Sh. Nand Kishore Mehra vs Sh. Surender Mahajan S/O Sh D.D. Mahajan on 31 March, 2018

[Cites 58, Cited by 0]

Delhi District Court

Sh. Nand Kishore Mehra vs Sh. Surender Mahajan S/O Sh D.D. Mahajan on 31 March, 2018

                       IN THE COURT OF MS. VANDANA JAIN
                           ADDITIONAL DISTRICT JUDGE07
                      SOUTHEAST DISTRICT, SAKET COURTS
                               NEW DELHI   
                                                                    CS No. 231/17
                                                   [MORE THAN SIXTEEN YEARS OLD]
In the matter of:
Sh. Nand Kishore Mehra, 
Since deceased through his legal heirs
Mr Amod Mehra S/o Late Sh Nandkishore Lalchand Mehra
Mr. Ashok Mehra S/o Late Sh. Nandkishore Lalchand Mehra
Mr. Pramod Mehra S/o Late Sh. Nandkishore Lalchand Mehra
R/o 301, Shiv Shakti, 11, JVPD Scheme, 
N.S.Road No. 10, Opposite Haveli Mandir, 
Mumbai400049
                                                        .........Plaintiffs

                                                        VERSUS
1. Sh. Surender Mahajan S/o Sh D.D. Mahajan
R/o B80, Greater Kailash PartI
New Delhi.                                                       ...........Defendant no. 1. 

2. Smt. Bharthi W/o Sh. Yeshwant Ramamorthy
R/o 104, 3rd Cross Marred Pali, 
Securndrabad, Andhra Pradesh.                                    ............Defendant no. 2



Date of Institution :             18.10.2001
Date of arguments :               09.03.2018
Date of Judgment  :               31.03.2018


                                          JUDGMENT

1. This is a suit for possession, damages and declaration against the defendants in respect of the property bearing no. B10, Greater Kailash1, New Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 1 of 42 Delhi (hereinafter referred to as suit property) along with a counter claim filed by defendant no. 1. This judgment would dispose off both the main suit as well as counter claim of defendant no. 1.

2. Brief facts of the present case are that plaintiff is lawful owner of the suit property. The said property consists of basement, ground floor comprising of one drawing room, dining room, kitchen, one bedroom with attach bath, first floor comprising of a study, three bedrooms and a lounge, and second floor comprising of one bedroom with an annexe comprising of two car garages with drive in four servant quarters with front and rear lawns.

3. The defendant no. 1 has allegedly purchased the suit property from Smt Sushila Mehra, where as the plaintiff has been the owner of the said property. The said property is alleged to have been purchased by defendant no. 1 during the pendency of the suit filed by the plaintiff against Smt. Sushila Mehra despite injunction orders and undertakings that the status quo with regard to the ownership of the property shall be maintained.

4. The plot under the said property was purchased by the plaintiff in the name of his second wife Smt Sushila Mehra out of his own resources/funds in April 1964 for his own benefit. Thereafter the plaintiff out of his own funds constructed the house in question. It is further submitted that certain differences arose between the plaintiff and the Mrs Sushila Mehra and thereafter Mrs Sushila Mehra turned dishonest with a view to grab the properties which the plaintiff had purchased in her name from time to time. In order to recover the properties purchased by the plaintiff in the name of his wife Mrs Sushila Mehra, the plaintiff filed a suit no. 339 of 1992 for declaration in the Hon'ble High Court of Delhi.

5. It is further submitted that during the pendency of that suit, the plaintiff Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 2 of 42 came to know that Mrs Sushila Mehra was trying to dispose of the property and was trying to create third party interest. The plaintiff filed an application under Order 40 Rule 1 for appointment of a receiver of the property upon which a Local Commissioner was appointed who executed the commission on 26.07.1993 and found the premises were lying vacant and renovation work was in progress, new electrical fitting and gadgets were being installed in the bedrooms and drawing rooms.

6. It is further submitted that on 18.08.1993, the counsel for Mrs Sushila Mehra made a statement before court that suit property has not been sold or transferred but a rent agreement has been entered into on 07.01.1993 with M/s Paramount Products (P) Ltd.

7. It is further submitted that during the pendency of the suit Smt Sushila Mehra died and an application under Order 22 Rule 4 of CPC was filed to implead her legal heir Smt Bharati, wife of the Mr Yeswant Ramamorthy which was allowed on 14.07.1998. Thereafter, plaintiff sent a legal notice to defendant no. 1 on 20.04.2001 and in response to the legal notice of the plaintiff, defendant claimed that he has purchased the property by registered sale deed on 11.10.1994. It is further submitted that M/s Paramount Products Pvt Ltd is a family owned company of the Mahajans, thus defendant Sh Surender Mahajan and company were fully aware about the pendency of the suit filed by the plaintiff against his wife Mrs Sushila Mehra and thus sale deed is a nullity and is barred by Section 52 of the Transfer of Property Act. The alleged transaction is hit by principles of Lis Pendens.

8. It is further submitted that after the suit of the plaintiff was decreed, and the plaintiff was declared to be the true owner of the property B80, Greater KailashI, New Delhi, thereafter, plaintiff applied to the MCD for mutation of the said property in his name. Plaintiff also served a legal notice to Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 3 of 42 defendant herein stating that he has been declared the owner of the suit property on the basis of decree passed by court. It is further submitted that defendant is liable to hand over the vacant peaceful possession of the suit property along with mesne profit/damages. Thereafter, vide its reply dated 11.05.2000, the defendant wrongly and illegally denied the contents of the notice and wrongly alleged that he is the bonafide purchaser of the suit property for consideration.

9. By way of present suit, decree of declaration is sought for declaring the sale deed executed on 11.10.1994 and registered on 14.11.1994 allegedly executed by Smt Suhila Mehra in favour of the defendant is null and void and prayed for decree of vacant and peaceful possession and damages for use and occupation of the suit property.

10. Summons of the suit were issued to both the defendants. Defendant no. 1 appeared and filed written statement. Defendant no. 2 did not appear and was proceeded exparte.

11. It is pertinent to mention here that the suit was filed before Hon'ble High Court which was transferred pursuant to enhancement of pecuniary jurisdiction.

12. The defendant no. 1 has filed his written statement stating that on or about 11.03.1992, the plaintiff Nand Kishore Mehra is stated to have filed the suit for declaration against his wife Smt Sushila Mehra in suit no. 339 of 1992 on the allegations that defendant Sushila Mehra is the wife of the defendant and before the marriage with the said defendant, plaintiff was already married to one Smt Bimla and had four sons out of that marriage. The defendant Sushila Mehra had joined the plaintiff's company a casual typist in the year 1950. The plaintiff and defendant got attracted to each other and decided to marry although both the plaintiff and defendant were already married. It is Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 4 of 42 further stated that since the first wife and the children from her were living in Bombay and they did not accept the marriage of the plaintiff with the defendant, the plaintiff rented a house in Golf Links, New Delhi in the same year where the plaintiff lived with the defendant for over twenty five years. It is further stated that plaintiff decided to build some property in Delhi. Plaintiff had purchased a plot bearing no. B80, Greater KailashI, New Delhi and constructed the house.

13. It is further submitted that earlier suit was not maintainable in view of the Benami Transactions (Prohibitions ) Act, 1988.

14. It is further submitted that present suit is hopelessly barred by time and is barred under the provision of Specific Relief Act, 1963.

15. It is further submitted that plaintiff is guilty of suppression of material facts and the so called decree of declaration obtained by him on the said basis on 07.05.1999 is a nullity and vitiated by fraud in so much so that admittedly during the pendency of the said suit no. 339/1992, counsel for plaintiff got served a notice dated 20.06.1997 upon M/s Paramount Products Pvt Ltd who duly replied the same on 05.08.1997 that the said property stood sold by the said Smt Sushila Mehra to the defendant no. 1 on 11.10.1994 for a sale consideration of Rs. 2.01 Crors but inspite of the said fact, plaintiff did not think it proper to move any application in the said suit for the alleged breach of undertaking and the perjury thereof by the said Smt. Sushila Mehra nor did he take any steps to implead the defendant no. 1 herein in the said proceedings. It is further stated that suit of the plaintiff is liable to be dismissed.

16. Counter claim was also filed by defendant no. 1 praying for judgment and decree dated 07.05.1999 in suit no. 339 of 1992 in Nand Kishore Mehra Vs Smt Sushila Mehra (deceased) through her LR be declared null and void Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 5 of 42 and in alternative also sought decree for refund of sale consideration of Rs. 2.01 Crores along with interest @ 18 % per annum from 11.10.1994 till realisation be passed in favour of defendant no. 1 and against the plaintiff and ll others claiming to be the LRs of Late Sushila Mehra. Reply to the same was also filed.

17. Replication to the said written statement filed by plaintiff wherein he denied all the averments made by defendant no. 1 and reiterated the facts as mentioned in the plaint.

18. After completion of pleadings following issues were framed on 14.07.2005 in main suit as well as counter claim :

1. Whether the suit is within time ? OPP

2. Whether suit for declaration simplicitor is maintainable ? OPP

3. Whether the Judgment and Decree dated 07.05.1999 passed by Delhi High Court is suit No. 339 of 1992 is a nullity for the reasons stated in the W.S ? OPP

4. Whether the suit has been properly valued for the purposes of court fee and jurisdiction and the plaintiff has paid proper court fee thereon? OPP

5. Whether Smt Sushila Mehra had any child, viz. The defendant no. 2? if so, to what effect ? OPP.

6. Whether the rights and obligations of Smt Sushila Mehra devolved upon the plaintiff in view of Section 15 of the Hindu Succession Act ? OPD.

7. Whether the suit is barred under Order 2 Rule 2 of CPC ? OPD

8. Whether the suit is bad for non joinder for M/s Paramount Products Pvt Ltd ?

9. Whether the sale deed dated 11.10.1994 executed by Smt Sushila Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 6 of 42 Mehra is hit by doctrine of Lis Pendens ? OPP.

10. Whether the defendant is in unauthorized occupation of the suit property ? If so, to what effect ? OPP.

11. Whether plaintiff is entitled to recover any amount on account of damages and/or mesne profits from the defendant? If so, at what rate and for what period? OPP

12. Whether suit no. 339/1992 had abated on the death of Smt Sushila Mehra, and if so, to what effect and no decree could have been passed in the suit ? OPD.

13. Whether the suit is bared by the principle of Res judicata ? OPD.

14. Whether the defendant is entitled to a declaration as prayed for to the effect that the decree dated 07.05.1999 is a nullity ? If so, to what effect ? OPD.

15. If issue no. 14 is decided in negative and against the defendant, whether the defendant is entitled to refund of Rs. 2.01 Crores paid under the sale deed dated 1.10.1994 ? If so, from whom? OPD

16. Whether the defendant is entitled to recover any interest? If so, at what rate and for what period? OPD.

17. Whether the counter claim of the defendant is maintainable without the payment of ad valorem court ? OPD.

18. Whether the plaintiff is entitled to a decree for possession in respect of the suit property ? OPP.

19. Whether the plaintiff is entitled to any damages/mesne profits on account of alleged unauthorized use and occupation of the premises by the defendant and, if so, at what rate and for what period ? Whether he is entitled to any interest ? OPP.

Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 7 of 42

20. Relief.

19. Thereafter the matter was listed for plaintiff's evidence. Plaintiff examined himself as PW1. Thereafter, he was duly cross examined by Ld Sr. Advocate for defendant. Thereafter plaintiff's evidence was closed.

20. Matter was listed for defendant's evidence. Defendant examined himself as DW1 and he was duly cross examined by the Ld. counsel for plaintiff. Defendant further examined Mr Rajesh Kumar, Income Tax Inspector as D1W2 and Mr. Sanjay Kumar Mishra, Inspector, Income Tax Department as D1W3. Both these witnesses were duly cross examined by Ld counsel for plaintiff.

21. I have heard the arguments on behalf of both the parties and have perused the record carefully.

22. Before coming to the issues, it is worthwhile to note here that plaintiff died during the pendency of this suit and his LRs were brought on record vide order dated 16.08.2014 who pursued the remaining case but amended memo of parties is not record. All issues shall be dealt with, however, the sequence cannot be followed.

23. Issue No. 2 Whether suit for declaration simplicitor is maintainable?

Onus to prove this issue was upon plaintiff. The present suit is for declaration, damages and possession. No arguments were addressed by counsel for both the parties on this issue. No evidence has been led on this issue. What this court could gather from this issue was whether earlier suit for declaration was maintainable. Defendant No. 1 had no locus to say so as it was filed by plaintiff against his wife and had claimed that he was in constructive Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 8 of 42 possession of property. This issue was not argued/pressed by any of the counsels for the parties and therefore, this issue is struck down.

24. Issue No. 9 Whether the sale deed dated 11.10.1994 executed by Smt Sushila Mehra is hit by doctrine of Lis Pendens ? & issue No. 10 Whether the defendant is in unauthorized occupation of the suit property ? If so, to what effect ?

Issue No. 9 & 10 are bring interrelated are taken up together. Onus to prove these issues were upon plaintiff. Ld counsel for plaintiff has argued that suit for declaration was filed by plaintiff against his second wife declaring him to be the owner of the suit property as it was purchased by him out of his own funds wherein injunction order was passed restraining the defendant from selling, alienating or parting with possession of the suit property during the pendency of the suit. In that suit, an application under Order 7 Rule 11 CPC was filed by wife which was dismissed on 18.11.1993 and LPA was preferred against the same and Division Bench of Hon'ble High Court allowed application under Order 7 Rule 11 CPC. Ld counsel for plaintiff has argued that wife was restrained from collecting rent and rent was ordered to be deposited in the court, however, thereafter defendant wife prayed for releasing a portion of rent for her sustenance which was allowed and in this context even after the dismissal of the suit on account of rejection of the plaint, an application was filed by defendant wife on 30.01.1994 for withdrawal of the rent and notice of the same was issued to the opposite party on 02.03.1995. Ld counsel for parties were present and it was stated by counsel for plaintiff that against the decision of this court, an appeal is pending before Hon'ble Supreme Court for hearing and matter was postponed for 19.07.1995. Ld counsel for plaintiff has further argued that SLP was filed in May 1994 and the leave was granted by Hon'ble Supreme Court on 17.10.1994 and on that day Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 9 of 42 counsel for wife was present there but he did not inform the Hon'ble Supreme Court that property had already been sold, finally SLP was allowed on 02.07.1995 and the matter came up before Hon'ble High Court on date already fixed i.e. 19.07.1995 and suit was restored, however, no one was present on behalf of the defendant. Interim applications were also restored and matter was listed for admission/denial of documents and framing of issues. Ld counsel for plaintiff has argued that thereafter she never appeared thereafter and was proceeded exparte on 18.10.1995. Ld counsel has argued that property has been sold during the pendency of the suit as SLP is also a continuation of proceedings and therefore, doctrine of lis pendens apply. He has relied upon judgment Sarvinder Singh Vs. Dalip Singh 1996 Scale (6) 59 & Jagan Singh Vs. Dhanwanti (2012) 2 SCC 628.

Ld Sr Advocate for defendant has vehemently opposed the arguments made by the counsel for plaintiff and has argued that SLP is not filed as a matter of right and, therefore, the period between passing of order by Division Bench of Hon'ble High Court and till the time, leave was not granted by Hon'ble SC, it cannot be stated that during this period any proceedings were continuing and doctrine of lis pendens did not apply. In respect of Article 136 of Constitution of India being an extra ordinary remedy, he has relied upon judgment Kunhayammed and others Vs. State of Kerala and another AIR 2000 SC 2587, Laxman Marotrao Navakhare Vs. Keshavrao Eknathsa Tapar AIR 1993 SC 2596 & Gyan Chand Vs Kunjbhearilal and Ors AIR 1997 SC 858 and for Lis Pendens he has argued that benefit of Lis Pendens could have been taken in the previous suit and not in the present suit. In this regard, he has relied upon judgments Ravinder Kumar Khanna Vs Prem Kumar Khanna 2017 (3) AD (Delhi) 786 & A. Nawab John & Ors Vs. V.N. Subramaniyam (2012) 7 SCC 738.

Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 10 of 42 Before adverting to the facts in hand in respect of this issue, it is necessary to discuss the Doctrine Lis Pendens, Section 52 of Transfer of Property Act defines this doctrine which is given as here under: "During the [pendency] in any court having authority [ [within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by [the Central Government] [***] of [any] suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose."

The conditions for the applicability of the doctrine are as under: "(a) that a suit or proceeding should be pending;

(b) that it should not be collusive;

(c) that it should be a suit or proceeding in which any right to immovable property is directly and specifically in question;

(d) that the suit should be pending in a court having jurisdiction; and

(e) that the court must be in India or beyond India, but established by the Central Government If these conditions are fulfilled, then the doctrine applies, but even if the doctrine applies, the consequences which flow from the application of the doctrine are again limited by the section itself and these consequences indicated in the latter half of the section are as follows:

(a) that the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding;

(b) so as to affect the rights of any other party thereto; and

The said doctrine of lise Pendens is based upon sound principle of law and equity. It would plainly be important that any action or suit cannot be Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 11 of 42 brought to an end if transfers pendentelite were permitted to prevail. However, the Lis Pendens rule does not annul the transfer but only renders its subservient to the rights of the parties to the litigation. According to this rule whoever purchases the property during the pendency of the suit is bound by the judgment that may be made against the person from whom he derived title even though such a purchaser was not a party to the action or had no notice of the pending litigation.

Now coming to the facts in hand. As per the admitted facts, suit for second declaration of title was filed by the plaintiff against his wife Sushila Mehra on the ground that suit property was purchased by plaintiff in the name of his second wife out of his own funds and, therefore, it was purchased by him for his own benefit. An application under Order 7 Rule 11 CPC was filed by wife which was dismissed by the court against which an appeal was preferred, meaning thereby that the suit was continuing before the Hon'ble High court. Perusal of the record reveals that Division Bench of Hon'ble High Court allowed the application under Order 7 Rule 11 CPC and, therefore, plaint was rejected and consequently the suit was dismissed by the court on 12.05.1994. As already argued by Ld counsel for plaintiff, even after rejection of the dismissal of the suit, the dates were given in the file on application of the defendant wife for withdrawal of the rent on which notice was issued to the plaintiff on one of the dates i.e. 02.03.1995 and Ld counsel for plaintiff and Ld Sr Advocate for defendant wife were present and the counsel for plaintiff informed the court that the decision of the Division Bench of the Hon'ble High Court was challenged before Hon'ble Supreme Court meaning thereby that defendant had the knowledge that plaintiff had already availed the remedy of filing SLP before Hon'ble Supreme Court and the next date given by Hon'ble High Court was 19.07.1995 on that application. It is pertinent to mention here that defendant wife had filed a caveat in Hon'ble Supreme Court. On 28.07.1994, counsel for defendant was not present, Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 12 of 42 however, his name has been mentioned as a caveator in the proceeding sheet of that date before Hon'ble Supreme Court. On the said date, notice was issued to the opposite party i.e. defendant wife for the next date i.e. 17.10.1994. On that date, counsel for defendant wife was present and leave was granted by Hon'ble Supreme Court. It is pertinent to mention here that sale deed had already been executed by defendant wife in favour of defendant no. 1 herein on 11.10.1994 but this fact was not brought to the notice of the Hon'ble Supreme Court on 17.10.1994 and the matter was listed for arguments and finally SLP was allowed and the suit was restored. Though, Ld Sr Advocate for defendant herein has argued that notice of restoration was not given by the court to the defendant wife when the suit was restored on 19.07.1995, however, it is pertinent to mention here that date of 19.07.1995 was already fixed before the court on an application of defendant wife only. Defendant wife was the caveator in the Hon'ble Supreme Court, therefore, it cannot be said that she had no knowledge of the restoration of the suit or the proceedings pending before Hon'ble Supreme Court. She was bound to appear in the main suit, however, it appears that since she had already sold the property to defendant no. 1 herein, therefore, she had no interest in the suit property thereafter and had deliberately not appeared before the Hon'ble High court for pursuing the suit on 19.07.1995. The contention of Ld Sr Advocate for defendant that restoration was bad, is misconceived as the parties were hotly contesting the case and were aware of each and every proceeding. The technicalities cannot be allowed to defeat the ends of justice and therefore this contention of Ld Sr. Advocate for defendant is liable to struck down. The defendant wife did not appear and thereafter was proceeded exparte. As far as authorities relied upon by Ld Sr. Advocate for defendant are concerned i.e Kunhayammed and others Vs. State of Kerala and another Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 13 of 42 AIR 2000 SC 2587, Laxman Marotrao Navakhare Vs. Keshavrao Eknathsa Tapar AIR 1993 SC 2596 & Gyan Chand Vs Kunjbhearilal and Ors AIR 1997 SC 858, the same are not applicable to the facts in hand as they are in respect of Doctrine of merger and not even a single word regarding Lis Pendens is mentioned. Each case is peculiar and has to be decided in accordance with facts and circumstances of that case. In Kunhayammed Vs. State of Kerala and another AIR 2000 SC 2587 wherein it is held that " In spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. One leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge.

Dismissal at stage of special leavewith out reasons no res judicata, no merger"

Though this paragraph specifically states that before granting of leave to appeal by Hon'ble Supreme Court, the impugned order which was challenged before Hon'ble Supreme Court is a final order and is binding between the parties, however, this paragraph only point out the Doctrine of merger and does not speak anything about Lis Pendens. Here, in the present case, the facts are very clear which suggest that despite having knowledge of pendency of SLP Sushila Mehra sold the property to the defendant no. 1 herein and, therefore, these judgments cannot be said to be applicable to the facts in hand. At the same time, the judgment relied upon by counsel for plaintiff i.e. Jagan Singh Vs. Dhanwanti (2012) 2 SCC 628 cannot be said to be strictly applicable as in that case, suit property was sold when the second appeal has not been filed. As far as appeals are concerned, it is right of the party to file an Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 14 of 42 appeal which is different from filing a special leave to appeal petition. Therefore, this judgment can also not be said to be applicable to the facts in hand. However, since the sale deed was executed by defendant wife during the course of proceeding and despite being aware that an SLP was pending in Hon'ble Supreme Court the suit property was sold by her, therefore, Doctrine Lis Pendens clearly applied. Hence, issue no. 9 is decided in favour of he plaintiff and against the defendant.

Now come to second issue i.e. issue no. 10 Whether the defendant is in unauthorized occupation of the suit property ? If so, to what effect ? which arises for consideration is what is the effect of Doctrine Lis Pendens. As already stated in the beginning, Doctrine of Pendens does not by itself annul the transfer. Section 52 of Transfer of Property Act creates only a right to be enforced against transfer made pendentlite case. Such transfers are not void but voidable and that too at the option of the affected party to the pending proceedings in which the transfer is effected. It would, therefore, be reasonable to say that one who claims the rights must establish the same before he enforced it. It is an admitted fact that plaintiff had come to know about the sale of the suit property by his wife to defendant no. 1 herein during the pendency of the that suit which is proved by document Ex PW1/D1 i.e. reply to the notice of the plaintiff given by M/s Paramount Products Pvt Ltd. This notice dated 05.08.1997 was admitted by PW1 in his cross examination. It is pertinent to mention here that judgment in that case was passed on 07.05.1999 the documents exhibited D1 is a legal notice dated 20.06.1997 given by advocate of the plaintiff to M/s Paramount Products Pvt Ltd through its director N.D. Mahajan. The paragraphs no. 3, 5 and 9 of the said legal notice Ex D1 are reproduced herein as under: "3. That on 07.01.1993 wife my client Smt Sushila mehra had let Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 15 of 42 out to you the aforesaid premises with effect from 07.01.1993 by a un registered lease deed at an rent of Rs. 20,000/ per month exclusive of electricity and water charges. The 12 months rent paid by you in advance, the rent otherwise payable in advance on or before 7th day of each English calender month.

5. That you have been acknowledging my client wife as the landlady of the property by various acts including the payment of rent. That after the demise of the wife of my client, my client being the owner of the property is entitled to claim the possession.

9. You are, therefore, hereby called upon to hand over the peaceful vacant possession of the aforesaid property to my clients upon termination of the tenancy."

In reply to the said notice dated 05.08.1997 given by M/s Paramount Products Pvt Ltd to the advocate of the plaintiff it was mentioned that "Please refer to your legal notice dated June 20, 1997 to ur client M/s Paramount Products Pvt Ltd. We may state that the property bearing No. B80, Greater Kailash PartI, New Delhi(the "Property") was let out to our client by Late Mrs. Sushila Mehra vide rent agreement dated January 7, 1993. Subsequently, Mrs Mehra sold the property to Mr Surinder Mahajan vide sale deed dated October 11, 1994. Thereafter the rent arrangement pursuant to the aforesaid rent agreement between Mrs Mehra and our client came to an end. The said sale deed was registered on November, 4, 1994. Accordingly, Mr Surinder Mahajan is the owner of the property. In the circumstances your notice is misconceived."

Despite receiving this reply the plaintiff chose to keep mum. It is an admitted fact that the court was not informed about the said sale and plaintiff conveniently kept on pursuing his exparte case. Ld counsel for plaintiff had relied upon Sarvinder Singh Vs. Dalip Singh 1996 Scale (6) 59 in support of his arguments that once the property is sold during the pendency of the suit, the subsequent purchaser is not necessary and proper party in the suit and he is not required to be impleaded as a party under Order 1 Rule 10 CPC. He has Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 16 of 42 also relied upon Bharat Karsondas Thakkar Vs Kiran Construction Company (2008) 13 SCC 658. Ld counsel for plaintiff had argued that he was not allowed to change the nature of the suit by impleading defendant no. 1 herein as laid down in Bharat Karsondas Thakkar (Supra) as his rights were not crystallized and no order was passed in that case. He has argued that defendant no. 1 herein is in unauthorized occupation of the property. As far the judgment Sarvinder Singh (Supra) is concerned, the facts were that plaintiff/appellant had filed a suit for declaration declaring him as the owner of the suit property on the basis of will of his mother. This declaration was already granted to him in another decree passed in 1974. In the suit filed by plaintiff, injunction order were passed in favour of the plaintiffs on 14.06.1991 which were vacated on 02.12.1991. Defendant transferred the land by registered sale deed dated 02.12.1991 in favour of the respondents though in that case it was held that respondents, being the subsequent purchaser were not a necessary party, however, the thing to be noted is that, in that case the possession of the appellant/plaintiff was not parted with. Though sale deeds were got registered, however, the possession did not change hands whereas in the case filed by plaintiff against his wife, wife of the plaintiff had sold the property and handed over the possession of the same to defendant no. 1 herein and this fact was very well within the knowledge of the plaintiff during the pendency of the earlier suit. Therefore, the judgment titled as Sarvinder Singh (Supra) is not applicable to the case in hand.

As far as the second judgment Bharat Karsondas Thakkar (Supra) is concerned, in that case the suit was filed for specific performance against the defendant and appellant therein who was seeking permission to become a party in that suit for specific performance had acquired clear and independent Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 17 of 42 right in the suit property through a separate decree in an independent proceedings but he was not a party to the agreement of which specific performance was being sought. In that case the court had held that adding the appellant in the case of specific performance would change the nature of the suit. Therefore, application for impleadment cannot be allowed. However, on the contrary, in the present case the earlier suit was filed by husband(plaintiff) against his wife and subsequent purchaser of suit property i.e. defendant no. 1 herein had acquired the title in the suit property through wife of the plaintiff and nature of suit would not have changed if defendant herein was made a party as the plaintiff was already seeking declaration to be owner against wife. It is pertinent to mention here that possession was not sought in earlier suit from the wife as it was the claim of the plaintiff that he was also in constructive possession but now the possession had changed hands and, therefore, this relief was to be pressed in addition to the relief of declaration. Hence, Bharat Karsondas Thakkar (Supra) is not applicable to the case in hand.

Since the possession was also handed over to the defendant herein by the wife, he had acquired interest in the entire suit property which was required to be protected. In any case the plaintiff knew that he would not be able to occupy the property even in case he gets declaration against his wife as the property was in the possession of defendant no. 1 herein but despite that court was not informed and no necessary steps were taken to implead defendant no. 1 herein as a party to this suit. The guidance in this regard taken from judgment Thomson Press (India) Ltd Vs. Nanak Builders and Investors Pvt Ltd and others AIR 2013 SC 2389 In this case, it was held that subsequent purchaser had entered into clandestine transaction with the defendant and got the property transferred in Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 18 of 42 their favour and he cannot be held to be a bonafide purchaser without notice but even then subsequent purchaser was added as a necessary party with the rider that he was not allowed to take any other defence than what was taken by defendant in that case. In the present case it is not proved that it was a collusive transaction between wife of plaintiff and defendant no. 1 herein. Therefore, present case is at a upper footing.

Ld Sr Advocate for defendant has also argued that benefit of Section 52 of Transfer of Property Act could have been taken by plaintiff in that suit only and not in the present suit and has relied upon Ravinder Kumar Khanna Vs Prem Kumar Khanna 2017 (3) AD (Delhi) 786 in support of his arguments. Facts of the above case are that plaintiff is son of defendant no. 1 and 2 and defendant no. 3 is the sister of the plaintiff. This suit was filed in the year 2016 challenging the gift deed was executed by defendant no. 1 & 2 in favour of defendant no. 3, despite the fact that earlier suit in the year 2005 was filed by plaintiff restraining defendant no. 1 and 2 from dealing with the property and provide proper accommodation to him during his stay in India as the property is joint property of plaintiff and defendant no. 1 and 2. It is an admitted fact that during the pendency of earlier suit, the gift deed was executed by defendant no. 1 and 2 in favour of their daughter defendant no. 3. In this case the court held that: " What follows from the aforesaid law expounded by the Supreme Court is that transfer of property during the pendency of the suit cannot be a cause of action for another legal proceeding impugning the transfer on the ground of the same being hit by doctrine of lis pendens. All that the doctrine of lis pendens permits is to render the transfer inoperative qua parties to the suit during the pendency of which the property has been transferred. It is only the court in which the suit during the pendency of which the property has been transferred, is pending which is entitled to, if finds in favour of the plaintiff, to, notwithstanding the defendants having transferred the property, grant relief to the plaintiff qua the Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 19 of 42 property in whosoever hands it may be by virtue of such transferred The plaintiff appears to be under a misconception of law that transfer of property by gift deed by the defndants no. 1 and 2 in favour of the defendant no. 3 during the pendency of the suit previously instituted by the plaintiff furnishes an independent cause of action to the plaintiff to impugn the said transfer. The plaintiff forgets that it is only the court in which his previously no. 1 and 2 of the property in favour of the defendant no. 3, if finds in favour of the plaintiff. Conversely needless to state if that court does not find in favour of the plaintiff the occasion for ignoring the transfer will not arise."

This judgment is misconceived as in that case the plaintiff had already sought possession in the form of asking for accommodation in respect of his alleged portion of property, so no separate relief was to be sought whereas in the case in hand before this court, plaintiff had not sought possession from his wife alleging that he was in constructive possession but when sale deed was executed in favour of defendant no. 1 herein by the wife, possession did not remain with plaintiff or his wife. Therefore, it was his choice either to implead defendant in that suit or to file a fresh suit as done by plaintiff by filing the present suit. Be the case as it may, defendant being a purchaser after paying consideration to the recorded owner of the suit property, it cannot be said that he had ever remained in unauthorized occupation of suit property. This judgment is not applicable to this case.

Therefore, it is held that defendant was not in unauthorized occupation of the suit property. Issue No. 10 is decided against the plaintiff and in favour of the defendant, however, at this stage, it is relevant to point out that the defendant had not sought any relief for return of title deeds, despite being a bonafide purchaser.

25. Issue No. 3 Whether the Judgment and Decree dated 07.05.1999 passed by Delhi High Court is suit No. 339 of 1992 is a nullity for the Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 20 of 42 reasons stated in the W.S ?

26. Issue No. 12 Whether suit no. 339/1992 had abated on the death of Smt Sushila Mehra, and if so, to what effect and no decree could have been passed in the suit ?

27. Issue No. 13 Whether the suit is barred by the principle of Res judicata ?

28. Issue No. 14 Whether the defendant is entitled to a declaration as prayed for to the effect that the decree dated 07.05.1999 is a nullity ? If so, to what effect ?

All these issues being interrelated are taken up together. Onus to prove these issues was upon the defendant. Ld Sr Advocate for defendant has argued that despite that plaintiff having come to know about the fact of the suit property already sold to defendant no. 1 on 11.10.1994 vide reply dated 05.08.1997 Ex PW1/D1, the plaintiff did not file any application in the said suit for the alleged perjury by his wife and also he did not take any step to implead defendant no. 1 in those proceedings and continued the same even after abatement of the suit by impleading of imaginary legal representative namely Bharti. Therefore, the said judgment and decree dated 07.05.1990 is nullity and is not binding on anyone.

Ld Sr Advocate for defendant has further argued that suit had already abated by reason of non filing of application for impleadment by the plaintiff within stipulated time period. He has further argued that no order was made for setting aside the abatement and therefore, all subsequent proceedings were null and void. He has further argued that since the factum of sale of suit property to the defendant no. 1 was not disclosed by the plaintiff to the court despite having knowledge about the same, the decree was nullity in the eyes of law. With respect to this contention, he relied upon judgments (1) Union of Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 21 of 42 India Vs Ram Charan AIR 1964 SC 215 (2) Nehra Chits (P) Ltd Vs B. Ramachandra Reddy and Ors AIR 2003 AP 486 (3) M/s Rashtriya Yuva Udhyog Vs Dheeraj Kanwar AIR 2000 RJ 353 (4) Gurnam Singh 9D) Thr LRs & Ors Vs. Gurbachan Kaur (D) by LRs & Ors AIR 2017 SC 2419 (5) Budh Ram & Ors Vs. Bansi & Ors (2010) 11 SCC 476 (6) Mr. Anthony D'Sa Son of Mr. Valentino Antonio D'Sae Vs. Mrs Daria Lino D'Sae Dias wife of Mr. Casmiro Dias and Ors 2008 (2) ALLMR52 (7) The State Vs. Kapur Singh AIR 1953 PEPSU 118.

Ld Sr Advocate for defendant has further submitted that fraud has been played upon the court and he relied upon judgments S.P. Chengalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by LRs AIR 1994 SC 853 & A.V. Papayya Sastry & Ors Vs Government of A.P. & Ors AIR 2007 SC 1546. stating that any decree or order obtained by fraud is a nullity.

Ld Sr Advocate for defendant has further argued that since the decree has been obtained by fraud by plaintiff, therefore, it cannot operate as res judicata upon the defendant and, therefore, the decree of declaration passed in favour of the plaintiff in earlier suit is not operative upon him. With respect to issue no .13 he has argued that since the plaintiff had not taken any steps against the defendant in that suit, therefore, he cannot maintain this present suit for possession against him and the present suit is barred by constructive res judicata. He has relied upon judgments i.e. Khirod Chandra Mohanty Vs. Banshidhar Khatua and others AIR 1978 Orissa 111 & Raman Narayanan Vs. Chathunny AIR 1960 Kerala 38.

On the other hand, Ld counsel for plaintiff has rebutted the contentions made by Ld Sr Advocate for defendant no. 1 and has argued that judgment and decree dated 07.05.1990 was passed after considering all the aspects. He had argued that the defendant wife in that suit had stopped appearing before Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 22 of 42 the court and she was proceeded exparte. He has further argued that after deriving the knowledge that his wife had expired, plaintiff had moved an application for impleading her legal heir as party of the suit. In the said application, it was mentioned that though the plaintiff was the only surviving LR of the deceased wife, however, one Bharti was claiming some interest in the suit property of the deceased wife through some will and, therefore, a notice was got issued on the application to Bharti. It is stated that court had issued notice to Bharti several times and had ensured that she was served and only thereafter application for impleading her as LR of the deceased wife was allowed and thereafter Bharti was proceeded exparte. Ld counsel has further argued that it is only thereafter exparte judgment dated 07.05.1990 was passed. He submits that by no stretch of imagination, the decree or judgment can be said to be nullity. With respect to the notice of sale of property, counsel for plaintiff has argued that since the doctrine Lis Pendens was applicable, therefore, there was no need to implead subsequent purchaser of the suit property and suit is entitled to be decreed.

Ld counsel for plaintiff has argued that procedures are handmaids of justice and cannot be allowed to defeat ends of justice. He has argued that there are numerous judgment of Higher Courts which says that in case circumstances so suggest even the application for condonation of delay in filing of the application for impleadment is not required for abatement. He has relied upon Bhagmal and Others Vs Kunwar Lal and Others (2010) 12 SCC 159, Ram Rattan Singh Namdhari Vs. Inder Kaur (deceased thr. LRs) & Ors 175 (2010) DLT 577, Ram Nath Sao @ Ram Nath Sahu and Others Vs. Gobardhan Sao and others (2002) 3 SCC 195. He has further argued that as a matter of prudence, court had issued notice to LR Bharti whereas in case defendant is exparte, there is no requirement to issue notice to the LRs. He has Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 23 of 42 relied upon judgment Sushil K. Chakravarty (D) Thr LRs Vs M/s Tej Properties Pvt Ltd (2013) 9 SCC 642 in respect of his contention that he suit had not abated.

Ld counsel for plaintiff has further argued that allegation with respect to fraud are completely baseless and even otherwise fraud has to be specifically pleaded and proved which has not been done by defendant in this case.

As far as first issue of filing of an application for setting aside abatement of suit is concerned, the judgments relied upon by Ld Sr Advocate for defendant are hyper technical. The defendant has not proved in its evidence by way of any document that the plaintiff had deliberately concealed the date of death of his wife from the court. It is a known fact that plaintiff and his wife had deserted each other prior to the filing of the earlier suit. Wife was living in Hyderabad. So merely saying that the suit abated by reason of not filing the application within the stipulated time period from the date of death is not enough. The plaintiff had come within a given time frame from the date of his gaining knowledge about the death of his wife. There is no reason to disbelieve the plaintiff regarding the contents of the application for impleadment. Therefore, judgments relied upon by Ld Sr Advocate for defendant regarding abatement of suit are not applicable to the case in hand.

Ld counsel for plaintiff has also relied upon judgments i.e. Bhagmal and Others Vs Kunwar Lal and Others (2010) 12 SCC 159, Ram Rattan Singh Namdhari Vs. Inder Kaur (deceased thr. LRs) & Ors 175 (2010) DLT 577, Ram Nath Sao @ Ram Nath Sahu and Others Vs. Gobardhan Sao and others (2002) 3 SCC 195. As far as the moving of application for impleadment of LRs of parties is concerned, the application for impleading the LRs of the deceased plaintiff is moved under Order 22 Rule 3 CPC and Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 24 of 42 application for impleading LRs of deceased defendant is moved under Order 22 Rule 4 CPC. Further, if the application for impleading the LRs of defendant is not moved within time, suit abates and an application for setting aside abatement has to be moved under Order 22 Rule 9 CPC. These are merely procedures and these procedures cannot be allowed to suppress the ends of justice. In the present case the defendant was already exparte. Order 22 Rule 4 (4) CPC provides that if the defendant is exparte, then court may not implead the LRs of the deceased exparte defendant. However, in the present case even after the defendant was proceeded exparte, the plaintiff moved an application for bringing LRs on record. Therefore, contention of Ld Sr Advocate for defendant stating that application was not moved for setting aside the abatement and, therefore, subsequent proceedings were null and void, is misconceived as substance is important and not the form.

The second contention is with respect to the contents of the application. On the plain reading of the application under Order 22 Rule 4 CPC, plaintiff had mentioned that he was sole legal heir of his deceased wife and no issue was born out of their wedlock but he mentioned name of one Bharti as LR of his deceased wife on the ground that Bharti was claiming interest in the property of his deceased wife through some will. Court notice was issued to Bharti and it was ensured that she was served. After service of notice, the application was allowed and Bharti was proceeded exparte on account of her non appearance. Since everything was disclosed in the application, it cannot be said that plaintiff was playing fraud upon court. Merely not moving application under appropriate provision would not disentitle the plaintiff from claiming/pressing his legitimate claim. Till these proceedings there was no fraud, examining the proceedings of the earlier suit further, it worthwhile noting that this under Order XXII Rule 4 CPC application was moved on Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 25 of 42 13.03.1997 which was finally allowed on 08.07.1997. The contents of this application are very important which are here as under: "That the plaintiff visited Hyderabad on 26 th February 1997 and came to know that the sole defendant Smt Sushila Mehra has died. The application of the plaintiff is within the statutory period as he has to come to know of her demise only after his visit to Hyderbad, the application is thus within time.

The plaintiff being her husband is the only legal representative and is therefore under law entitled to all th estate left by her. The deceased defendant has no children.

That so far as the plaintiff knowledge goes the defendant has not left any will and in any case, she could not legally execute any will in respect of the properties held Benami by hereinafter That even though the deceased defendant had no children. One Smt Bharati wife of Sh Yeshwant Ramamorthy resident of 104, 3rd Cross Marred Pali, Secundrabad, Andhra Pradesh, claims interest in the property under some alleged will or otherwise which fact she does not disclose."

After moving this application in the court the plaintiff issued a notice dated 20.06.1997 which is Ex D1 and which has already been discussed in the previous issue wherein he stated that after the demise of his wife he has become the owner of the property and is entitled to claim the possession. He did not state here that any suit is pending between him and his wife or there is some other LR Bharti which he has stated in the application before the court and, therefore, possession be handed over to him as well as Bharti. A reply was received on 05.08.1997 which is Ex PW1/D1 wherein it was informed the plaintiff that property was sold by his wife in 11.10.1994 which was got registered on 04.12.1994 to one Surender Mahajan who is the owner of the suit property. Despite knowing this, he kept mum and did not inform the court. The factum of knowing about the sale of property by his wife to Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 26 of 42 defendant herein through reply dated 05.08.1997 is admitted by PW1/plaintiff in his cross examination. After getting the decree dated 07.05.1999, he issued notice dated 20.04.2000 to Surender Mahajan that plaintiff had got a decree in his favour by virtue of which he had become the owner of the property and the possession be handed over to him. The defendant herein in reply thereof issued a legal notice dated 1.05.2000 Ex DW1/46 wherein defendant herein stated that he had purchased the property from Sushila Mehra and he is the bonafide purchaser for a valuable consideration. After 1 and ½ years of receiving of this notice, present case has been filed. The plaintiff very much knew that he was not in possession of the property after 11.10.1994 and he gained knowledge about it on record on 05.08.1997 and despite that he kept mum and did not take any steps either to inform the court or even implead defendant herein as a party. The judgments of plaintiff with respect to his non requirement of impleading the defendant herein as a party in that suit has already been discussed and have been held inapplicable to this case. The main issue is in this case is with respect to the possession. Even if Doctrine lis pendens applied, it did not make sale deed null and void, it only became a voidable document at the hands of the plaintiff. Plaintiff did not exercise his right to get the sale deed annulled at that time. But as far as the issue of fraud is concerned, Section 17 of Indian Contract Act defines fraud which is here as under: "Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:

(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

(2) the active concealment of a fact by one having knowledge or Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 27 of 42 belief of the fact;

(3) a promise made without any intention of preforming it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent.

Ingredients of this section are not satisfied from the circumstances discussed above. It cannot be said that plaintiff had played fraud upon the court by not informing the court with respect to the sale of property. It may be termed as error of wisdom under a bonafide belief that doctrine of lis pendens was applicable and there was no requirement of informing the court but it cannot be said that fraud was played upon the court. Therefore, it cannot be said that said judgment and decree dated 07.05.1999 is a nullity in the eyes of law. Hence, issue No. 3, 12 and 14 are decided against the defendant and in favour of the plaintiff.

With respect to issue no. 13, it cannot be said that plaintiff could not have maintained a separate suit for declaration declaring the sale deed null and void being barred by principle of res judicata. The judgment titled as Ravinder Kumar Khanna Vs Prem Prakash Khanna & Ors 2017 93) AD (Delhi) 786 relied upon by Ld. Sr Advocate for defendant is not applicable to the facts in hand as in that case, the possession was with parents only and only a gift deed was executed by parents in favour of their daughter. Therefore, this suit is not barred by principle of res judicata and issue no. 13 is decided against the defendant and in favour of the plaintiff.

29. Issue No. 4 Whether the suit has been properly valued for the purposes of court fee and jurisdiction and the plaintiff has paid proper court fee thereon?

The onus to prove this issue is upon defendant. Ld counsel for plaintiff Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 28 of 42 has argued that plaintiff has valued the suit property for the purpose of court fee. He has argued that in para no. 13 of the plaint, he has separately valued every prayer for the purpose of jurisdiction as well as court fee and has already paid requisite court fee whereas Ld Sr Advocate for defendant has argued that plaintiff has filed the present suit for declaration for declaring sale deed dated 11.10.1994 null and void which was executed for consideration of Rs. 2 Crores, however, court fee has been paid only for Rs. 1 Crore which shows that suit was not valued properly for the purpose of court fee. Though in the present case declaration has been sought for declaring sale deed null and void. In para 13 of the plaint, the suit has been valued for the purpose of court fee for the relief of declaration and valuation is done @ Rs. 1 Lakh, however, sale deed executed which is sought to be null and void has been executed for consideration of Rs. 2 Crores. In view of the fact, the plaintiff came to know about the sale of the suit property vide reply dated 05.08.1997, it cannot be said that he was even in constructive possession of property. Since the plaintiff was not in the possession of the property at the time of filing the suit. , therefore, advalorem court fee needs to be paid. In this regard, reliance is placed upon Ashok Kalra Vs Akash Paper Board Pvt Ltd Page No. 177 & Sushrid Singh Vs. Randhir Singh 2010 (12) SCC 112. Therefore, it is held that court fee is deficient. This issue is decided against the plaintiff and in favour of the defendant.

30. Issue No. 5 Whether Smt Sushila Mehra had any child, viz. The defendant no. 2? if so, to what effect ?

The onus to prove this issue was upon plaintiff. Ld counsel for the plaintiffs have argued in the plaint itself, plaintiff had stated in para no. 1(e) of the plaintiff that no children was born out of the wedlock of the plaintiff and his second wife. In the application filed by plaintiff in the earlier suit for Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 29 of 42 impleading LR of his deceased wife, he had stated in para no. 8 that one Bharti wife of Sh Yeshwant Ramamorthy resident of Andhra Pradesh, claims interest in the property under some alleged will or otherwise which facts she does not disclose.

Ld counsel for the plaintiff has stated that this was done as a matter of abundant caution and in any case, the defendant has no right to challenge the proceedings of that suit.

On the contrary, Ld Sr Advocate for defendant no. 1 has argued that since this question has a bearing on this case and Bharati has been made defendant no. 2 in this case also by the plaintiff, therefore, this issue gains importance. He further argued that plaintiff has admitted that they had no child.

It is admitted in the cross examination of PW1 that Bharti was never adopted by plaintiff or his wife, and he submits that he is unable to understand why she was stated to be LR of deceased wife. No will as claimed in the application was placed on record at any point of time and in the judgment dated 07.05.1999, Bharti was referred to as daughter of deceased wife. It is an admitted fact that Bharti was not born out of the wedlock of the plaintiff and his wife Sushila Mehra. It is also clear from the record that she was not adopted by the couple and, therefore it cannot be said that Bharti was the daughter of the Sushila Mehra.

31. Issue No. 6 Whether the rights and obligations of Smt Sushila Mehra devolved upon the plaintiff in view of Section 15 of the Hindu Succession Act ?

Ld Sr Advocate for defendant has argued that all the rights and obligations of the deceased wife of the plaintiff had devolved upon the plaintiff himself in view of the Section 15 of the Hindu Succession Act, he being only Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 30 of 42 surviving LR of his deceased wife. This fact has not been disputed by Ld counsel for plaintiff who has not addressed any substantial argument thereof.

Section 15 of Hindu Succession act talks only about the inheritance and not obligations. It is only with respect to inheritance of the property in favour of LRs given in the list. It does not talk about obligations, therefore, this issue is misconceived and is liable to be struck down.

32. Issue No. 7 Whether the suit is barred under Order 2 Rule 2 of CPC ?

Onus to prove this issue was upon defendant. Ld Sr Advocate for defendant has argued that since plaintiff had come to know about the fact that the property had been sold by his wife to defendant no. 1 herein, he ought to have made defendant no.1 as a party in that suit and ought to have claimed relief of possession and cancellation of sale deed in that suit. Ld counsel has further argued that since those reliefs were not claimed therein, now they are barred under order II Rule 2 CPC.

Ld counsel for plaintiff has vehemently opposed the averments/arguments of the Ld Sr Advocate for defendant and has argued that since his rights were not crystallized before passing of the judgment and decree dated 07.05.1990, therefore, he could not have claimed any relief in that suit. He has also relied upon Bharat Karsondas Thakkar Vs Kiran Construction Company (2008) 13 SCC 658 to support his argument that he could not amend the suit and implead the defendant. In addition to these arguments, he has also argued that since the property was sold during th pendency of the suit, therefore, doctrine of Lis Pendens applied defendant herein was bound by the judgment passed by the court and he was not a necessary party in that suit. He has taken support of judgment Sarvinder Singh Vs. Dalip Singh 1996 Scale (6) 59. He has argued that separate cause of action has been arisen and right to sue in his favour has accrued only after Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 31 of 42 the passing of judgment dated 07.05.1990 delcaring him to be the owner of the suit property and therefore, this issue cannot be said to be barred under Order 2 (2) CPC.

Order 2 Rule 2 CPC is defines here as under: " To make the rule applicable, the following three conditions must be satisfied namely

(i) The second suit must be in respect of the same cause of action as that on which the previous suit was based;

(ii) In respect of that cause of action, the plaintiff was entitled to more than one relief; and

(iii) Being thus entitled to more than one relief, the plaintiff without leave of the court omitted to sue for the relief for which the second suit has been filed."

In order to fall under Order II Rule 2 CPC, cause of action should be same and the litigating party should also be same, however, the earlier suit was between the plaintiff and his wife and second suit is between plaintiff and the defendant, who is the subsequent purchaser of the suit property. Therefore, Order II Rule 2 CPC does not apply. This issue is decided against the defendant and in favour of the plaintiff.

33. Issue No. 8 Whether the suit is bad for non joinder for M/s Paramount Products Pvt Ltd ?

The onus to prove this issue was upon parties. This issue was not pressed by counsel for parties and is struck down.

34. Issue No.1 Whether the suit is within time ?

Ld counsel for plaintiff has argued that present suit is for declaration declaring the sale deed executed by the wife of the plaintiff dated 11.10.1994 and registered on 14.11.1994 in favour of the defendant herein as null and void. He has further argued that decree of possession has also been prayed in respect of the suit property. A decree of damages is also being sought. Ld counsel for plaintiff has submits that suit for declaration declaring the plaintiff Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 32 of 42 as owner of the suit property herein was filed by him against his wife Sushila Mehra which was decreed on 07.05.1999 and, therefore, his rights were crystallized on that day and he had filed the present suit in October 2001 before Hon'ble High Court and suit is well within the period of limitation. He has argued that limitation for filing suit for recovery of possession is twelve years and Article 65 of Schedule to the Limitation Act shall apply. He has relied upon judgments i.e. (1) Ashok Kumar Vs Mohd Rustam & Anr 227 (2016) DLT 385, (2) State of Maharashtra Vs Pravin Jethalal Kamdar (Dead by LRs) AIR 2000 SC 1099 (3) Ashok Kumar Vs. Gangadhar & Anr AIR 2007 AP 145 (4) Pavan Kumar & Anr Vs. K. Gopalkrishna & Anr 1998 (2) ALD 421 (5) Mechineni Chokka Rao Vs Sattu Sattamma 2006 (1) ALD 116 (6) Abdulla Siddiq & Anr Vs. U F M Uday 2015 ILR(Kar) 5811 (7) Boya Pardeshappa & Anr Vs. G. Raghavendra and others in his support of his arguments.

On the other hand, Ld Sr. Advocate for defendant has argued that suit is hopelessly barred by limitation as vide legal notice dated 20.06.1997 Ex D1, the plaintiff had demanded the possession back from M/s Paramount Products Pvt Ltd which were earlier the tenant stating that his wife had expired and he was the only legal heir to which a reply dated 05.08.1997 which is Ex PW1/D1 was filed by M/s Paramount Products Pvt Ltd wherein the factum of selling the property by wife of the plaintiff to the defendant no. 1 herein was brought to the notice of the plaintiff. Ld Sr Advocate for defendant no. 1 has argued that this fact has already been admitted by plaintiff in the cross examination. He has also submitted that limitation of three years for filing present suit for declaration had started from the date when the plaintiff had gained the knowledge about the selling of the property by his wife to the defendant no. 1 and it was through Ex PW1/D1 dt 05.08.1997. He submits that for the purpose Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 33 of 42 of this suit, limitation shall be three years as the relief of possession is not an independent relief and is flowing out of relief of declaration only. Ld counsel has submitted that suit is hopelessly barred by the limitation and suit is liable to be dismissed on this ground alone. In order to support his contention, he has relied upon judgments i.e. Razia Begum Vs. DDA & Ors 215 (2014) DLT 290 (DB), Raj Kumari Garg Vs S.M. Ezaz & Ors 2012 (132) DRJ 108 (DB), Madhur Bhargava & Ors Vs. Arati Bhargava & Ors 2013 (135) DRJ 62 (DB), Mukhinder Singh Vs Gurbux Singh 2012 (4) ILR (Del) 578, Vishwambhar & Ors Vs. Laxminarayan (dead) Thr LRs & Anr (2001) 6 SCC 163.

Ld counsel for plaintiff has submitted that Article 65 of the Limitation Act shall apply in the present case. The judgments relied upon by counsel for plaintiff are in respect of the suit for declaration of title along with relief of possession. In all the cases relied upon by counsel for plaintiff, relief of possession was main relief. In the first judgment titled as Ashok Kumar Vs Mohd Rustam & Anr 227 (2016) DLT 385, particularly the issue was with respect to the possession and it was held that without establishing the title of the property, no decree of possession could be passed and, therefore, main relief was of possession and the limitation was 12 years, however, in the present case the main issue is declaring the sale deed as null and void and relief of possession is flowing out it so this judgment is not applicable to the fact in hand.

In the second judgment relied by plaintiff's State of Maharashtra Vs Pravin Jethalal Kamdar (Dead by LRs) AIR 2000 SC 1099 of the plaintiff, the plaintiff had filed a suit for declaring validity of sale deed null and void in that case also the Article 65 of Limitation Act was applicable and limitation period was 12 years, however, on reading the entire facts in the judgment it Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 34 of 42 was noticed that sale deed and the order which were under challenge in that case were void abinitio and without jurisdiction. Therefore, relief of declaration was in a way not required and limitation was held to be 12 years for possession. On the contrary in the present case, possession has to be taken from the defendant by plaintiff after getting the sale deed dated 11.10.1994 as null and void. This sale deed was a voidable document at the hands of plaintiff in view of the applicability of doctrine Lis Pendens which has already been discussed in the earlier issue. Therefore, this judgment is not applicable to the facts.

In Ashok Kumar Vs Gangadhar & Anr AIR 2007 AP 145, Pavan Kumar & Anr Vs.K. Gopalakrishna AIR 1998 AP 247, mechineni Chokka Rao Vs Sattu Sattamma 2006 (1) ALD 116 (Supra) relied upon by plaintiff suit for possession was based upon title and it was held that Article 65 of Schedule to Limitation shall apply and not article 58. These judgments are also not applicable to the case in hand in view of the same reasoning as was given for Ashok Kumar (Supra).

In Abdulla Siddiq & Anr Vs. U F M Uday 2015 ILR(Kar) 5811 relied upon by counsel for plaintiff it is held that: " By a reading of both provisions of Articles 58 and 65, makes it clear that the limitation, for possession of immovable property based on title, is 12 year, when the possession of defendants becomes adverse to the plaintiff. To obtain any other declaration than the title, is three years, when the right to sue first accrues. Hence, in the facts and circumstances of the present case, only Article 65 applies and not Article 58 of the Limitation Act."

This judgment clearly says that in case the declaration is with respect to title, the limitation for possession of immovable property is 12 years and to obtain any other declaration other than title, limitation is three years from the date when right to sue first accrued. This judgment is more in favour of Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 35 of 42 defendant render than plaintiff. In the present case also, suit is for declaring sale deed null and void. The sale deed was voidable document at the hands of the plaintiff and he had not availed his remedy to get the sale deed annulled in his earlier suit itself. Therefore, limitation for filing this suit was three years and not 12 years.

Ld counsel for plaintiff has also relied upon Boya Pardeshappa & Anr Vs. G. Raghavendra and others 2014(4) ALT 55 wherein it is held that: " A Schedule has been appended to the Act prescribing various periods of limitation. The schedule has been suitably divided into three different divisions dealing with suits, appeals and applications respectively. Each division has been again divided into various parts dealing with specified matters. The first division thereof deals with various suits to be filed containing Articles 1 to 113; the second division deals with the appeals containing Articles 114 to 117; and the third division deals with applications containing Articles 118 to 137. The first division of the schedule in turn has been divided into ten parts. Part1 thereof deals with suits relating to accounts; PartII with suits relating to contracts; PartIII with suit relating to declarations; PartIV with suits relating to decrees and instruments; PartV with suit relating to immovable property; PartVI with suits relating to movable property; PartVII with suits relating to tort; PartVIII with suits relating to trusts and trust property; PartIX with suits relating to miscellaneous matters; and PartX with suits for which there is no prescribed period. While partIII of first division deals with suits relating to declarations; PartV thereof deals with suits relating to immovable property. In PartIII, there are three Articles, namely 56, 57 and 58. While Article 56 prescribes three years period of limitation to institute a suit for declaration that the instrument issued or registered is a forged one; Article 57 prescribes an equal period for declaring the alleged adoption as invalid and Article 58, however, prescribes albeit an equal period in respect of any other declaration. It is obvious that Article 58 is in the nature of residuary provision among the declaratory suits. Indubitably the relief of declaration can be sought for Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 36 of 42 in respect of an immovable property or movable property, or in respect of an instrument, or in respect of a decree, or in respect of an adoption. Thus, various types of declaratory reliefs can be sought for pertaining to those categories. Therefore, the relief of declaration alone appears to be not the criterion for prescribing the period of limitation but the subject matter of the suit in respect of which the declaration is sought for appears to be germane for consideration.

One shall not be oblivious of the fact that partV of first division specifically deals with category of suits relating to immovable property. Coming in the domain of partV, Articles 64 and 65 specifically deal with the period of limitation to institute a suit for possession of immovable property based on previous possession and to institute a suit for possession of immovable property or any interest therein based on title. Having regard to the categorization sought to be made in the Schedule, although PartIII of the first division thereof apparently deals with suits relating to declarations, that part does not deal with suits pertaining to immovable property inasmuch as PartV thereof exclusively deals with the suits pertaining to immovable property, prima facie it appears, therefore, that notwithstanding the fact that the suit is filed for the relief of declaration but the suit is in respect of an immovable property, Article 58 of the Act has no application, instead Articles 61 to 67, which specifically deal with the suits relating to immovable property, seem to be applicable.

A suit for the relief of declaration simpliciter is not maintainable as per the mandate contained in Section 34 of the Specific Relief Act. If the suit is filed for declaration of title over an immovable property and for the consequential relief of either possession or injunctions, if it is said that still Article 58 governs, it does not stand to reason, nay appears to be somewhat odd. A suit for possession or a suit for perpetual injunction obviously is governed by the relevant Article in PartV of the first division when that suit pertains to immovable property. Article 58, in my considered view, will not fall foul of Article 65 of the Act. In the event of any inconsistency in between the two Articles mentioned in the Schedule, the endeavour of the Court shall be to give a Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 37 of 42 harmonious construction having due regard to the scheme and object of the Act."

This judgment also talks about declaration of title over an immovable property which is not the factual matrix of the present case. Therefore, this judgment does not apply to the instant case.

Now coming to the judgments relied upon by Ld Sr Advocate for defendant no. 1.

The judgment titled as Razia Begum Vs. DDA & Ors 215 (2014) DLT 290 (DB) relied upon by Ld Sr Advocate for defendant no. 1, is not applicable to the facts in hand as in that case relief of possession was sought after expiry of 12 years which is not so in the present case. Therefore, this cannot be said to be applicable on facts.

In Raj Kumari Garg Vs S.M. Ezaz & Ors 2012 (132) DRJ 108 (DB), relied upon by defendant no. 1 only suit for possession was filed without any relief of declaration, so this also not applicable.

In Madhur Bhargava & Ors Vs. Arati Bhargava & Ors 2013 (135) DRJ 62 (DB), it was held that "On the issue of limitation, the plaintiffs firstly contended that since the 1983 family arrangement was void abintitio (being induced by fraud, coercion, undue influence and misrepresentation), there was no need to seek a declaration to this effect. Thus, no limitation period would be applicable to such a suit. In this connection, reliance was placed on Prem Singh Vs Birbal (2006) 5 SCC 353. Furthermore, relying on the decision State of Maharstra Vs Pravin Jethalal Kamdar (dead) by Lrs AIR 2000 SC 1099, it was contended that when possession is taken under a void document, then suit for recovery of possession simpliciter can be filed, without the need to seek a declaration about invalidity of the documents. Moreover, even if such relief of declaration is sought along with the relief of decree for possession, it would be governed by Article 65 and not Article 58. It was further contended that Kavi Kumar's right to sue for recovery of possession of the suit property arose only upon the death of Savitri Devi, on 07.03.1990, since during her liftime, she had a life interest in it. To support this argument, plaintiffs placed reliance on M.V.S. Manikayala Rao Vs. M. Narasimhaswami and others AIR 1966 SC 470 stating that adverse possession begins only when the plaintiff become Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 38 of 42 entitled to possession. To support the contention that Article 65 would apply to the case at hand, plaintiffs also relied on Ramiah Vs N. Narayana Reddy (dead) by Lrs (2004) 7 SCC 541. Lastly, in response to the defendants' claim of title based on adverse possession, the plaintiffs relied on T. Anjanappa and ors Vs. Somalingappa and anr. (2006) 7 SCC 570 to contend that the defendants were required to show by clear and unequivocal evidence that their possession was hostile to the real owner and amounted to denial of their title to the property claimed.

The suit from which appeals have been preferred was one for recovery of possession and mesne profits. The plaintiff's basis for recovery of possession has been that the title in the suit property vested in their predecessorininterest, Kavi Kumar. This title was based on the decree in the previous suit under which ownership rights over the second floor were conferred on him subject to the life interest of Savitri Devi, his mother. Thus, the question that arises is what, if any would be the period of limitation applicable for the present suit.

When cancellation may be ordered (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall not on the copy of the instrument contained in his books the fact of its cancellation.

It is trite that to decide a question whether the suit is barred by limitation, averments in the plaint have to be read without looking into the defence. It is averred in the suit that Kavi Kumar was induced by coercion, undue influence, misrepresentation and fraud to enter into the family arrangement. A family arrangement is no doubt an agreement. Section 19 and 19A of the Indian Contract Act, 1872 provide that an agreement consent to which is obtained by any of the aforementioned four means in voidable at the option of the party whose consent was so caused. Thus, the family arrangement was voidable, in the terms of the pleadings in the suit, at the option of Kavi Kumar. Section 31 of the Specific Relief Act provides for a relief of a cancellation of an instrument which is void or voidable. Article 59 restricts the period of cancelling an instrument as 3 years starting from the time of the plaintiff's knowledge of the fact entitling cancellation. Plaintiffs relied on the Supreme Court's decision in Prem Singh (Supra) to contend tha when a transaction/instrument is void ab intio, there is no need for a declaration stating so. However, the Court in Prem Singh also held that the Limitation Act would continue to apply in cas of a plaintiff who due to a void transaction, is not in possession of his property. It held that the Limitation Act would continue to apply since a right by reason of adverse possession may still be claimed. Here too, Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 39 of 42 the facts present a similar situation. However, it must be noticed that the allegation that the family arrangement was induced by coercion, undue influence, misrepresentation and fraud, if assumed to be correct, causes the agreement (family arrangement) to be voidable at only Kavi Kumar's instance. The family arrangement would not become void ab initio. Therefore, the three year limitation period to get the family arrangement cancelled would still apply. The plaint states that the cause of action first arose upon the death of Savitri Devi who had a life interest in the suit property. Thus, it can be assumed that Kavi Kumar had knowledge about the voidability of the family arrangement in 1990. The suit, which was instituted in 2000, was , thus, beyond the limitation period envisaged in Article 59, and therefore barred by time."

This judgment is squarely applicable to the facts in hand as the sale deed under challenge was a voidable document at the hands of plaintiff as discussed in issue no. 10 and limitation would be three years from the date when plaintiff came to know about the sale of suit property by his wife to defendant no. 1.

In Mukhinder Singh Vs Gurbux Singh (Supra), a suit for possession was filed along with mesne profits but sale deed was a bone of contention which was not challenged and it was held that limitation was only three years and not 12 years. This judgment is also applicable to the present case.

It is writ large from these judgments discussed above that limitation period for challenging the sale deed, which was a voidable document at the hands of plaintiff was three years from the date of gaining knowledge i.e. when his right to sue accrued i.e. on 05.08.1997. However, the present suit has been filed after expiry of three years from 05.08.1997 which had ended on 04.08.2001 and is, therefore, hopelessly barred by limitation.

This issue is decided against the plaintiff and in favour of the defendant.

35. Issue no. 18. Whether the plaintiff is entitled to a decree for possession in respect of the suit property ?

Since this suit has not been filed within period of limitation and issuse Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 40 of 42 no. 1 is decided against the plaintiff. LRs of deceased plaintiff not entitled to decree of possession. This issue is decided against the plaintiff and in favour of the defendant.

36. Issue no. 17 Whether the counter claim of the defendant is maintainable without the payment of ad valorem court ?

Since no relief of possession was sought, therefore, section 7 (iv) (c) of Court Fee Act is applicable. Defendant/Counter claimant was at liberty to value his suit at his own discretion. This issue is decided in favour of the defendant and against the plaintiff.

37. Issue No. 11 Whether plaintiff is entitled to recover any amount on account of damages and/or mesne profits from the defendant? If so, at what rate and for what period?

Since issue no. 10 is decided in favour of the defendant, plaintiff is not entitled to recover any amount on account of damages or mesne profits from defendant. Hence, issue no. 11 is decided against the plaintiff and in favour of the defendant.

38. Issue No. 15 If issue no. 14 is decided in negative and against the defendant, whether the defendant is entitled to refund of Rs. 2.01 Crores paid under the sale deed dated 1.10.1994 ? If so, from whom?

Since issue no. 14 is decided against the plaintiff, defendant is not entitled to refund of Rs. 2.01 Crores. Hence, this issue is decided against the plaintiff and in favour of the defendant.

39. Issue No. 16 Whether the defendant is entitled to recover any interest? If so, at what rate and for what period?

Since issue no. 14 is decided against the plaintiff, defendant is not entitled to recover interest.

40. Issue No. 19 Whether the plaintiff is entitled to any Nand Kishore Mehra Vs. Surender Mahajan & Anr Page No. 41 of 42 damages/mesne profits on account of alleged unauthorized use and occupation of the premises by the defendant and, if so, at what rate and for what period ? Whether he is entitled to any interest ?

Since issue no. 10 is decided in favour of the defendant, plaintiff is not entitled to any damages/mesne profits. Hence, this issue is decided against the plaintiff and in favour of the defendant.

41. Relief.

42. Suit of the plaintiff is dismissed. Counterclaim of the defendant no.1 also stands dismissed. No order as to cost. Decree sheet be prepared accordingly.

43. File be consigned to record room.

Announced in the open                      ( VANDANA JAIN)
court on  31.03.2018              ADDITIONAL DISTRICT JUDGE07/SE
                                       SAKET COURTS/NEW DELHI




Nand Kishore Mehra Vs. Surender Mahajan & Anr                    Page No. 42 of 42

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Sh. Nand Kishore Mehra vs Sh. Surender Mahajan S/O Sh D.D. Mahajan on 31 March, 2018