Delhi District Court
Smt. Parsandi Devi & Ors vs Sh. Om Prakash on 12 January, 2016
IN THE COURT OF SH. BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02 (SOUTHEAST),
SAKET COURTS, NEW DELHI
Civil Suit No. 593/12
Smt. Parsandi Devi & Ors.
..... Plaintiffs
Vs.
Sh. Om Prakash
..... Defendant
O R D E R
1. Vide this order I shall dispose of an application u/o 47 rule 1 CPC moved by the defendant for review of judgment dated 20.08.2014 and order dated 20.08.2015.
2. It is stated in the application that vide judgment dated 20.08.2014, the suit property bearing No. 12/3, Pant Nagar, New Delhi has been defined and proved under the absolute ownership of deceased Sh. Sumer Singh vide Perpetual Lease Deed Ex. PW1/1 and Conveyance Deed Ex. PW1/2 and the plaintiffs and defendant were held entitled to their respective share in the suit property being legal heirs of deceased Sh. Sumer Singh. However, perusal of Perpetual Lease Deed Ex. PW1/1 reveals that property bearing No. 12/3, Pant Nagar is a leasehold property and the lease deed Ex. PW1/1 pertains CS No. 593/12 Parsandi Devi & Ors. Vs. Om Prakash Page No. 1 of 14 to the land underneath the property bearing Flat No. 3 in Block 12, Pant Nagar leased jointly with the purchaser of Flat No. 4 and therefore the land underneath the Flat No. 3 is in joint lease with the allottee of Flat No. 4 and not in sole ownership of Sh. Sumer Singh. Similarly, Conveyance deed Ex. PW1/2 clearly shows that the allottee Sh. Sumer Singh shall acquire the leasehold rights to the land jointly with the coallottees. It is stated that both the Perpetual Lease Deed Ex. PW1/1 and Conveyance Deed Ex. PW1/2 in their respective schedules mention the annexed plan marked red, but both the plans have been concealed by the plaintiffs and the site plan filed by the plaintiffs Ex. PW1/4 is not in accordance with the description so given in the Perpetual Lease Deed Ex. PW1/1 and Conveyance Deed Ex. PW1/2 . It is stated that the entire area of 13.95 square meters which was in joint lease with the allottee of Flat No. 4 has been directed to be partitioned vide judgment dated 20.08.2014 and accordingly proclamation of sale also has been ordered in respect of the suit property not belonging absolutely to Sh. Sumer Singh which is not correct as per the description of property given in the documents Ex.PW1/1 and Ex. PW1/2. The leasehold land is in joint lease of allottee of Flat No. 4 and the coallotttee and thus same cannot be partitioned amongst the legal heirs of allottee of Flat No. 3. It is further averred that proclamation of sale of the suit property is CS No. 593/12 Parsandi Devi & Ors. Vs. Om Prakash Page No. 2 of 14 not in conformity of provision of Section 7 of the Partition Act and is not in accordance with the rules framed for auction of immovable property and further no notice of proclamation of sale has been served upon the defendant and thus sale of property suffers from material illegality and irregularity and same is liable to be set aside. It is further averred that no valuation of suit property was given and the valuation of the suit property cannot be equated with the circle rate prevailing in respect of the property. It is stated that there are error apparent on the face of the record as description of the suit property and its ownership is not correct. Therefore, it has been prayed that judgment dated 20.08.2014 and the order dated 20.08.2015 by which sale of suit property was confirmed may be recalled and the proclamation of sale of suit property may be set aside.
3. The plaintiffs have filed reply to the application contending that defendant is in possession of major portion of the suit property and does not want to vacate the same and hence filed the present application to delay the execution proceedings and disbursing the auction amount among the legal heirs of late Sh. Sumer Singh. It is denied that Flat No. 3 is in joint lease with the allottee of Flat No. 4 and not in sole ownership of Sh. Sumer Singh. It is stated that suit property is a flat on the ground floor and on the first floor there is another flat and as per lease and conveyance deed, there is some CS No. 593/12 Parsandi Devi & Ors. Vs. Om Prakash Page No. 3 of 14 easement rights i.e use of stair case and passage of open space to other flat owners and same can also be partitioned as per law. However, the plaintiffs have filed the suit for partition of the suit property i.e. the flat and they did not ask for partition of common area related to some easements rights of another flat owners and the court also granted the partition of the suit property i.e. the flat and has auctioned the same. The auction and judgment has no concern with the common area related to some easement rights as mentioned in the lease and conveyance deed. It is further averred that Authority has issued Lease and Conveyance deed for each flats separately i.e Flat No. 3, 4 and 5 to the owners and the common area of easements will always remain common as per the lease and conveyance deed and the terms and conditions mentioned in the lease and conveyance deed will also remain same and applicable on the buyer of the suit property and as such there is no error apparent on face of the record. The other contents of the application are stated to be wrong and denied and the plaintiffs have prayed for dismissal of the application.
4. I have heard the Ld. Counsel for the parties and perused the record carefully.
5. Ld. Counsel for defendant has vehemently argued that deceased Sh. Sumer Singh was not absolute lessee of the suit property as the President of India had granted joint lease in favour of CS No. 593/12 Parsandi Devi & Ors. Vs. Om Prakash Page No. 4 of 14 Sh. Sumer Singh along with allottee of Flat No. 4. He further argued that land underneath the Flat No. 3 i.e. the suit property is in joint lease with the allottee of Flat No. 4 and same is not in sole ownership of Sh. Sumer Singh and therefore leasehold land in joint lease of allottee of Flat No. 3 and co allottee i.e. allottee of Flat No. 4 cannot be partitioned. He further argued that sale of suit property has been erroneously made which does not pertain absolutely to Sh. Sumer Singh as it was joint lease with the allottee of Flat No. 4. Ld. Counsel has further argued that plaintiffs have concealed the site plan annexed with the perpetual lease deed and conveyance deed. He further argued that notice of sale of property was not given to the defendant and proclamation of sale of property has not been done in compliance of provisions of order 21 rule 54 and 66 of CPC. He further argued that no valuation of suit property was given and same cannot be equated with the circle rate. He submitted that plaintiffs have played fraud on the court by concealing the fact that suit property is in joint lease with the allottee of flat No. 4 and the leasehold property cannot be partitioned. Ld. Counsel for defendant has further submitted that that there are error apparent on the face of the record which warrant review of the judgment dated 20.08.2014 and order dated 20.08.2015. In support of his contentions, he has relied upon the judgment of the Hon'ble Apex Court in CS No. 593/12 Parsandi Devi & Ors. Vs. Om Prakash Page No. 5 of 14 S.P. Chengalvaraya Naidu (dead) by LRs. Vs. Jagannath (dead) by LRs & Ors., AIR 1994 SC 853.
6. On the other hand, Ld. Counsel for plaintiffs argued that application is hopelessly time barred as defendant is seeking review of the judgment after one year and without any application seeking condonation of delay in filing the application. He further argued that application has been moved just to frustrate the rightful share of the legal heirs of Sh. Sumer Singh in the suit property and the defendant is in occupation of major portion of the suit property and does not want to loose the same and by one way or the another is trying to stall the partition and disbursement of sale proceeds of the suit property. He further argued that the defendant has fully contested the matter and no such contentions as raised in the present application were taken by the defendant in the written statement or any other stage and therefore these contentions cannot be considered as same are only after thought. Ld. Counsel for plaintiff submitted that defendant had sufficient opportunity to raise the aforesaid contentions at relevant stage, but same were not raised at the right stage and at this stage same have been taken just to stall the disbursement of sale proceeds of the suit property. He further argued that there is no bar in partition of leasehold property and the Court has only partitioned the flat which was leased out and conveyed to late Sh. Sumer Singh vide CS No. 593/12 Parsandi Devi & Ors. Vs. Om Prakash Page No. 6 of 14 conveyance deed and not the common areas which are in joint lease with the allottee of Flat No. 4. He further argued that late Sh. Sumer Singh had become absolute owner by way of conveyance deed Ex. PW1/2 and there are no error apparent on the face of the record which warrants review of the judgment dated 20.08.2014 or order dated 20.08.2015. He submitted that review application is mischievous and abuse of process of law and is liable to be dismissed with exemplary cost.
7. Ld. Counsel for auction purchaser has argued that defendant is trying to stall the transfer of title and possession in favour of auction purchaser when sale has been confirmed by this court pursuant to the auction proceedings. He submitted that valuable right has accrued to the auction purchaser as he has deposited the sale consideration amount in the court and sale has also been confirmed by this court. He further submitted that once the auction sale is accepted by the court in favour of the auction purchaser, it becomes absolute and title vests in the auction purchaser. He further argued that defendant has not alleged any fraud or collusion in auction proceedings and defendant has no authority to assail the sale of the property in the absence of any allegation of fraud or collusion and therefore he cannot seek review of the judgment or the order confirming the sale. To fortify his arguments, the Ld. Counsel for CS No. 593/12 Parsandi Devi & Ors. Vs. Om Prakash Page No. 7 of 14 auctioneer purchaser has placed reliance on B. Arvind Kumar Vs. Government of India 2007 (5) SCC 745 and Sadashiv Prasad Singh Vs. Harendar Singh 2014 AIR (SC) 1078.
8. At the outset, it may be noted that contentions raised in the present application were never taken by the defendant in the written statement nor in the evidence nor during the course of arguments. The defendant has raised these pleas for the first time in the present application and therefore it cannot be said that there is error apparent on the face of the record. Even otherwise, if these contentions are taken into consideration on merit, the same are without any substance.
9. The defendant has contended that flat in question was not in the sole ownership of late Sh. Sumer Singh as land underneath the Flat No. 3 is in joint lease with the allottee of Flat No. 4 and therefore suit property i.e. the Flat No. 3 in Block No. 12, Pant Nagar, New Delhi could not have been partitioned amongst the legal heirs of late Sh. Sumer Singh.
10. Perusal of the record would reveal that suit filed by the plaintiffs for partition of suit property bearing No. 12/3, Pant Nagar, New Delhi was based on the premise that late Sh. Sumer Singh was leased out the said plot by DDA vide perpetual lease deed dated 10.08.1988 Ex. PW1/1 and later on same was conveyed to late CS No. 593/12 Parsandi Devi & Ors. Vs. Om Prakash Page No. 8 of 14 Sh. Sumer Singh by DDA vide conveyance deed dated 10.08.1988 Ex. PW1/2. Perusal of lease deed Ex. PW1/1 shows that a piece of land in Block No. 12, Pant Nagar, New Delhi measuring 13.95 sq. meter was leased out by President of India in favour of Sh. Sumer Singh jointly with the lessee of Flat No. 4. In the schedule attached with the lease deed Ex. PW1/1, the description of the land leased out to Sh. Sumer Singh jointly with the upper floor allottee was shown as Flat No. 3, Ground Floor in Block No. 12, Pant Nagar, New Delhi. As per para 4 of the Conveyance Deed Ex. PW1/2, the Authority has agreed to sell and the Allottee has agreed to purchase Flat No. 3, Block No. 12, Pant Nagar, New Delhi and an undivided share in the common portions/passage for Rs. 8250/ and the allottee of Flat No. 3 i.e. Sh. Sumer Singh has paid the total sum of Rs. 8250/ in respect of Flat No. 3 in Block No. 12. Schedule 1 attached with the conveyance deed also describes the ground floor flat bearing No. 3 in Block No. 12 consisting of one room, one MP Room, One WC and courtyard. Therefore, it is apparent that as per conveyance deed Ex. PW1/2, DDA has transferred the rights in Flat No. 3 in Block No. 12, Pant Nagar, New Delhi to Sh. Sumer Singh along with common rights with lessee of Flat No. 4. It is also apparent from the conveyance deed Ex. PW1/2 that the dwelling unit i.e. Flat No. 3 is separate from Flat No. 4. Though, lease was joint with the allottee of CS No. 593/12 Parsandi Devi & Ors. Vs. Om Prakash Page No. 9 of 14 Flat No. 4 but same was in respect of common portions i.e. passage leading to staircase, gallery and open space. The description of the plot transferred to late Sh. Sumer Singh categorically reveals that same was in respect of ground floor measuring 13.95 sq. meters and the common portions i.e. passage, staircase etc, shall be common to be used along with the lessee of Flat No. 4. The court vide judgment dated 20.08.2014 has also partitioned the said flat measuring 13.95 sq. meters and no partition has been done in respect of common areas which is in joint lease with allottee of Flat No. 4. Therefore there is no merit in the contention of the defendant the suit property being in joint lease with the allottee of Flat No. 4 could not have been partitioned. Even if the property is leasehold property, there is no bar in partition of the leasehold property and so far the joint lease in respect of land beneath the property in question is concerned, same would remain undivided. Vide conveyance deed, the constructed area has been conveyed, while rights in the land remained uneffected and there is no bar in partitioning the suit property which is separate dwelling unit on the ground floor while the Flat No. 4 is on the first floor and a separate dwelling unit.
11. So far as the contention of the defendant that plaintiffs have not filed the site plan annexed with the perpetual lease deed and conveyance deed and have concealed the same is concerned, the CS No. 593/12 Parsandi Devi & Ors. Vs. Om Prakash Page No. 10 of 14 defendant in the written statement or any stage of the proceedings has not disputed the description and area of the property in question which was transferred in favour of Sh. Sumer Singh by DDA. Therefore, when there is no dispute regarding the description or area of the suit property, non filing of the site plan annexed with the lease deed or conveyance deed has no effect or bearing on the present case.
12. Another contention of the defendant is that he was not given the notice of proclamation of sale of suit property and hence proclamation of sale was not done in accordance with law. The defendant admittedly had been throughout contesting the case and had been appearing in the matter regularly. Therefore, defendant cannot say that he was not aware of the sale proceedings of the suit property. Furthermore, public notice regarding sale of suit property was given to the general public by way of publication in the newspaper as well as by affixing the notice at the suit property and also at the court premises and hence the defendant cannot at this stage take such a plea that he was not aware of the notice of sale of suit property.
13. With regard to contention of the defendant that market value of the suit property was not given and circle rate cannot be equated with the market value, it is to be noted that the court while directing the sale of the suit property had fixed the minimum reserve CS No. 593/12 Parsandi Devi & Ors. Vs. Om Prakash Page No. 11 of 14 price of the sale as per the circle rate where the property in question is situated and the highest bid was accepted by the court auctioneer. Hence, there is no merit in this contention of the defendant that market value of the suit property was not given.
14. I also find substance in the contention of Ld. Counsel for plaintiffs that the defendant has not raised these contentions in the written statement and these pleas have been taken when the suit for partition has been decreed and the auction proceedings has been concluded and the sale is also confirmed by this court. Therefore, these pleas taken by the defendant are after thought to stall the process of distribution of sale proceeds amongst the legal heirs of late Sh. Sumer Singh.
15. It may also be noted that suit was decreed vide order dated 20.08.2014 and sale of property was confirmed by the court vide order dated 20.08.2015. The present application has been filed for review of judgment dated 20.08.2014 on 26.09.2015. As per Article 124 of Limitation Act, the limitation for seeking review of a judgment is 30 days from the date of decree of order. Thus, the present application seeking review of judgment dated 20.08.2014 which has been filed after about one year from the date of judgment is hopelessly time barred. The contention of the defendant that the error on the face of the record still exist and the cause of action is CS No. 593/12 Parsandi Devi & Ors. Vs. Om Prakash Page No. 12 of 14 continuing and the review petition is thus within the period of limitation is without any substance.
16. So far as the authority relied upon by the Ld. Counsel for defendant reported in AIR 1994 SC 853 (cited supra) is concerned, it has been held by the Hon'ble Apex Court that, "A litigant who approaches the court is bound to produce all the documents executed by him which are relevant to the litigation and if he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite parity and is liable to be thrown out at any stage". In the said case, the preliminary decree was obtained by playing fraud on the court. However, in the present case, the defendant has not been able to show that what fraud has been played by the plaintiffs in obtaining the decree and the defendant has nowhere in the written statement has taken the plea of fraud played by the plaintiff. The defendant has duly contested the case and after full fledged trial, the suit for partition was decreed. Hence, this authority is not applicable to the facts of present case.
17. It is also to be noted that the defendant has not challenged the share of the parties including his share in the suit property as declared vide judgment dated 20.08.2014. The parties were directed to devise a method so that suit property can be partitioned in an CS No. 593/12 Parsandi Devi & Ors. Vs. Om Prakash Page No. 13 of 14 effective manner after consulting with each other and one month time was granted to the parties to explore the possibility of partitioning the property. When the parties failed to partition the property amongst themselves, the order for sale of property was passed. The defendant who is in occupation of major portion of the suit property has been given 1/7th share in the suit property and as there are 14 other claimants who are entitled to their respective shares but they have been deprived of their share and some of them even are out of possession. It appears that the defendant who is in occupation of major portion in the suit property by moving the present application is trying to stall the distribution of sale proceeds amongst the other share holders in the suit property.
18. In view of aforesaid discussions, I do not find any merit in the review application filed by the defendant and hence same is hereby dismissed.
Announced in the open Court (Balwant Rai Bansal) on 12th January, 2016 Addl. District Judge 02 (SouthEast) Saket Courts, New Delhi CS No. 593/12 Parsandi Devi & Ors. Vs. Om Prakash Page No. 14 of 14 CS No. 593/12 Parsandi Devi & Ors. Vs. Om Prakash 12.01.2016 Present: None for the parties.
Be awaited.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi At 2.30 PM Present: None.
Be awaited.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi At 4.30 PM Present: None for the plaintiffs.
Son of the defendant.
Vide my separate order of even date, the review application moved by the defendant u/o 47 rule 1 CPC is dismissed.
Let sale certificate be issued in favour of auction purchaser in terms of order dated 20.08.2015. Parties to the suit who are in possession of the suit property are also directed to vacate the suit property within two months so that possession of same can be delivered to the auction purchaser.
Put up on 15.03.2016 for further proceedings.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 12.01.2016 CS No. 593/12 Parsandi Devi & Ors. Vs. Om Prakash Page No. 15 of 14