Indian Kanoon - Search engine for Indian Law

Delhi District Court

M/S. Trade International Huf vs M/S. Rajiv Pharmaceuticals on 28 August, 2021

                     IN THE COURT OF SH. AJAY GARG,
                      ADDITIONAL DISTRICT JUDGE­01,
                    PATIALA HOUSE COURTS, NEW DELHI

CS No. 57411/2016


1. M/s. Trade International HUF
through its Karta Shri M.M. Rai Khanna
Son of Late Shri D.D. Khanna,
r/o A­2/35, Safdarjung Enclave, New Delhi­110029.

2. Shri Gurdivinder Singh Brar,
son of Shri Mahinder Singh Brar
r/o Vill & P.O. Kutian Wale,
Tehsil Muktsar, Distt. Faridkot, Punjab.
                                                                 ........Plaintiffs
                                                     Versus
1. M/s. Rajiv Pharmaceuticals,
through its Proprietor/Prtner Shri Tulsi Dass Verma,
r/o 4/24, Subash Nagar, New Delhi.
2. Shri Durgesh Pal Sachdeva,
r/o B­6/104, Safdarjung Enclave, New Delhi.
3. Shri M.C. Sud,                                                (Expired)
son of Shri Faqir Chand Sud,
r/o B­6/104, Safdarjung Enclave, New Delhi­110029.
4. Shri Om Prakash Sud,
son of Shri Bansi Lal Sud,
r/o 5, Pankaj Mahal, Dinshaw Wachha Road,
Church Gate, Bombay.
5. M/s. Jalan & Company,                                         (Ex­parte)
through Shri Mange Lal Jalan, Partner,
185, Sheikh Menon Street, Bombay­400002.
                                                              .........Defendants
CS No. 57411/16
Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors            Page No. 1 of 59
                     Date of Institution  :                   12.01.1990
                    Judgment reserved on :                   18.08.2020
                    Judgment announced on:                   28.08.2021

JUDGMENT

1. Present suit for possession, mesne profits and mandatory injunction has been filed by the plaintiffs against the defendants. Brief facts as culled out from the plaint are :

(a) Plaintiff no.2, namely Mr. G.S. Brar was granted perpetual lease hold rights of the plot No. B­6/104, Safdarjung Enclave, New Delhi, measuring 405 sq. yds.

(hereinafter referred to as suit property) vide perpetual lease deed dated 31.03.1976 by the President of India. The deed was registered by the Sub­Registrar, New Delhi. Since plaintiff no.2 was residing permanently in Punjab and it was difficult for him to raise any construction over the said plot. Therefore, keeping in view of the said difficulty to raise the construction, he entered into an agreement for construction with the plaintiff no.1 vide deed of agreement dated 12.02.1982 and authorized them to raise construction on the said plot after getting the plans etc. sanctioned and complete the building and also to obtain the completion certificate.

(b) Plaintiff no.2 handed over the physical possession of CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 2 of 59 the vacant plot to plaintiff no.1 for completion of construction of the building etc. On 19.02.1982, plaintiff no.2 entered into an agreement to sell with Smt. Shashi Lata Khanna and agreed to sell the plot and building to be constructed thereon to her after its completion, on sale consideration. After the agreement of construction was executed, the building plans were got sanctioned on or about 21.05.1983 by plaintiff no.1. Plaintiff no.1 constructed basement, ground floor, first floor and second floor on the said plot whose carpet area is approximately 5000 sq. ft. Thereafter, plaintiff no.1 opened his office in the basement of the said building although the final phase of the construction was being done in the year 1983 and electricity, water and completion certificates were not granted by the authorities upto that time.

(c) On 24.06.1983, Sh. M.M. Rai Khanna, Karta of plaintiff no.1 had gone to Bombay and on the same day in the night during his absence from Delhi, defendant no.1 criminally trespassed into the said property No. B­6/104, Safdarjung Enclave, New Delhi­10029 and thereby got illegal possession of the ground floor, first floor and second floor of the building. Sh. Tulsi Das Verma who was a proprietor / partner of defendant no. 1 was aware that Sh. M.M. Rai Khanna was not in Delhi as he himself had seen CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 3 of 59 him off from Palam Airport at the time of flying for Bombay from New Delhi and he, therefore, took advantage of the absence of Sh. M.M. Rai Khanna. After some time, they put their lock on the lock of plaintiff no.1 on the basement of the building also. The materials i.e. for construction, plywood and other goods were lying scattered all over the place. The basement was being used as an office by the Trade International because it had no other office else where.

(d) All their account books, office material, equipments and furniture were also lying in the basement along with other building and sanitary material. While in the Barsati Floor other building material and electrical goods were stored. The defendants took away those goods which were of more than Rs.50,000/­ and those goods were not returned so far. When plaintiff no.1 was informed about the trespass, he came to Delhi immediately and lodged a complaint with the police. The police of PS Vinay Nagar, New Delhi challaned Sh. Tulsi Das Verma along with three others namely defendant no.2, Tilak Raj and Pradip Chand who were trespassers and were being prosecuted under Section 448/34 which was later on amended to 468/471/420 IPC. The said complaint is still pending in the criminal court.

CS No. 57411/16

Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 4 of 59

(e) Defendant no.1 had certain business relations with Sh. M.M. Rai Khanna who was Karta of plaintiff no.1 and for that purpose, the partners of defendant no.1 used to visit the office of Sh. M.M. Rai Khanna. Smt. Shashi Lata Khanna wife of plaintiff no.1 was running her own business under the name and style of Rainbow Paints. Plaintiff no.1 used to help her in her business and she used to give various blank papers duly signed by her to him which were ordinarily kept in the office of Sh. M.M. Rai Khanna. The partners of defendant no.1 being regular visitors, knew this fact and stole some of those papers. When the plaintiffs came to know about it, a complaint was made to police immediately against Tulsi Das Verma and Durgesh Paul. They forged a blank signed paper of Smt. Shashi Lata Khanna into a letter dated 03.06.1983, in which it was written that M/s. Rainbow Paints had let out the entire property to defendant no.1 on a monthly rent of Rs.2500/­ and in consideration of the same, a sum of Rs.1,35,000/­ bearing interest at the rate of 18% per annum was paid to Sh. Shashi Lata Khanna and the said amount would be adjusted towards the monthly rent of Rs.2500/­.

(f) In the said letter, it was also mentioned that the amount of Rs.1,35,000/­ was paid on 13.02.1982 Rs.45,000/­, on 13.07.1982 Rs.20,000/­, on 17.07.1982 CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 5 of 59 Rs.13,000/­, on 17.07.1982 Rs.7,000/­ and on 22.07.1982 Rs.50,000/­.

(g) On the basis of said forged letter defendant no.1 instituted a suit for perpetual injunction, claimed tenancy rights in the property. Defendant no.1 also applied for a temporary injunction and ex­parte injunction was granted but later on, the same was vacated and appeal against the said order was also dismissed by the first Appellate Court. Thereafter, defendant no.1 undertook to vacate the occupation and deliver the vacant physical possession of the entire portion of property to the plaintiff on the understanding that the defendants in that suit shall not press for costs to which they agreed. Defendant no.1 withdrew the suit which was dismissed on 22.10.1983. In the meanwhile at the instance of one Sh. K.L. Sud, a mutual friend of Sh. Man Mohan Rai Khanna and defendant no.4, Sh. M.M. Rai Khanna gave power of attorney to defendant no. 2 & 4 on 23.09.1983 for facilitating the plaintiffs to get back the possession.

(h) Plaintiff no.2 who is the owner of the suit property is neither a party in the said alleged forged letter nor the plaintiffs had authorized anyone to let out the property. Therefore, plaintiff no.2 is not bound by any transaction or document in which he is not a party. Plaintiff no.2 had CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 6 of 59 never let out the suit property to defendant no.1 and therefore, defendant no.1 had no interest in same. As per the lease agreement between plaintiff no.2 who is a Lessee and the DDA, the said suit property and the building thereon could only be used for residential purposes and for no other purpose. In 1983, the bathroom and kitchen in the building was not completed and no permanent electricity connection installed in the building. The sanitary fittings were partly installed. The material i.e. for construction and plywood and other wooden goods were lying scattered all over the place. The basement was being used as an office by the Trade International.

(i) Defendant no.1 after trespassing into the ground, first and second floors of the suit property which was in the possession of plaintiff no.1 took away/removed all the aforesaid articles etc. of plaintiff no.1 and thereafter, illegally put a lock on the lock of the plaintiff no.1 on the basement also. The business of plaintiff no.1 was being run till the time a lock was put by defendants on the lock of plaintiff. Defendant no.1 afterwards illegally delivered possession of some portions of the building to defendants no.2 to 5 without the consent of the plaintiffs. The defendants, after coming into the possession illegally, made various unauthorized additions and alternations in CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 7 of 59 the property to such an extent that the building constructed in accordance with the sanctioned site and building plans has not remained the same. Thus, the plaintiffs in these circumstances are also entitled to a decree for possession of the plot and building no. B­6/104 ; decree for mesne profits ; decree for mandatory injunction.

2. Upon service of summons common written statement (amended later on) was filed by defendants no. 1, 2 and 4 and in the preliminary objections of the amended written statement it was averred that the present suit is barred by limitation as Sh. M.M. Rai Khanna of plaintiff no.1, in his cross­examination in case FIR No. 362/83 PS Vinay Nagar under Section 48/34 IPC registered on the complaint of his wife Smt. Shashi Lata Khanna, stated that he had purchased the plot of land in question in February, 1982 and paid total sale consideration to plaintiff no.2. It is further averred that in the present suit he has alleged that he was dispossessed from the house in question on 24/25 June, 1983 and the suit has been filed by him in the year 1990. Hence, the same is barred by limitation.

2.1 It is further averred that the plaint is liable to be rejected since the suit has not been signed, verified and instituted by a proper person i.e. the alleged owner of the suit premises viz. the plaintiff no.2. Further plaintiff no.2 has neither signed the plaint nor vakalatnama.

CS No. 57411/16

Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 8 of 59 Plaintiff no.1 has no legal right to seek alleged recovery of possession of the suit premises or any part thereof or to claim mesne profits etc. from either of the answering defendants. Further the suit discloses no cause of action and is also barred by virtue of provisions contained in Section 50 of the Delhi Rent Control Act.

2.2 It is further averred that the suit is bad for non­joinder of Smt. Shashi Lata Khanna, wife of Sh. M.M. Rai Khanna, who is a necessary and proper party to the suit and who in fact inducted defendant no.1 as tenant in the suit premises. On the complaint of Smt Shashi Lata Khanna only police registered a case bearing FIR no. 362/83, PS Vinay Nagar against defendant no.2 and two others and since then they are facing criminal case under Section 448/468/471/420/34 IPC. Plaintiff no.2 had also executed a General Power of Attorney in favour of Smt. Shashi Lata Khanna on 30.06.1981 in respect of the land in question and on the basis of this GPA she had let out the suit property to defendant no.1 vide rent note dated 02.06.1983. Plaintiff no. 1 has also admitted in his cross­examination in the said criminal case that a sum of Rs.1,35,000/­ as mentioned in rent note was received by him from Sh. T.D. Verma and defendant no.2.

2.3 It is further averred that the present suit is gross abuse of process of the Court as plaintiff has concealed that M/s Jalan & Co (defendant no.5) of which Sh. M.M. Rai Khanna was the attorney had CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 9 of 59 filed a suit being no. 252/1984 for permanent injunction against defendants no. 2, 4 and Sh. M.M. Rai Khanna wherein he had also filed written statement.

2.4 It is further averred that Sh. Durgesh Paul filed suit bearing no. 335/1984 (Durgesh Paul Vs. M/s Trade International through Sh. M.M. Rai Khanna as it's Karta) wherein a decree of permanent injunction has been passed against plaintiff whereby plaintiff no.1 was restrained from dispossessing Sh. Durgesh Pal from the basement and second floor of the premises in question and the suit was decreed on 08.11.1985.

2.5 It is further averred that the plaintiff no.1 filed an application under Order IX Rule 13 of CPC for setting aside the judgment and order dated 08.11.1985, but the same was dismissed by Ld Civil Judge vide order dated 15.07.2000. An agreement to sell of the disputed plot of land was entered into between plaintiff no. 1 and plaintiff no.2 on 09.05.1981 and pursuant to the said agreement to sell sum of Rs.1,25,000/­ was paid by Sh. M.M. Rai Khanna to Sh. Gurdivinder Singh Brar vide pay orders dated 08.05.1981, 29.06.1981, and 29.06.1981 and on 30.06.1981 a consolidated receipt in sum of Rs. 1,25,000/­ was executed by Sh. Gurvinder Singh Brar in favour of Mr. M.M. Rai Khanna before Sub­Registrar, Ghaziabad, U.P. CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 10 of 59 2.6 It is further averred on 30.06.1981 Sh. Gurdivinder Singh Barar also executed a registered will dated 30.06.1981 in favour of Sh. M.M. Rai Khanna and a General Power of Attorney dated 30.06.1981 in favour of Smt. Shashi Lata Khanna W/o Sh. M.M. Rai Khanna. On merits rest of the contents of the plaint are denied by the defendants.

3. Separate written statement was filed by defendant no.5 wherein it was contended that the suit is barred by virtue of provisions contained in Section 50 of Delhi Rent Control Act ; plaint does not disclose any cause of action against the defendant ; bad for non­joinder of Smt. Shashi Lata Khanna w/o Sh. M.M. Rai Khanna. Further the plaintiff has concealed material facts as Sh. M.M Rai Khanna in his written statement and reply to application under Order XXXIX Rule 1 and 2 of CPC filed on 28.05.1984 in suit no. 252/1984 titled M/s Jallan & Co Vs. Durgesh Pal and others had categorically stated that the answering defendant is not in possession of the premises in question and the said premises in questions is still with him. On merits rest of the contents of the plaint are denied by the defendant.

4. The plaintiff filed replication to the written statements of defendants no. 1, 2 and 4 wherein it was averred that Smt. Shashi Lata Khanna has no title, interest or concern with the suit property and as such she is neither a necessary nor a proper party in the suit. As regards the allegation of execution of Power of Attorney in favour of Smt. CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 11 of 59 Shashi Lata Khanna, she had never entered into any agreement with plaintiff No.2 and no Power of Attorney was executed by the plaintiff No.2 to complete the sale. No document was ever executed in favour of Smt. Shashi Lata Khanna. As a matter of fact, a broker had given forged documents to them alleged to have been executed by plaintiff No.2 which later on found as forged and thus there was no transaction or document between her and plaintiff No. 2. Therefore, neither she had any right or title to grant any Lease nor she had ever let out the property to defendant No.1. As a matter of fact, she had no authority to let out the property to anyone. The alleged tenancy deed (Rent Deed) is forged and false document.

4.1 It is further averred that a fraud had taken place with Shri M.M.Rai Khanna when Daleep Puri alias Deep Puri, cousin of Shri G.S.Brar had forged the signature of G.S. Brar and executed all these documents. When the fraud came to the light, Shri G.S.Brar issued/ executed fresh documents in regard to the property revoking all the documents. The fresh documents are in possession of Shri M.M.Rai Khanna. All the new documents executed by Mr. Brar for the sale of property in question has been witnessed by Shri T.D.Verma i.e. partner / proprietor of defendant no.1 as attesting witness.

4.2 It is further averred that the rent deed dated 02.06.1983 is totally forged and fabricated. The original note has not been produced CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 12 of 59 by the defendant either in criminal court or before the police or before this Court. The original note has not seen the light of the day till date.

4.3. With regard to payment it is averred that the same was received by Mrs. S.L. Khanna from M/s Asian pharmaceuticals who owed a lot of money to Mrs. S.L. Khanna. This can be proved from the account books of M/s Asian Pharmaceuticals as well as from the accounts books of Mrs. S.L. Khanna which are audited and has been accepted by the Income Tax Authorities as true and correct. No such cash payment was ever received by any person specially Mrs. S.L. Khanna and Mr. M.M. Rai Khanna. The payment was made by M/s Rajiv Pharmaceuticals to M/s Trade International against the services rendered by M/s Trade International as Liaison charges. Payment of Rs. 7,000/­ was received from M/s Asian Pharmaceuticals against the liability of M/s Asian Pharmaceuticals towards M/s Trade International. No amount of Rs.30 thousand have been received by any person specially by Mrs. S.L. Khanna and Mr.M.M. Rai Khanna. Rs.50,000/­ vice cheque dated 22.7.1982 was received by M/S Trade International from M/s Asian Pharmaceuticals against the liability of M/s Asian Pharmaceuticals towards Trade International. The same can be verified from the accounts of M/s Trade International and M/s Asian Pharmaceuticals. The account of M/s Trade International has been properly audited and accepted by the Income Tax Authorities.

CS No. 57411/16

Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 13 of 59 4.4 It is further averred that Mr. M.M Rai Khanna had never admitted to have received Rs.1,35,000/ in his cross­examination. He had informed the Court in what way and in what manner he had received the money. As regard to the amount of Rs.10 lakhs, no such amount was ever due towards defendant no.1. Shri M.M. Rai Khanna never had any dealing with defendant no.1 as mentioned or at all. Plaintiff no.1 had rendered Liaison services to defendant no.l for which Rs.13,000/­ were paid by defendant No.1 to plaintiff no.1. With regard to the cheque of Rs.4,30,000/­, one cheque duly signed by M/s Trade International got misplaced and immediately after coming to know about the same M/s Trade International had informed the bankers to stop the payment. There is no question of issuing a cheque of Rs.4,30,000/­ in favour of the defendant no.1 by the plaintiff no.1. The said cheque was produced by the accused/defendant in the criminal case in their defence and the cheque has been written by one of the defendant in their own handwriting and bank has made the endorsement "Payment stopped''.

5. Admission / denial of documents was conducted. The admitted documents of the plaintiff are marked as Ex. P­1 to Ex. P­8. None of the documents of the defendants was admitted by the plaintiff. Since admitted documents need not to be proved, they are detailed as follows :

1. Letter dated 21.05.1982 issued by DDA in favour of Sh.

Gurdavinder Singh Ex. P1 CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 14 of 59

2. Agreement entered between Sh. Manmohan Rai Khanna and Sh. Manmohan Rai Khanna dated 09.09.1983 notarised on 23.09.1983 Ex. P2

3. Statement given by Sh. T.D. Verma, partner of appellant and Sh. M.M Rai Khanna, attorney of respondent before Addl. Senior Sub Judge, Delhi on 22.10.1983 Ex. P3

4. Agreement dated 25.01.1982 entered between Sh. Gurdavinder Singh Brar through his brother Sh. Rupinder Singh Brar with Sh. M.M. Rai Khanna Ex. P4

5. Receipt for sum of Rs.1,35,000/­ Ex. P5

6. Document registered before Sub Registrar on 20.02.1982 Ex. P6

7. Counterfoil issued by General Manager Telephones, New Delhi in favour of Rajiv Pharmaceuticals Ex. P7

8. Registration acknowledgement by Delhi Telephones bearing no. 430863 sent to defendant Rajiv Pharmaceuticals Ex. P8

6. On the basis of the pleadings, following issues were settled vide order dated 07.01.1997 by Hon'ble High Court wherein the suit was originally instituted :

1. Whether the suit is barred by Section 50 of Delhi Rent Control Act?

2. Whether the suit is bad for non­joinder of Mrs. Shashi Lata Khanna?

3. Whether the suit is barred by Section 11 of the Code of Civil CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 15 of 59 Procedure?

4. Whether the suit is barred by limitation?

5. Whether the suit is liable to dismissed for non­payment of proper court fee?

6. Whether the plaint is signed, verified and suit instituted by a duly authorized and competent person?

7. Whether the suit is maintainable against defendant no.3 who claims to be a tenant in the suit premises?

8. Whether the defendant no.1 was a tenant in respect of the suit property or had trespassed into the suit property?

9. Whether there was any agreement to sell the suit property by the plaintiff no.2 in favour of Smt. Shashi Lata Khanna on 09.05.1981 and whether in pursuance thereof any amount towards sale consideration was paid to plaintiff no.2?

10.Whether there was any agreement that Shri M.M. Rai Khanna and Smt. Shashi Lata Khanna would execute all the papers for transfer of property to defendants No.2 & 4?

11.Whether M/s Rajiv Pharmaceuticals was inducted as tenant in the suit property on 2.6.1983? If so its effect on the suit.

12.Whether the defendants are in lawful possession of the suit property?

13.Relief.

7. During the course of trial plaintiff no. was substituted with CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 16 of 59 Smt. Shashi Lata Khanna vide order of Hon'ble High Court dated 16.05.2003. Thereafter, after demise of Smt. Shashi Lata Khanna, Sh. M.M. Rai Khanna stepped into the shoes of plaintiff no.2 vide order dated 03.12.2019.

8. To prove his case plaintiff Sh. M.M. Rai Khanna stepped in witness box as PW1 and examined Ms. Shashi Lata Khanna as PW2, Mr. Shashi Sehgal as PW3 and Mr. Sanjay Khanna as PW4.

9. PW1 Sh. M.M. Rai Khanna tendered his evidence by way of affidavit Ex.PW1/A. He also tendered following documents :

i. photocopy of building contract dated 12.02.1982 as Ex. PW1/1 ii. photocopy of general power of attorney dated 12.02.1982 as Ex. PW1/2 iii. photocopy of sanctioned building plan from DDA as Ex.PW1/3 iv. photocopy of letter dated 21.05.1982 as Ex. PW1/4 v. receipt dated 19.02.1982 as Ex. PW1/5 vi. receipt dated 19.02.1982 as Ex. PW1/6 vii. photocopy of Agreement dated 25.01.1982 as Ex.

PW1/7 (already admitted as Ex. P4) viii. photocopy of receipt / cash voucher dated 25.01.1982 as EW. PW1/8 ix. photocopy of police complaint dated 25.06.1983 as Ex. PW1/9 x. photocopy of police complaint dated 25.06.1983 as Ex. PW1/10 xi. Photocopy of police complaint dated 30.06.1983 as Ex. PW1/11 xii. Photocopy of reminder letter dated 28.07.1983 as CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 17 of 59 Ex. PW1/12 xiii. photocopy of public notice published in Indian Express Newspaper dated 09.07.1983 as Ex.

PW1/13

xiv. photocopy of Certificate of Insertion dated 09.07.1983 as Ex. PW1/14 xv. photocopy of notice and reply dated 18.08.1984 as Ex. PW1/15 xvi. photocopy of Court order dated 10.12.1988 as Ex.

PW1/16

xvii. photocopy of statement of account of M/s Asian Pharmaceuticals as Ex. PW1/17 xviii. photocopy of order dated 22.10.1983 as Ex. PW1/18 xix. photocopy of order dated 30.07.1983 as Ex. PW1/19 xx. photocopy of letter / notice dated 27.09.1983 as Ex.

PW1/20

xxi. photocopy of letter / notice dated 27.09.1983 as Ex.

PW1/21

xxii. photocopy of registration receipt as Ex. PW1/22 xxiii. photocopy of registration receipt as Ex. PW1/23 xxiv. photocopy of certificate of posting dated 27.09.1983 as Ex. PW1/24 xxv. photocopy of certificate of posting dated 27.09.1983 as Ex. PW1/25 xxvi. photocopy of public notice appeared in Indian Express newspaper dated 29.10.1984 as Ex. PW1/26 xxvii. photocopy of certificate of insertion dated 29.10.1984 as Ex. PW1/27 xxviii photocopy of Form C dated 08.11.1982 marked as Mark A xxix photocopy of reminder letter dated 12.08.1983 marked as Mark B xxx photocopy of Power of Attorney dated 23.09.1983 marked as Mark C (Ex. P2) xxxi photocopy of Cancellation Deed dated 27.09.1983 marked as Mark D CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 18 of 59

10. PW2 Smt. Shashi Lata Khanna tendered her evidence by way of affidavit Ex.PW2/A. She also tendered the documents viz. Photocopy of agreement to sell as Ex. PW2/1 ; photocopy of registered FIR no. 362/1983 dated 25.06.1983 as Ex. PW2/2 ; photocopy of amended police complaint dated 27.06.1983 as Ex. PW2/3 ; photocopy of Conveyance Deed dated 26.06.1996 as Ex. PW2/4 and photocopy of Perpetual Lease dated 31.03.1976 marked as Mark E. She in her affidavit stated that vide Agreement to Sell dated 19.02.1982 she agreed to purchase all the piece and parcel of land bearing no. B­6/104, Safdarjung Enclave, New Delhi admeasuring approximately 405 sq. yards from Sh. Gurdavinder Singh Brar for consideration of Rs. 15,00,000/­. Sh. Gurdavinder Singh Brar was a lessee in respect of the said plot under Perpetual Lease Deed dated 31.03.1976 from the President of India acting through the Delhi Development Authority.

10.1 She further deposed that Sh. Gurdavinder Singh Brar had executed a Building Contract dated 12.02.1982 in favour of plaintiff no. 1 which was supposed to construct a building upon the said plot. Sh. Gurdavinder Singh Brar applied to DDA for conversion of the said plot from leasehold into freehold acting through Mr. M.M. Rai Khanna who was the General Attorney of Sh. Gurdavinder Singh Brar appointed by GPA dated 12.02.1982. In accordance with the Building Contract and GPA Mr. M.M. Rai Khanna constructed upon the said plot a building CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 19 of 59 comprising a basement floor, ground floor, first floor and second floor as per the building plan sanctioned by DDA.

10.2 She further deposed that she was running a business of dealing in paints and chemicals and other materials under the name and style of M/s Rainbow Paints as sole proprietor and her husband used to help and guide her in relation to the business transaction conducted by her. In order to facilitate her business transactions she had given several blank signed letterheads and other papers which used to lie in the office of plaintiff no.1 .

10.3 She further deposed that she never signed or executed any Rent Deed or Lease Deed in favour of any of the defendants granting any lease or right, authority or interest in the said property or any portion thereof. The Rent Agreement dated 02.06.1983 filed by defendant no. 1 is forged and fabricated document which appears to have been stolen from the office of plaintiff no.1 which he used to visit frequently.

10.4 She further deposed that on 24.06.1983 her husband had left for Bombay and at about 10 p.m. a phonecall was received that defendant no.1 and 2 alongwith certain other persons had illegally entered and trespassed into various portions of the said property and upon enquiry her husband told that he had not given any right to CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 20 of 59 anybody to enter the said property. Thereafter she went to PS Vinay Nagar and lodged formal complaint dated 25.06.1983.

10.5 She further deposed that Sh. Gurdavinder Singh Brar applied to DDA for conversion of the said plot from leasehold into free hold acting through Sh. M.M. Rai Khanna who was his GPA holder. On 26.06.1996, DDA executed and registered conveyance deed dated 26.06.1996 in her favour thereby converting the plot and she became sole and exclusive freehold owner of the said plot. She also paid to M/s Trade International towards cost of construction of the building and became the sole and exclusive owner of the entire superstructure/ building standing upon the said property.

11. PW3 Sh. Shashi Sehgal tendered his evidence by way of affidavit Ex.PW3/A. He also tendered the document i.e. letter dated 10.04.1982 Ex. PW3/1. He deposed that he is Architect by profession and is partner in the firm M/s Sehgal Jatia & Associates. In 1982, Mr. M.M. Rai Khanna, Sole Proprietor of M/s Trade International approached him for designing, supervising and executing of construction work in the plot bearing no. B­6/104, Safdarjung Enclave, New Delhi.

11.1 He further deposed that after setting out the terms as enumerated in Ex. PW3/1 he made out the building plan and drawing of CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 21 of 59 the said property and acted on the instructions of Sh. M.M. Rai Khanna since he was the GPA holder from the perpetual lessee of the said plot. He further deposed that Sh. M.M. Rai Khanna had informed him that his wife Smt. Shashi Lata Khanna had entered into an agreement to sell dated 19.02.1982 in respect of the said plot with Sh. Gurdavinder Singh Brar whereby he had agreed to sell his rights, titles and interests in and the said plot to Smt. Shashi Lata Khanna. In June 1983 the building upon the said plot was not fully complete. The superstructure was almost complete and the finishing work was left to be done and during this time Sh. M.M. Khanna had occupied the basement floor of the building and started using as his office.

11.2 He further deposed that at late night on 24.06.1983 Smt. Shashi Lata Khanna alongwith her son Sh. Sanjay Khanna came to his house and informed about the incident of trespassing and he had accompanied Smt. Shashi Lata Khanna to the said property and thereafter to PS Vinay Nagar where Smt Shashi Lata Khanna gave complaint against the trespassers.

12. Mr. Sanjay Khanna stepped in witness box as PW4 and tendered his evidence by way of affidavit and relied upon following documents :

i. Demand note of Rs.8,000/­ issued by MTNL, New Delhi as Ex. PW4/1 CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 22 of 59 ii. Original letter dated 21.05.1984 issued Indian Posts and Telegraphs regarding Registry no. 11601215 dated 03.05.1984 as Ex. PW4/2 iii. Original acknowledgement receipt of MTNL for telephone connection as Ex. PW4/3 iv. Original receipt no. 011 dated 05.05.1984 as Ex.

PW4/4

v. Original receipt no. 614 dated 03.03.1982 from DDA to Sh. Gurdavinder Singh Brar as Ex. PW4/5 vi. Original notice sent by DDA dated 06.08.1981 as Ex. PW4/6 vii. Details of payment of Rs.8000/­ dated 03.03.1982 Ex.PW4/7 viii. Original Cash voucher dated 25.01.1982 for Rs.1,85,000/­ signed by Sh. Rupinder Singh Brar as Ex. PW4/8 ix. Assessment order of Ms. Simmi Khanna U/s 143(1) of the Income Tax Act, 1961 as Ex. PW4/9 x. UPC Cover as Ex. PW4/10 xi. Assessment order dated 31.03.1986 for assessment year 1985­1986 as Ex. PW4/11 xii. LIC policy of his father as Ex. PW4/12 xiii. LIC letter dated 31.03.1986 as Ex. PW4/13 xiv. Assessment order dated 29.03.1984 of the deponent for the period from 01.04.1981 to 31.03.1982 and assessment 1982­1983 as Ex. PW4/14 xv. Assessment order dated 30.03.1984 of the deponent for the period from 01.04.1982 to 31.03.1983 and assessment 1984­1985 as Ex. PW4/15 xvi. Statement of account of Trade International HUF of State Bank of Travancore as Ex. PW4/16 CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 23 of 59 xvii. Statement of account Union Bank of India as Ex.

                                PW4/17
              xviii.            Dishonour slip dated 02.07.1983 of Union Bank of
                                India as Ex. PW4/18
              xix.              Dishonour slip dated 05.07.1983 of Punjab
                                National Bank as Ex. PW4/19
              xx.               Dishonour cheque as Ex. PW4/20
              xxi.              Envelope of dishonour of cheque as Ex. PW4/21
              xxii.             Balance sheet for period assessment year 1984­
                                1985 as Ex. PW4/22 (4 pages colly)
              xxiii.            Complaint dated 22.11.1993 through postal receipt
                                as Ex. PW4/23 and Ex. PW4/24
              xxiv.             letter dated 16.06.1983 Ex. PW4/25 bears signature
                                of my mother is Ex. PW4/26 and Ex. PW4/27 bears
                                signature of my father
              xxv.              letter dated 24.02.1983 as Ex. PW4/28
              xxvi.             Import Licence dated 17.09.1987 of Rainbow
                                Paints as Ex. PW4/29
              xxvii.            Receipt Ex. PW4/30
              xxviii.           Envelope as Ex. PW4/31
              xxix.             Receipt dated 18.09.1987 as Ex. PW4/32
              xxx.              Envelope as Ex. PW4/33
              xxxi.             Licence as Ex. PW4/34
              xxxii.            Envelope as Ex. PW4/35
              xxxiii.           LIC policy as Ex. PW4/36
              xxxiv.            Assessment order dated 21.03.1983 as Ex. PW4/37
              xxxv.              Assessment order dated 21.03.1983 as Ex. PW4/38




CS No. 57411/16
Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors               Page No. 24 of 59
               xxxvi.            Statement of account of Trade International with

Asian Pharmaceuticals of Tulsi Das Verma as Ex.

PW4/39

xxxvii. Assessment year 1984­85 as Ex. PW4/40(4 pages colly)

13. All the witnesses were subjected to lengthy cross­ examination by ld counsel for defendants. Thereafter, plaintiff evidence was closed vide order dated 27.11.2017.

14. In defence, defendant no.1 Sh. Durgesh Pal examined himself as DW1 and tendered his evidence by way of affidavit Ex. DW1/1. He also tendered following documents :

i. Plaint titled as Rajiv Pharmaceuticals vs Shashi Lata Khanna suit for permanent injunction, already exhibited as Ex. DA.

ii. Written statement filed by Mrs. Shashi Lata Khanna being a defendant in suit No. 441/83 is already exhibited as Ex. DB.

iii. Original plan sanctioned letter dated 24.06.1981 already exhibited as Ex. PW­1/X­1.

iv. GPA dated 09.09.1983 already exhibited as Ex.

PW­1/DR. (Admitted as Ex P2) v. Certified copy of order dated 22.10.1983 is already exhibited as Ex. PW­1/18.

vi. I also rely upon judgment already exhibited as Ex. PW­1/DH.

CS No. 57411/16

Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 25 of 59 vii. Order dated 15.07.2000 already exhibited as Ex.

                               PW­1/DJ
               viii.           Demand note No. HK/430863/15698 dated

02.08.1982 for telephone connection by Asian Pharmaceuticals is Ex DW­1/A (objected to as original has not been filed and same may be marked) ix. Rent note already marked as Mark DX1.

               x.              The cheque which was remarked with payment
                               stopped by the drawer is already exhibited as
                               Ex. PW­1/DM.
               xi.             Certificate copy of payment dated 10.09.1989 is
                               Ex. DW­1/B. (objected to as original has not
                               been filed and same may be marked)
               xii.            Pay order dated 08.05.1981 is Ex. PW­1/DU

               xiii.           Pay order dated 29.06.1981 is Ex. PW­1/DW

               xiv.            Pay order dated 29.06.1981 is Ex. PW­1/DV

               xv.             FIR No. 362/83 PS Vinay Nagar is already Ex.
                               PW­2/2
               xvi.            Written statement and reply to the application
                               39 rule 1 & 2 CPC dated 28.05.1984 are already
                               exhibited as Ex. PW­1/DX­4 and Ex. PW­
                               1/DY­1.
               xvii.           Judgment dated 01.11.2004 passed in FIR No.
                               362/83 PS Vinay Nagar and judgment passed
                               by Hon'ble High Court of Delhi in Crl. Rev No.
                               47/2005 are already exhibited as Ex. PW­1/DK
                               and Ex. PW­1/DL


CS No. 57411/16
Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors              Page No. 26 of 59
                xviii.          Surety bond of Zameer Shah exhibited as Ex.
                               PW­4/DA
               xix.            FIR No. 24/07 already exhibited as Ex. PW­
                               2/DX­4
               xx.             Letters dated 23.02.2006 and 12.09.2006 are
                               already exhibited as Mark X3 and Mark X4.
               xxi.            Original lease deed dated 26.06.1996 already
                               Ex. PW­2/4
               xxii.           Recovery suit bearing no. 467/93 (old no
                               1224/89) State    Bank of Patiala vs Asiatic
                               Overseas Pvt Ltd & Ors Ex. PW­1/DE
               xxiii.          Written statement filed by M/s Asiatic Overseas
                               Pvt Ltd already Ex. PW­1/DD
               xxiv.           Judgment and decree dated 28.09.2001 and
                               24.05.2002 already exhibited as Ex. PW­1/DF
               xxv.            Execution application bering no. 315/06 already
                               exhibited as Ex. PW­1/DB
               xxvi.           Order dated 02.08.2006 exhibited as Ex. DW­

1/C (objected to as original has not been filed and same may be marked) xxvii. Copy of agreement to sale dated 17.08.1995 is marked as Mark D1 (objected to as the same is filed without application) xxviii. Copy of agreement to sale dated 02.01.1997 is marked as Mark D2 (objected to as the same is filed without application)

15. Sh. Bharat Singh Bisht, Assistant Director, LAB (Residential), Vikas Sadan, Delhi Development Autority was examined as DW2. He brought the summoned record i.e. complete file in respect CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 27 of 59 of property bearing no. B­6/104, Safdarjung Enclave, New Delhi. He deposed that he never dealt with this file however he submitted that there is one representation filed by Mr. Durgesh Pal and a request was made on 05.07.2018 to the FSL for verification and signature of Mr. Gurdavender Singh Barar. The request letter is marked / exhibited as LC­1 ; The request letter is marked / exhibited as LC­2 ; copy of report dated 02.08.2018 of Truth Lab alongwith enclosures are marked / exhibited as LC­3 (Colly); copy of representation of Mr. Durgesh Pal received in the DDA office on 25.06.2018 is marked / exhibited as LC­4 ; representation received by DDA dated 09.02.2019 on 12.02.2019 in the office of Vice­Chairman which was received in the Branch on 15.02.2019 is marked / exhibited as LC­5(Colly).

15.1 During cross­examination he admitted to the documents which were in the summons record i.e. file bearing no. F4(10) 72 LAB(R). Document dated 27.12.2016 for restoration of cancelled Conveyance deed dated as Ex. DW2/P1 ; letter dated 12.01.2017 written by DDA to Shashi Lata Khanna with regard to restoration of cancelled conveyance deed as Ex. DW2/P2 ; letter dated 08.05.2017 written by DDA to Sub­Registrar­V available on record as Ex. DW2/P3 ; letter dated 08.05.2017 written by DDA to SHO PS Okhla Mubarakpur, Delhi as Ex. DW2/04. He further submitted that as per their record the agreement to sell duly registered in Ghaziabad dated 20.02.1982 was sent to Truth LAB.

CS No. 57411/16

Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 28 of 59

16. Mr. Chandan Sood stepped in witness box and tendered his evidence by way of affidavit as Ex. DW3/A. He relied upon following documents :

i. Special Power of Attorney dated 27.05.2019 executed by Mr. M.C. Sood in favour of deponent as Ex. DW/3A ii. Rent note dated 02.06.1983 marked as DX­1 iii. Judgment and order dated 01.11.2004 passed by Sh. Digvinay Singh, the then M.M. Patiala House Courts, New Delhi in FIR no. 362/83 already exhibited as PW1/DK iv. General Power of Attorney executed by Mr. M.M. Rai Khanna in favour of defendant no. 2 and 4 already exhibited as Ex. PW1/DR v. Order dated 22.10.1983 passed by the Court of Sh. R.C. Chopra, the then Sub Judge, Delhi already exhibited as Ex. PW1/18 vi. Tenancy agreement dated 01.01.1986 as Ex. DW3/1 vii. Money receipt of Rs.13,600/­ dated 01.01.1986 as Ex.

DW3/2

viii. Receipt of advance rent of Rs.5,000/­ as Ex. DW3/3 ix. Electricity bill issued in the name of defendant no.3 - Sh. M.C. Sood with respect to the connection installed in the tenanted premises as Ex. DW3/4 x. Telephone bill in the name of defendant no.3 pertaining to telephone no. 678888 as Ex. DW3/5 xi. Ration Card issued by Delhi Administration to defendant no.3 at the address B­6/104, Safdarjung Enclave, New Delhi as Ex.

DW3/6

xii. Copy of FIR no. 250/87 dated 07.10.1987 registered with PS Vinay Nagar as Ex. PWD3/7 xiii. Copy of agreement to sell dated 17.08.1995 and 02.01.1997 as Ex. DW3/8 and Ex. DW3/9 The defence witnesses were cross­examined by ld counsel CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 29 of 59 for plaintiff and thereafter defendant evidence was closed. Final arguments advanced by ld counsel for parties heard. Record perused and considered.

17. I have gone through the entire records of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial.

18. This case has a chequered history. The suit property is mired in several litigations. Facts are complex, interwoven and narrated in evasive manner. However, in order to attain finality and to arrive at a just conclusion, segregation of facts relevant to decide the lis in question in quintessential. Unlike criminal case, preponderance of probabilities, balance of convenience would be determining factor to end this long drawn litigation. Keeping in mind the above principles, the facts and evidences are appreciated herein below :

This is a simple suit for possession with consequential relief governed by Section 5 of the Specific Relief Act. Since admitted facts/documents does not require formal proof, let us first look into the admitted position.

18.1 Allotment of suit property by DDA to Sh. G.S. Brar. It's further entrustment to Sh. M.M. Rai Khanna for construction purposes vide Ex. P2 Ex. PW1/DR (admitted vide order dated 12.04.1996).

CS No. 57411/16

Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 30 of 59 Whatever title / interest defendants claimed was derived either from Trade International, Sh. M.M. Rai Khanna or Smt. Shashi Lata Khanna. Keeping the above admitted position in mind, now the bone of contention is two folds ; plaintiff claims defendants trespassed into the property whereas defendants claimed possession through tenancy from Smt. Shashi Lata Khanna.

18.2 Secondly, plaintiffs claimed interest in the suit property on the basis of set of documents i.e. GPA Ex. PW1/2 executed in 1982 ; defendants claimed plaintiffs got interest through documents executed on 30.06.1981. Without much focussing on monetary transactions between the parties, business relations and previous litigations, issuewise findings are as follows :

Issue no. 4 Whether the suit is barred by limitation?

19. This issue has been framed as per the preliminary objection raised by the defendants in their written statement. In support of this issue it is contended on behalf of the defendants that the plaintiffs in cross examination in case FIR no. 362/1983 PS Vinay Nagar stated that the said FIR was registered on the complaint of his wife Shashi Lata Khanna that she had purchased the plot / land in question in February, 1982 and was dispossessed from the same on 25/25.6.1983 however he CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 31 of 59 kept silent for almost 7 year and filed the instant suit seeking recovery of possession in the year 1990 and hence the same is barred by limitation.

19.1 Though no arguments have been advance on this issue by either sides, however, this being a legal issue the Court itself delved upon the aspect of limitation. The instant suit is for possession and consequential relief filed on the basis of title of the plaintiffs which is covered by Section 5 of the Specific Relief Act. The limitation period for filing the suit for recovery of possession under Section 5 of the Specific Relief Act is 12 years. As far as mesne profits is concerned, the plaintiff has claimed the same only for preceding 3 years from the institution of the suit till realization which is well within limitation. Hence this issue is also decided against the defendants.

Issue no. 5 Whether the suit is liable to dismissed for non­payment of proper court fee?

20. Though no arguments have been advanced by the parties on this issue, this being legal issue the court has examined this issue and found that appropriate court fee as per Court Fee Act and suit valuation has been affixed in the instant case. As far as payment of Court fee on mesne profits is concerned, the same being unquantified can be paid CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 32 of 59 upon final decision. Hence, this issue is also decided against the defendants.

Issue no. 6 :

Whether the plaint is signed, verified and suit instituted by a duly authorised and competent person ?

21. The onus to prove a particular fact is upon the one who asserts it. Vde this issue defendants sought dismissal of the suit since Sh. G.S. Brar, the plaintiff no.2 neither signed nor verified the plaint. Only Karta of plaintiff no. 1 i.e. Sh. M.M. Rai Khanna signed the pleadings without disclosing his authority to file on behalf of G.S. Brar. Defendant no.4 also contended that even GPA dated 12.02.1982 on the basis of which the instant suit is claimed to be filed also authorises Sh. M.M. Rai Khanna whereas suit is filed by Trade International.

22.1 Per contra, plaintiffs claimed that plaintiff no. 1 filed the suit on his behalf as well as on behalf of plaintiff no.2 being his attorney vide Ex. PW1/2. Bare perusal of Ex. PW1/2 shows that vide this GPA possession was handed over to the Trade International and not to Sh. M.M. Rai Khanna as claimed by defendant no.4. Even the common / joint written statement filed on behalf of defendants no. 1, 2 and 4 is signed and verified by only one of them without disclosing any authorisation on behalf of the rest.

CS No. 57411/16

Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 33 of 59

23. Heard. Considered.

Order VI CPC deals with pleadings/verification of plaint which provides that if a suit is instituted by more than one person, it should be verified by at least one of them. In this case also, common / joint plaint, written statement and replication are filed but signed by one of them only. In view of the said provisions, plaint cannot be faulted upon. Even otherwise, this regularity stands rectified by substitution of plaintiff no.2 through Smt. Shashi Lata Khanna vide order dated 16.05.2003 passed by Hon'ble High Court. In view of the same this issue is decided against the defendants.

Issue no. 3 Whether the suit is barred by Section 11 of the code of Civil Procedure ?

24. In support of this issue, ld counsel for defendants submitted that since the plea of eviction and mesne profits were not raised by the plaintiff in the earlier set of litigations, thus the same cannot be raised herein as being barred by the principles of Res Judicata. It is further submitted that earlier suit was filed by defendant no.1 vide suit no. 441/1983 (Ex.DA) for relief of "permanent injunction against the defendant from dispossessing the plaintiff from the premises bearing no. B­6/104, Safdarjung Enclave, New Delhi" wherein the plaintiff has not raised the plea of eviction either by filing a counter claim or through any CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 34 of 59 other proceedings and rather compromised the said suit on 22.10.1983. Therefore, the present suit is not maintainable and barred on the principles of Res judicata. It is further submitted that even in another suit bearing no. 335/1984 filed by defendant no. 2 Durgesh Pal Sachdev wherein he has taken the plea of advancement of Rs.1,35,000/­, execution of rent note and subsequent execution of GPA dated 09.09.1983 notarized on 23.09.83 (PW1/DR) in favour of defendant Durgesh Pal and O.P. Sood, plaintiff neither appear nor took the defence and thus it was decreed ex­parte on 08.11.1985 (Ex. PW1/DH). The plaintiff should have raised the plea to negate the said receipt of consideration, existence of tenancy, cancellation of GPA, in the said suit and the said court was competent to decide these issues. Plaintiff had chosen not to rebut the plea of defendant no.2 in the said suit. Thus, the same cannot be raked up in the instant suit being barred by principles of res judicata. In support, the defendant relied upon catena of judgments as under :

24.1 In the case titled as Asgar & Ors Vs. Mohan Varma & Ors., being Civil Appeal No. 1500/2019, decided by Hon'ble Supreme Court.

The reliance is placed in following paragraphs :

Under Section 11, a matter which has been directly and substantially in issue in a former suit between the same parties or between parties litigating under the same title cannot be raised before a court subsequently, where the issue has been heard and finally decided by a competent court. Explanation CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 35 of 59 IV enacts a deeming fiction. As a result of the fiction, a matter which "might and ought" to have been made a ground of defence or attack in a former suit shall be deemed to have been a matter directly and substantially in issue in such a suit. In other words, Explanation IV is attracted when twin conditions are satisfied: the matter should be of a nature which might and ought to have been made a ground of defence or attack in a former suit.

In Kameshwar Pershad V. Rajkumari Ruttun Koer it was held as under :

".......in this case the matters were the same. It was only an alternative way of seeking to impose a liability upon Pun Bahadoor, and it appears to their Lordships that the matter "ought" to have been made a ground of attack in the former suit, and therefore that it should be "deemed to have been a matter directly and substantially in issue" in the former suit, and is res judicata."

In Henderson Vs. Henderson :

"......where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies...."

In Johnson Vs. Gore Wood & Co. :

"...that there should be finality in litigation and that a party should not be twice vexed in the same matter. The bringing of a claim or the raising of a defence in later proceedings may, CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 36 of 59 without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all...."

In State of U.P. Vs. Nawab Hussain :

"I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject­matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them."

This is therefore another and an equally necessary and efficacious aspect of the same principle, for it helps in raising the bar of res judicata by suitably construing the general principle of subduing a cantankerous litigant. That is why this other rule has some times been referred to as constructive res judicata which, in reality, is an aspect or amplification of the general principle.

In Forward Construction Co. Vs. Prabhat Mandal (Regd.) Andheri :

"20...an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence..."

24.2 In Baldev Das Karsondar Patel Vs. Mohan Lal Bapalal Bahiya, 40 BOMLR 902 (1947) :

It is perfectly clear and by now well established that an ex parte decree can operate as res judicata because an ex parte decree is a decree on merits. The Court passing the decree hears the case on merits, finally decides it, and passes the decree. The only difference between an ex parte decree and a decree in invitum CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 37 of 59 is that when an ex parte decree is passed, the defendant is absent; but an ex parte decree is as much on merits as a decision in invitum.

In ordinary cases the absence of the defendant is voluntary. In cases of a summary suit where the condition on which leave to defend is given is not complied with, his absence is a result of the coercive process of the law; but both in the first case and in the second case the decree passed by the Court is an ex parte decree and, as we have pointed out, an ex parte decree is a decree on merits passed by the Court after it has heard and decided the matter.

24.3 In Forward Construction Co. & Ors Vs. Prabhat Mandal (Regd.) Andheri & Ors. 1986 AIR 391, 1985 SCR Supl. (3) 766 :

An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence.

24.4 Saroja Vs. Chinnusamy (dead) by LRs, Civil Appeal No. 3907/2007 decided by Hon'ble Supreme Court of India :

".....A decree which is passed ex parte is as good and effective as a decree passed after contest. Before the ex parte decree is passed, the court has to hold that the averments in the plaint and the claim in the suit have been proved. It is, therefore, difficult to endorse the observation made by the Principal District Munsif that such a decree cannot be considered to be a decree passed on merits. It is undoubtedly a decree which is passed without contest; but it is only after the merits of the claim of the plaintiff have been proved to the satisfaction of the trial court, that an occasion to pass an ex parte decree can arise."

CS No. 57411/16

Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 38 of 59 "......a decree which is passed ex­parte is as good and effective as a decree passed after contest..... A similar view has also been expressed by a Division Bench of the Allahabad High Court in the case of Bramhanand Rai Vs. Dy. Director of Consolidation, Ghazipur [AIR 1987 All 100]....."

24.5 Per contra, ld counsel for plaintiff submitted that the plea of res judicata has been wrongly raised in the instant case as the relief claimed in the instant suit was never the subject matter of any of the earlier suit as claimed by the defendant. He further submitted that as far as suit no. 441/1983 (Ex.DA) is concerned, no issues were finally decided in the said suit as the said suit was disposed of as compromised and therefore the principle of res judicata is not applicable as there was no final decision on any issue.

24.6 He further submits as far as ex­parte decree in suit no. 335/1984 is concerned, it was a simplicitor suit for injunction, wherein only relief granted to defendant was protection from dispossession without following due process of law. Thus, it cannot bar the plaintiff from seeking possession and mesne profits, as the same is an independent right.

25. Heard. Considered.

Admittedly, the suit no. 441/1983 was disposed of as compromised, thus it does not have any bearing on the merits of this case as issues were not finally heard and decided therein. Even CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 39 of 59 otherwise the said suit was filed by defendant no.1 against Smt. S.L. Khanna who was not a party to the instant suit at the time of institution and later on stepped into the shoes of plaintiff no.2 only, being successor in interest. As far as suit no.335/1984 is concerned, it also cannot operate as res judicata as the issues in the instant case were neither in consideration nor finally decided by the said court. Rather, the said ex­parte decree is the germane to file the present suit. Accordingly, the instant suit is not barred by the principle of res judicata.

Issue no. 2 Whether the suit is bad for non­joinder of Mrs. Shashi Lata Khanna?

26. This issue has been framed on the basis of preliminary objection taken by defendants no. 1, 2 and 4 claiming that since they are tenant in respect of premises in question being inducted by Ms. Shashi Lata Khanna vide rent note dated 02.06.1983 (Mark DX1), she become a necessary party to the suit. However, as she was not joined as party, the suit is bad for her non­joinder.

26.1 It is further submitted on behalf of defendants that agreement to sell dated 9.5.81 and the registered documents i.e. GPA, Will and Receipt dated 30.06.1981were also existing in favour of Smt. Shashi Lata Khanna warranting her to be necessary party in the present suit. It is further pleaded on behalf of defendants that later on Mrs. CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 40 of 59 Shashi Lata Khanna got the conveyance deed in her favour in 1996 but did not choose to join the present suit for almost 09 years and only became party to the suit vide order dated 15.07.2003. Even at that stage there was no pleadings /affidavit bearing her signature. Therefore, this suit is liable to be dismissed for her non­joinder as necessary party.

26.2 Per contra, ld counsel for plaintiffs submits that at the time of the institution of the suit, Shashi Lata Khanna had no title or interest in the suit property. Except the agreement to sell executed in her favour by erstwhile plaintiff no. 2 namely Sh. G.S. Brar vide Ex. PW2/1 dated 19.02.1982 which does not confer any right in favour of the intending purchaser. Thus, she was neither necessary nor proper party at the time of institution of the suit. Further, when she became owner of the property in question after getting conveyance deed in her favour from DDA, she was impleaded as plaintiff no.2 in place of erstwhile owner.

27. Heard. Considered.

On perusal of the record, it is observed that in Agreement dated 25.01.1982 admitted as Ex. P4 (Ex. PW1/7) it was specifically recorded that the set of documents of the year 1981 were executed by an impostor Daleep Puri and therefore had no relevance and stood cancelled / revoked. Further in Ex. P2 it was recorded that possession of the suit premises was handed to Sh. M.M. Rai Khanna by Sh. G.S. Brar CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 41 of 59 27.1 In view of the categorical admission of this document by the defendants and their further reliance during the course of the trial, the defendant cannot take a contradictory plea that Smt Shashi Lata Khanna was a necessary party by virtue of the cancelled documents which have been mentioned in the said admitted documents Ex. P4. Further, even if it is presumed that these documents of 1981 were in existence, the same has not been duly proved by either side as neither their executor nor any of the witness has been examined.

27.2 In the absence of proof of all these documents by its executor namely G.S. Brar or any of the witnesses, these documents cannot be called as proved hence, cannot be relied upon by them. Ld counsel for defendants vehemently argued that the execution of these documents have been admitted by the plaintiffs in several litigations. However, on perusal of the record of these litigations it is observed that the plaintiff though admitted the execution of these documents but took the plea that a fraud was played with plaintiffs by one Daleep Puri who represented himself as G.S. Brar and executed these documents.

27.3 Rather the plaintiff has gone to the extent of saying that the said deal was got arranged by the defendant namely Durgesh Pal and T.D. Verma with the said impostor and after realizing that a fraud has been played upon the plaintiff, the plaintiff got cancelled / revoked these CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 42 of 59 documents of the year 1981 vide agreement Ex.PW1/7 (Ex. P4) which is duly admitted by the defendants herein.

28. Heard. Considered.

Though, the said documents were executed and got registered in 1981 before Sub Registrar, Ghaziabad but plaintiffs submits that these documents were executed by playing fraud as one Dileep Puri represented himself as G.S. Brar and got these documents executed. The plaintiff got the same cancelled vide agreement Ex. P4 executed by G.S Brar through his brother Rupender Singh Brar and plaintiff herein. The agreement dated 25.01.1982 Ex. P4 (EX. PW1/7) is witnessed by the defendant namely Tulsi Dass Verma and admitted during the course of trial by the defendant no.1, 2 and 4. Thus, those documents stands cancelled and this fact was very well within the knowledge of the defendants since beginning. Even otherwise, it was defendants duty to prove these documents either by examining the executor of these documents namely G.S. Brar or any of the attesting witnesses including T.D. Verma the defendant no.1 herein. But for reasons best known to the defendants, neither T.D. Verma the proprietor / partner of defendant no.1 stepped into the witness box to prove the documents of 1981 nor denied the documents of 1982 though he was an attesting witness to all these documents. Hence, the same cannot be relied upon by the defendants herein. Accordingly, it is held Smt Shashi Lata Khanna was neither necessary nor proper party at the time of CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 43 of 59 institution of the suit as she was having no right / title or interest in the suit premises. Therefore, her non­joinder does not affect the merits of the case. Accordingly, this issue is decided against the defendants.

Issue no. 9 :

Whether there was any agreement to sell the suit property by the plaintiff no. 2 in favour of Smt. Shashi Lata Khanna on 9.5.1981 and whether in pursuance thereof any amount towards sale consideration was paid to plaintiff no.2?

29. The alleged agreement to sell dated 09.05.1981 was executed between Sh. G.S. Brar and Sh. M.M. Rai Khanna and not Smt. Shashi Lata Khanna as has been wrongly typed while framing the issues. In support of this issue, it is contended on behalf of the defendants that there was an agreement to sell dated 09.05.1981 executed between plaintiff no. 2 G.S. Brar and Shashi Lata Khanna against which the sale consideration was also received by plaintiff no.2. The plaintiffs themselves admitted the execution of agreement to sell dated 09.05.1981, payment of sale consideration against said agreement at various places including the replication herein wherein the plaintiff though admitted the execution of agreement to sell dated 09.05.1981, but took the false plea that :

"...a fraud had taken place with Shri M.M. Rai Khanna when Daleep Puri alias Deep Puri, cousin of Shri G.S. CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 44 of 59 Brar had forged the signature of G.S. Brar and executed all these documents. When the fraud came to the light, Shri G.S. Brar issued/executed fresh documents in regard to the property and took back all the documents mentioned in paras under reply. The fresh documents are in possession of Shri M.M. Rai Khanna. These documents mentioned in Sub-paras have no relevance with the present case. All the new documents executed by Mr. Brar for the sale of property in question has been witnessed by Shri T.D. Verma as attesting witness."

29.1 It is further contended that this false plea has been taken by the plaintiff in order to defeat the claim of the defendant over the suit property by virtue of rent note dated 02.06.1983, and oral agreement to sell the suit property in question to the defendants against the huge loan amount owed by the plaintiff towards the defendants. It is further contended that subsequent execution of registered documents by Sh. G.S. Brar in favour of Shashi Lata Khanna dated 30.06.1981 fortifies the factum of execution of agreement to sell dated 09.05.1981. It is also submitted that this agreement to sell was not only executed but also acted upon by the parties by executing and registered documents dated 30.06.1981 and payment of sale consideration. It was duly admitted by Ms. Shashi Lata Khanna in her evidence dated 25.07.1989 in criminal case vide Ex.PW2/DA wherein it is recorded that :

"It is correct that I had purchased this property from CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 45 of 59 Mr. Brar in the year 1981. It is correct that Mr. Brar had executed general power of attorney in my favour vide Ex.PW3/DX. I have seen the said document."

29.2 It is further contended that execution and payment of sale consideration against the said agreement is duly admitted by the plaintiffs during various occasions in several litigations. Thus it is duly proved that this agreement to sell dated 09.05.1981 was executed and amount towards sale consideration was received by G.S. Brar against the said agreement.

30. Per contra, ld counsel for plaintiff submits that though the agreement to sell dated 09.05.1981 was executed and other documents were registered on 30.06.1981 however, upon knowing the fact that fraud has been played by one Daleep Puri @ Deep Puri introduced to them by defendants herein the plaintiffs got revoked / cancelled the earlier set of documents by subsequent agreement Ex. P4 executed between Sh. G.S. Brar through his brother and plaintiff no. 1 herein which was duly witnessed by the defendant no.1 T.D. Verma and admitted on behalf of defendants 1, 2 as well as 4 vide order dated 01.05.1996. Thus, the defendants cannot place reliance on those documents for any purposes as they themselves admitted it to be executed by an impostor and stood cancelled.

31. Heard considered.

CS No. 57411/16

Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 46 of 59 The agreement to sell executed between Sh. G.S. Brar and Sh. M.M. Rai Khanna has not been proved on record since neither its original nor any witnesses of the same has been examined in this regard by the defendants. Further the plaintiffs has taken the plea that the said agreement was executed by playing fraud upon the plaintiffs which was duly revoked / cancelled when it came to the knowledge of the plaintiffs herein and this fact is duly admitted by the defendants before Court vide admission / denial of documents dated 12.04.1996. The Agreement dated 25.01.1982 admitted as document Ex. P4 reads as under :

This Agreement entered into at New Delhi the 25 th January, 1982 between Sh. Gurdavinder Singh Brar s/o Sh. Mohinder Singh Brar R/o Village & P.O. Kuttianwali, Dist. Faridkot (Punjab) through his real brother Sh. Rupinder Singh Brar S/o Sh. Mohinder Singh Brar R/o Village & P.O. Kuttianwali, Dist. Faridkot (Punjab) who is also General Attorney vide Regd. G.P.A. document registered at No.45 Book No.4 Volume No.1 Pages 107 dated 22.12.81 or the first part (which expression shall include his hairs, successors, assignee etc.) hereinafter referred to as the First Party and Sh. M.M. Rai Khanna, S/o Sh. D.D. Khanna R/o DE/69 Tagore Garden, New Delhi ­ 110 027 (which expression shall include his heirs, successora, assignee etc.) hereinafter referred to as the Second Party witnesses as under :­ The First Party is the real owner of Plot No.B­6/104, Safdarjang Enclave (Residence Area) New Delhi which he had purchased at an auction from the Delhi Development Authority, New Delhi in 1972 and which was registered in his name vide lease Dead dated 2nd CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 47 of 59 day of April 1976 and registered at No.991 Book No.1 Volume No.3655 Pages no.29 to 34 with the Sub­ Registrar, Asaf Ali Road, New Delhi;

The First Party during his recent visit to New Delhi happened to visit the aforesaid plot and saw to his astonishment that a boundary wall has been constructed at the aforesaid plot. He also found a Chowkidar at the site. As the boundary wall was not constructed by him, he enquired of the chowkidar as who constructed the boundary wall and employed the chowkidar. On this enquiry the First Party came to know that the Second Party has done so. Therefore the First Party contacted the Second Party at the address given by the chowkidar and represented to the Second Party that he was the owner of the plot and as to why the boundary wall was constructed without their consent or permission. The second party thereupon informed the first party that the aforesaid plot has already been agreed to be purchased by them from one Sh. Gurdavinder Singh Brar s/o Sh.

Mohinder Singh Bar R/o village & P.O. Kuttianwali, Dist. Faridkot (Punjab). The agreement to sell was executed on 9th May 1981 and that in addition the following documents were registered :­

1. The receipt for the payment.

2. General Power of Attorney

3. Will

4. Other relevant documents.

THE Second Party showed the aforesaid original documents to the First Party. The First Party was shocked and surprised to learn the same. The First Party informed the Second Party that Sh. Gurdaviner Singh Brar or his brother Sh. Rupinder Singh Brar have not sold the aforesaid plot and that the person CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 48 of 59 who has executed and registered the aforesaid documents is not Sh. Gurdavinder Singh Brar.

Accordingly both the parties made enquiries from various sources. The Second Party also contacted the brokers through whom the deal was matured. The enquiries of both the parties revealed that Sh. Daleep Puri alias Deep Puri S/o Sh. R.K. Puri R/o Ahttapurian, Chouk Hukam Chand, The Mall, Faridkot has forged and signed all the documents as "Gurdavinder Singh Brar" and has executed the documents and got registered the came fraudulently and without any authority from the ­ real owner. Prima face both the parties to this agreement i.e. Sh. Gurdavinder Singh Brar and Sh. M. M.Rai Khanna have become victim to the fraud played by Sh.

Daleep Puri alias Deep Puri S/o Sh. R.K. Puri R/o Ahttapurian, Chouk Hukam Chand, The Mall, Faridkot.

Keeping in view the facts as they exist today i.e. the fraud played by Sh. Daleep Pury alias Deep Puri both on Sh. Gurdavinder Singh Brar and on Sh.M.M. Rai Khanna and the physical possession of the plot being with Sh.M.M. Rai Khanna and the payment of a sum of Rs.4,15,000/­ (Rupees Four lacs fifteen thousand only) by Sh. M.M. Rai Khanna to Sh. Daleep Puri in the belief and under impression that he is the real owner of the plot and is Gurdavinder Singh Brar, both the parties hereby mutually and voluntarily agree as follows :­

1. That the First Party hereby agrees to sell and the Second Party hereby agrees to buy the aforesaid plot for Rs. 4 lacs (Rupees Four lacs only). Out of this sum of Rs.4 lacs (Rupees Four lacs only) the second party is deemed to have paid Rs.1,85,000/­ (Rupees one lac eighty five thousand only) and the First Party is CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 49 of 59 deemed to have received this amount. This sum of . 1,85,000/­ (Rupees one lac eighty five thousand only) is the earnest money for the purchase of this plot.

2. The remaining amount of Rs.2,15,000/­ (Rupees two lacs fifteen thousand only) will be paid by the Second Party to the First Party at the time of execution and registration of power of attorney in favour of the Second Party or his nominee, a will, and other relevant documents.

3. The possession of the plot is already with the Second Party. The First Party also now confirms that it has given the Symbolic possession of the aforesaid plot to the Second Party.

4. The First Party will execute and get registered the relevant documents and Second Party will make the balance payment of Rs.2,15,000/­ (Rupees two lacs fifteen thousand only) at the time of registration and execution of above documents.

5. In case the First Party fails to execute the documents referred to in clause 4 above he shall be liable to pay liquidated damages equivalent to the amount of Rs.1,85,000/­ (Rupees one lac eighty five thousand only) which he has already received and shall refund to the Second Party the double amount, that is, Rs.3,70,000/ ­ (Rupees three lacs seventy thousand only) or otherwise to get this agreement enforced and specifically performed through a court of law.

6. In case the Second Party fails to make the balance payment of Rs.2,15,000/­ (Rupees two lacs fifteen thousand only) the First Party shall be entitled to forfeit the sum of Rs.1,85,000/ ­ (Rupees one lac eighty five thousand only) deemed to have been paid by the Second Party to the First Party.

7. The First Party hereby assures the Second Party and guarantees that the aforesaid plot is free from all CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 50 of 59 encumbrances, litigation or any other kind of complication except the one already referred to in this agreement. The First Party undertakes to fully indemnify the Second Party in case any complication comes to light hereafter.

8. Both the parties will jointly and severally make efforts to recover the amount paid by the Second Party to Sh. Daleep Puri alias Deep Puri....

31.1 In view of the above, it is held that agreement to sell dated 09.05.1981 and subsequent documents dated 30.06.1981 executed pursuant thereto has been executed by playing fraud and stood cancelled. This fact has been duly recorded in Agreement Ex. P4 which is admitted by the defendants herein and thus cannot take contradictory view. Accordingly, This issue is decided against the defendants.

Issue no. 10 Whether there was any agreement that Shri M.M. Rai Khanna and Smt Shashi Lata Khanna would execute all the papers for transfer of property to defendants no. 2 & 4?

32. It is contended on behalf of the defendants that M.M. Rai Khanna and Shashi Lata Khanna agreed to execute the papers for transfer of the property to defendant no 2 and 4 since they were in admitted possession of the suit property. Even the Power of Attorney duly notorized on 23.9.83 was executed by plaintiff no.1 in favour of CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 51 of 59 defendant no.2 and 4 vide which the defendants no. 2 and 4 were authorized to take possession of the premises in question as per covenant 1 of the said GPA.

32.1 It is further contended that had the relations between the plaintiff and defendants were hostile, and the defendants have tresspassed in the property no prudent man would have executed GPA authorizing defendants to enjoy the possession and management of the suit premises. Thus execution of the said GPA itself shows that there was agreement between plaintiff and defendants for transfer of suit premises. Hence the suit pending between the parties was compromised vide Ex. PW1/D3. It is further submitted that in case the plaintiff had cancelled the said GPA on 27.09.1983, there was no occasion of the plaintiff to compromise the suit pending between the parties on 22.10.1983 stating that all the disputes between the parties have settled. It is further submitted that since the plaintiff was having debts of defendants no. 2 and 4 in consideration of the same plaintiff had executed the GPA and agreed to either clear the dues or to transfer the property as evident from issuance of cheque of Rs. 4,30,000/­ Ex. DW1/DA and parting with ownership of the possession of his Toyota Car in favour of the defendant.

32.2 It is further submitted Shashi Lata Khanna and M.M. Rai Khanna agreed to transfer the property in favour of defendant no.2 and 4 CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 52 of 59 and executed the GPA Ex. PW1/DR and did not contest the suit no. 441/83 and suit no. 335/84. However, later on the plaintiff became dishonest.

32.3 It is further contended that pursuant to the said agreement the plaintiffs parted with the possession as a part performance of transfer of the suit property. Later on with dishonest intention the plaintiff filed the instant suit after gap of 6 ½ years. Accordingly this issue should be decided in favour of the defendants.

33. Per contra, ld counsel for plaintiff submitted that the GPA Ex. PW1/DR was executed in favour of the defendants no. 2 and 4 at the instance of Mr. K.L. Sood a mutual friend of plaintiff and defendant no.4 on the understanding that the defendant no.1 shall vacate / handover the possession of the suit property to plaintiffs and the plaintiffs would not press for the cost and suit no. 362/1983 would be withdrawn.

33.2. However, when the plaintiffs came to know that the defendants have no intention to abide by the said agreement, he immediately cancelled / revoked the said GPA vide cancellation deed dated 27.09.1983 which was duly communicated to the defendants and published in newspaper vide publication Ex. PW1/26.

CS No. 57411/16

Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 53 of 59

34. Heard. Considered.

Since this issue has been framed on the assertion of the defendants the onus lies upon them to prove the same. As far as factum of execution of GPA dated 23.09.83 (Ex.PW1/DR) is concerned, though it records that defendant no. 2 and 4 are entitled to take possession however the moment it was revoked / cancelled it looses its effect. Further the said GPA does not find any mentioning of any agreement between the parties about the transfer of property documents to defendant no. 2 and 4. Further, even the compromise order in suit no. 362/1983 vide Ex. PW1/D5 does not record about transfer of the property documents in favour of the defendants. It only records that all the disputes between the parties have been settled. Defendant claims that they were never served with the notice of cancellation of the GPA. However, the plaintiff has duly proved on record the dispatch of the said notice at the admitted address of the defendants, and its publication in newspaper.

35.1 Even other wise, the plaintiffs intention to recover possession of the premises can be gathered from the date of filing of criminal complaint as well as the instant suit seeking recovery of possession which in itself is a notice to take back the possession. As far as plea of part performance is concerned, Section 53A of Transfer of Property Act categorically provides that there should be written contract and possession should be parted in pursuant to the said contract only CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 54 of 59 then the plea of part performance can be raised. However, in the instant case neither there is any written contract nor the possession was parted with pursuant to the said contract. Rather, DW1 himself stated in his cross­examination that as part of the settlement M.M. Rai Khanna and Shashi Lata Khanna approached defendant 2 and 4 for settlement and an oral settlement was undertaken and the GPA dated 09.09.1983 was executed wherein the plaintiffs undertook to clear all the outstanding dues on him and his firm to defendants which was running in more than 20 lakhs, failing which plaintiff will give up their rights in the suit premises jointly in favour of defendant no. 2 and 4. Meaning thereby even as per the testimony of DW1, there was no agreement to sell the property in question. Rather it was an alternative, in case of non fulfillment of conditions of compromise allegedly entered into between the parties. Thus, the principles of part performance enshrined under Section 53A of Transfer of Property Act cannot be invoked as there was no such agreement. Accordingly, this issue is also decided against defendant.

Issue no. 8 Whether the defendant no.1 was a tenant in respect of the suit property or had trespassed into the suit property ? Issue no. 11 Whether M/s Rajiv Pharmaceuticals was inducted as tenant in the suit property on 02.05.1983? if so its effect on the suit?

CS No. 57411/16

Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 55 of 59

36. The defendants claimed tenancy in respect of suit property on the basis of rent agreement Mark. DX1 allegedly executed by Smt. S.L. Khanna against advance rent of Rs.1,35,000/­. However, the said rent agreement was never proved on record as neither its original was proved nor any of the attesting witness was examined. Even the defendants got acquitted in the criminal case pertaining to the forgery of rent agreement due to its non­production. Further, since Smt. S.L. Khanna was having no right, title or interest in the suit property, at the time of execution of Mark DX1, she was not competent to induct defendant no. 1 as tenant. Heavy reliance was placed upon the acquittal order of the criminal court to shake the credibility of plaintiffs. However, law is no more res integra that finding of criminal court is not binding on civil court. Further, unlike criminal case, civil disputes are decided on the basis of preponderance of probabilities and not beyond reasonable doubt. Acquittal, based on benefit of doubt, does not falsify the other's claim. Even otherwise admitted documents records that possession of suit premises was with Sh. M.M. Rai Khanna then how Smt. S.L. Khanna could have handover the possession to defendant no.1. Hence, defendants failed to prove this issue.

Issue no. 7 :

Whether the suit is maintainable against defendant no. 3 who claims to be a tenant in the suit premises?

CS No. 57411/16

Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 56 of 59

37. Though the written statement of defendant no.3 is not on record, however, this issue can be decided on the basis of pleadings led by the remaining parties and the evidence placed on record.

37.1 Ld counsel for plaintiff argued that defendant no. 3 has no independent right in respect of the suit property as he claim to be inducted as tenant in the premises in question by defendant no.2 and 4. Thus, his claim to be a tenant is not maintainable qua the plaintiff herein. Since, the defendant no.2 and 4 are held to be trespassers in the suit premises, defendant no. 3 cannot claim any possessory right over the suit premises in question. This issue is decided against defendant no.3.

Issue no.1 Whether the suit is barred by Section 50 of Delhi Rent Control Act?

38. In view of the findings on issue no. 8 and 11, since tenancy itself is not established, Delhi Rent Control Act would not come into play.

Issue. 12 ­ lawful possession Whether the defendants are in lawful possession of the suit property?

39. The defendants claim its possession over the suit property CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 57 of 59 initially on the basis of tenancy and subsequently by virtue of GPA Ex. Ex. PW1/2. As far as possession through tenancy is concerned, findings on issue no. 8 and 11 already negated the same. As far as claim of possession vide GPA (Ex. P2) is concerned, though admittedly it authorises defendant no. 2 and 4 to take possession, however, this right stands terminated the moment said GPA is revoked. Revocation of GPA is duly proved. Even otherwise filing of a criminal case or institution of the suit seeking recovery of possession, itself is a notice of revocation of the possessory rights granted vide GPA Ex.P2. Hence, this issue is also decided against the defendants.

Relief :

40. The plaintiff has prayed for decree of possession, mesne profits @ Rs.25,000/­ per month and mandatory injunction. To sum up, in view of the admitted possession, documents admitted / proved on record and restored conveyance deed in favour of the plaintiffs by DDA, preponderance of probabilities are heavily titled towards plaintiffs. Even otherwise defendants cannot go beyond the title of plaintiff since they claimed it from them only. Therefore, in view of above findings the defendants are directed to handover the vacant / physical possession of the suit premises to the plaintiff.

41. Though mesne profits have been claimed @ Rs.25,000/­ per month w.e.f. three years preceding the filing of suit till realization CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 58 of 59 and has no rebuttal, however considering the location, size, total sale consideration, construction cost, this Court is of the view that mesne profits / damages / user charges @ Rs.10,000/­ per month with annual increase @ 5% per annum w.e.f. three years preceding the filing of suit till handing over of possession would serve the ends of justice. Simple interest @8% per annum on the unpaid amount w.e.f. three years preceding the filing of suit till realization is also awarded. No relief of mandatory injunction is granted since not pressed. No order as to cost. Decreed accordingly.

Decree sheet be prepared.

File be consigned to record room after due compliance.

Pronounced through video conferencing on 28.08.2021 (AJAY GARG) Additional District Judge 01.

NDD/PHC/New Delhi/28.08.2021 CS No. 57411/16 Trade International & Ors. Vs. Rajiv Pharmaceuticals & Ors Page No. 59 of 59