. Be that as it may, the fact that 90 sq. yds area was sold which approximate area is in possession of the present objector is also a factum to be considered. Careful perusal of copy of sanction plan ExOW2/DH1 would also Result: Application dismissed Page 10 of 17 Chander Kant v Laxmi Chand Ex.No.75/2010/03 reveal that there is difference between the measurements between two flats situated on the same floor. It being so, the self admission of the objector in his cross examination that measurement of property are different is of no consequence.
18. Sh I.K Sathyanathan/DHW1 is the owner of flat no. F30/F2 to which he refers to as the rear flat. No specific cross examination has been offered to this witness that the flat in his possession is not the rear portion flat. Infact, the witness has not been even suggested that he is not the occupant of the said flat i.e F30/F2. This is despite the fact that in his cross examination, the objector himself admits that there are two flats each on each floor and that he does not know if one Sh Satya Narayan is the owner of one flat situated on the first floor. The witness however, agreed that Sh Satya Narayan is residing in the property in question.
19. I have already pointed out that the boundations of the property in question has been duly provided in the suit plaint. Both the objector as well as the DH have admitted that flat no. F2 is situated towards West of flat no. F1. As per the suit, the suit flat is bounded on the West side by property no. F11. Same stand has been maintained by the DH in his cross examination. Although, he clarifies that flat no. F 11 is itself situated on the back side of flat no. F30. It hardly makes Result: Application dismissed Page 11 of 17 Chander Kant v Laxmi Chand Ex.No.75/2010/03 difference as both the parties have agreed that flat in dispute is bounded on the West by property no. F11.
20. This objector instead of proving and maintaining the stand that two flats on the first floor of property no. F30 are situated at the front side has rather gone in proving the case of the DH to the effect that other flat now bearing no. F2 is situated on the rear side and thus could not have been the subject matter of the decree in question.
21. The present objector do not seem to be having knowledge of correct facts as he seems to be not aware of the cuttings made on ExPW1/1 by hand in respect of the covered area of flat that was being sold. The sale deed executed by S. Surinder Pal Singh as attorney of the present JD in favour of Smt. Raj Kumari in respect of the flat no. F30/F1, 1st floor is dated 15.3.2005. The sale deed between Smt. Raj Kumari and the present objector in respect of this very flat which is ExOW1/1 is dated 4.7.05. The suit itself was instituted on 31.7.97 and disposed of on 29.8.2002. The execution petition as stated earlier was filed on 28.2.2003 and thus both the sale transactions have been made during the pendency of the present execution petition thereby effectively making the present objector a transferee pendantelite. The effect of doctrine of lispendens shall be considered while returning finding on issue no. 2. So far as this issue is concerned, it is decided Result: Application dismissed Page 12 of 17 Chander Kant v Laxmi Chand Ex.No.75/2010/03 against the objector.
Issue no. 2. Whether the decree in present execution petition is not an executable decree ? OP Objector.
22. The onus of this issue was also on the objector. The applicant heavily relies on Order 21 Rule 97 & 99 CPC. His written arguments that he has placed prior to settlement of issues also indicate the same. He claims his own independent right in property no. F30/F1, Dilshad Garden, Delhi and therefore, claims that the judgment and decree is in executable so far as he is concerned. However, this Court has already ruled that the present objector is a subsequent purchaser of the premises in dispute pending the execution of the Decree. The fact that obstruction to the execution of decree was caused is evident from record. Order 21 Rule 102 CPC clarifies that there should not be resistance or obstruction by transferee pendantelite. It has been held in case titled Usha Sinha v Dina Ram & Ors. AIR 2008 SC 1997 that a person purchasing property from the JD during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. It has been further held that resistance at the instance of transferee of a JD during the pendency of the proceedings can not be said to be resistance or obstruction by a person in his own right and therefore, such person is not entitled to get his claim Result: Application dismissed Page 13 of 17 Chander Kant v Laxmi Chand Ex.No.75/2010/03 adjudicated. It is therefore, amply clear that if resistance is caused or obstruction is offered by a transferee pendentelite of the JD, he can not seek benefit of Rule 98 or 100 of Order 21. It is matter of record that warrant of possession was earlier issued and it is also apparent from the report of the Bailiff that execution was not only resisted but obstructed. In this context, the Hon'ble High Court of Delhi in case titled Alok P. Jain v Sunita Narinder Ahuja, 57 (1995) DLT 113 categorically held that a remedy under Order 21 Rule 97 CPC is available to a decree holder who is resisted or obstructed by any person in obtaining possession of the property. It was held that the said provision of law is meant for the benefit of decree holder and not for the benefit of a third party. The only remedy that a third party has is under Order 21 Rule 99 CPC who is alleged to have been illegally dispossessed. This is not the case here. Reliance is also placed on the ratio of judgment titled Cooperative Stores v B.D Sharma & Ors. 61 (1996) DLT 794. It also categorically held that as per Order 21 Rule 99(1) CPC, the remedy for the person other than the JD would be only after his dispossession of the immovable property by the DH and the person dispossessed has to apply under sub rule (1), complaining of his dispossession of the immovable property and under sub rule (2) the Court has to adjudicate upon the application made under sub rule (1) in Result: Application dismissed Page 14 of 17 Chander Kant v Laxmi Chand Ex.No.75/2010/03 accordance with the provisions contained in Rule 100. It is implied that the question relating to right, title or interest in the property, arising between the parties, on an application either under Rule 97 or 99 shall be determined by the Court and thereafter, the order under Rule 100 upon determination of the question referred to in Rule 101 can be passed. In the present case, the applicant who is third party i.e other than the JD is still in the possession of the immovable property in question. In the same context, it has been held by Hon'ble High Court of Madhya Pradesh in Mohd. Shareef & Ors v Bashir Ahmed & Ors AIR 1983 M.P 44 in context of Order 21 Rule 97 & 100 CPC that a third party can not claim investigation under Rule 97 into its title in the property alleging possession in its own right.
23. Conversely, the objector placed reliance on the following judgments even prior to passing of the order of the Court dated 15.2.2014. They were not cited during arguments but are being considered as on record:
1. Nusserwanji E. Poonegar & Ors. AIR 1984 Bombay 357
2. Dhian Chand & Anr v Parkash Kaur & Ors. AIR 1978 Punjab & Haryana 221.
3. Smt. Tahera Sayeed v M. Shanmugam & Ors. AIR 1987 Andhra Pradesh 206 Result: Application dismissed Page 15 of 17 Chander Kant v Laxmi Chand Ex.No.75/2010/03
4. Smt. Santilata Paul v Nanda Kishore Mukherjee AIR 1981 Calcutta 219
5. Baldeo Pandey v Ram Prasad Raut & Ors. AIR 1963 Patna 319
6. Bhagwat Narayan Dwivedi v Kasturi AIR 1974 Madhya Pradesh 26
7. Hira Lal & Ors v Hari Narain & Ors. AIR 1964 Allahabad 302
8. Moidu v Parthasarathy & Ors. AIR 1992 NOC 18 (Kerala)
9. Shreenath & Anr v Rajesh & Ors. AIR 1998 S.C 1827
10. H. Seshadri v K.R Natarajan & Anr. AIR 2003 S.C 3524
11. N.S.S Narayana Sarma & Ors v M/s Goldstone Exports (P) Ltd & Ors. AIR 2002 S.C 251.
24. The first and second judgments are by the Hon'ble Bombay and Punjab & Haryana Court Courts and prior to the judgment in Usha Sinha (Supra). They are therefore, not applicable to this case. Similar is the position with respect to the third judgment titled Smt Tahera Sayeed v M. Shanmuga & Ors. So far the forth judgment is concerned, this Court has already held that since the rule of lis pendens will apply to the present proceedings, the said judgment shall have no bearing on the facts of this case. The forth judgment of Result: Application dismissed Page 16 of 17 Chander Kant v Laxmi Chand Ex.No.75/2010/03 Hon'ble Punjab & Haryana High Court is not applicable to the facts of this case as the objector has not been able to satisfy after leading evidence that the property in his possession is different than the property in execution. The judgment of Hon'ble Madhya Pradesh High Court in Bhagwat Naarayan Dwivedi v Kasturi can not be applied to the facts of this case in view of the ratio of judgment of Hon'ble Apex Court in Usha Sinha's case (Supra). Similar would be the position with respect to the remaining judgments and the judgment primarily relied upon by the objector in order to prove his case by way of leading evidence. The Court has already given him opportunity to lead evidence and after having led such evidence, the objector has failed in establishing that the subject matter of the judgment and decree in execution is different in the manner he alleges.
25. Having regard to the above discussion, the issue is decided against the objector and in favour of the decree holder.
26. In the result, the application in hand (objections) stands dismissed.
Announced in open Court. (Manish Yaduvanshi)
Dated: 24.04.2015. ADJ06(Central)Delhi
Result: Application dismissed Page 17 of 17