Allahabad High Court
Mrs. Ravi Bala Garg And Anr. vs Mrs. Tabassum Ghazala And 7 Others on 20 January, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:8485 Reserved on 21.11.2024 Delivered on 20.01.2025 In Chamber Case :- FIRST APPEAL No. - 663 of 2015 Appellant :- Mrs. Ravi Bala Garg And Anr. Respondent :- Mrs. Tabassum Ghazala And 7 Others Counsel for Appellant :- ,Ajai Shankar Pathak,Ajit Kumar,Anil Kumar Mehrotra,Arvind Singh,Durga Tiwari,Gaurav Srivastava,Manu Saxena,Mohit Kumar,Prashant Sharma,Rahul Mishra,Rahul Sahai,Sanjay Kumar Yadav,Saurabh Raj Srivastava Counsel for Respondent :- Ashish Kumar Singh,Mahendra Singh,Manu Srivastava,Sanjay Goswami,Vineet Pandey Hon'ble Kshitij Shailendra,J.
THE APPEAL
1. This is plaintiffs' appeal challenging the judgment and order dated 10.08.2015 passed by the learned Additional District Judge, Court No.14, Allahabad and decree based thereupon dismissing the Original Suit No. 274 of 2004 (Amit Garg and Another Vs. Smt. Tabassum Ghazala and Others). In the instant Appeal, the plaintiff No. 2/Ravi Bala Garg is the Appellant No. 1 and the plaintiff No. 1/Amit Garg is the Appellant No. 2.
Plaintiffs' case
2. One Saher Bano was the lessee of the Nazul site No. MM, Civil Station, Allahabad over which the Bungalow No. 11, Kanpur Road, Allahabad (hereinafter referred as 'property in question') was situated. She is said to have executed an Agreement to Sell dated 20.06.1976 in favour of one Mahesh Chandra Gupta for an alleged sale consideration of Rs. 1,00,000/- and is alleged to have received Rs. 50,000/- as advance money towards the same. The sale deed was to be executed within six months of the renewal of the lease of the aforesaid Nazul land in favour of Mahesh Chandra Gupta or his Nominee. Saher Bano expired on 07.09.1978 leaving behind the defendant Nos. 2, 3 and 4 (Javed Haider, Naved Haider and Tanvir Haider respectively) as her legal heirs. By amendment in the plaint, the plaintiffs added paras 11(e), 11(f), 12(c) in plaint denying their successorship and sought a declaration to the effect that Javed Haider, Naved Haider and Tanvir Haider were not the legal heirs of Saher Bano.
3. The plaintiffs' further case is that the aforesaid Mahesh Chandra Gupta, vide Nomination Agreement dated 12.11.1978, nominated one Uday Ram Garg to get the sale deed of the property executed in his favour and Mahesh Chandra Gupta was paid Rs. 55,000/- by Uday Ram Garg in that respect. Thereafter, Mahesh Chandra Gupta filed an Original Suit No. 231 of 1978 praying a decree for permanent injunction against Javed Haider, Naved Haider and Tanvir Haider. The suit was decreed vide order dated 28.02.1979 restraining Javed Haider, Naved Haider and Tanvir Haider from selling the bungalow and lease hold rights in the site thereof to anybody other than Mahesh Chandra Gupta or his nominee. The plaintiffs relied on a Will dated 01.09.1983 executed by Uday Ram Garg in their favour, who died on 02.12.1983. The plaintiffs' case is that they were willing to get the sale deed executed in their favour based on the aforesaid Will, the Nomination Agreement dated 12.11.1978 and Agreement to Sell dated 20.06.1976, but the defendant Nos. 2, 3 and 4 avoided the same. It is only when the plaintiffs learned that a freehold deed dated 29.03.2004 had been executed in favour of the defendant No.1 based on the nomination made by the defendant Nos. 2, 3 and 4 that the plaintiffs filed the instant suit to declare the aforesaid freehold deed dated 29.03.2004 as void and without jurisdiction.
4. The plaintiffs added Paras 7A, 7B, 7C to the plaint by amendment, wherein they referred to a compromise in furtherance whereof they received an amount of Rs. 1.30 crores through bank drafts, whereas they were promised by one Lal Chand Nirmal acting in collusion with Imtiaz Ahmad, husband of defendant No. I, a higher amount of Rs. 11 crores. The plaintiffs did not receive the remaining amount out of the aforesaid Rs. 11 crores and further suffered a loss of Rs. 4 crores due to the constructions having been demolished. The plaintiffs further added paras 8A, 8B, SC, SD, SH, 8I, 8J and 9A, 9B, 9C, 9D, 9E, 9F, 9G to the plaint by amendment, wherein the allegations were levelled against the Additional District Magistrate (Nazul), Allahabad and their Advocate Shri Omkar Nath Mishra, alleging that they also acted in collusion with the defendant No.1. The plaintiffs also alleged that the Order dated 27.03.2004 of the ADM (Nazul), Allahabad deciding the freehold application of the defendant No. I was passed without hearing them and the freehold deed was executed on 29.03.2004 for extraneous considerations and without jurisdiction. The plaintiffs further alleged that the freehold deed dated 29.03.2004 was executed in teeth of the order dated 28.02.1979 passed in Original Suit No. 231 of 1978 as well as the interim injunction order dated 19.07.2003 passed in Original Suit No. 388 of 2003. The undermentioned reliefs were sought by the plaintiffs:
1. Declare that the Freehold Deed dated 29.03.2004 executed by the ADM (Nazul), Allahabad in favour of Defendant No. 1 based on nomination by Defendant Nos. 2 to 4, as void and without jurisdiction; and
2. Direct the Defendants through Mandatory Inunction to transfer the property in question in favour of the Plaintiffs in a time bound manner and if the prayer is allowed then the Plaintiffs are ready to pay to the Defendants the amount payable towards freehold as determined by the Learned Court, and
3. Declare that Defendant Nos. 2, 3 and 4/Javed Haider, Naved Haider and Tanvir Haider are not the legal heirs of Saher Bano, the erstwhile lessee of the property in question; and
4. Damages of Rs. 4 Crores be awarded to the Plaintiffs against the Defendant No. 1 due to demolition of the bungalow of the property in question.
5. Declare the Order dated 27.03.2004 passed by the Defendant Nos. 5 and 8 as void, inapplicable and without jurisdiction.
Defendant's Case
5. The suit was contested by the defendants primarily on the grounds that the predecessor in interest of the plaintiffs, one K. B. Garg, was the tenant in the property in question and the defendant Nos. 2, 3 and 4 were the lessees of Nazul Site vide registered lease deed dated 07.07.1991 executed on behalf of the State of U. P. in their favour for a duration of 90 (30+30+30) years w.e.f. 07.08.1960 and they had a right to nominate the defendant No.1 for conversion of the leasehold rights into freehold; the alleged Agreement dated 20.06.1976 said to have been executed by Saher Bano in favour Mahesh Chandra Gupta, being relied upon by the plaintiffs, in respect of the Bungalow No. 11 (situated over Nazul Site No. MM, Civil Station, Allahabad) was forged and fabricated and conferred no right. The defendants also denied existence of the alleged Nomination Agreement dated 12.11.1978 by Mahesh Chandra Gupta in favour of Uday Ram Garg and termed the same as forged and fabricated and not conferring any right upon the plaintiffs. They also stated that the judgment and order dated 28.02.1979 passed in Suit No. 231 of 1978 was fraudulently obtained in a collusive manner and a Suit No. 785 of 2001 had been filed by the defendant Nos. 2, 3 and 4 for declaring the aforesaid judgment and order dated 28.02.1979 along with the decree dated 09.03.1979 drawn in Suit No. 231 of 1978 as fraudulent, ineffective, null and void. The nomination dated 06.11.2001 by the lessees/defendant Nos. 2, 3 and 4/Javed Haider, Naved Haider and Tanvir Haider in favour of defendant No. 1/Smt. Tabassum Ghazala in respect of nazul site was validly made and she had rightly filed the freehold application dated 27.11.2001 in respect of conversion of the nazul land in her favour.
6. The defendants' further plea was that the ADM (Nazul), Allahabad, vide Order dated 27.03.2004, rightly decided that the plaintiffs had no right in respect of the Nazul site and the said nazul land was to be converted in favour of the defendant No. 1/Smt. Tabassum Ghazala; accordingly, in furtherance of the aforesaid order dated 27.03.2004 of the ADM (Nazul), Allahabad, the freehold deed dated 29.03.2004 was executed on behalf of the State of U. P. in favour of the defendant No. 1. The order dated 27.03.2004 was passed in compliance of the order dated 26.02.2004 of this Court passed in Civil Misc. Writ Petition No. 7998 of 2004 filed by the plaintiffs themselves and, furthermore, the injunction order dated 28.02.1979 passed in Suit No. 231 of 1978 as well as the temporary injunction order dated 19.07.2003 passed in Suit No. 388-of-2003 were considered by this Court. The State of U. P. was not a party in the aforesaid Suit No. 231 of 1978 as well as in the Suit No. 388 of 2003 and there was no order against the State Government restraining it from deciding the freehold application, which was decided pursuant to this Court's order dated 26.02.2004 passed on the plaintiffs' writ petition. The defendants, in their additional written statement, specifically stated that aforesaid Mahesh Chandra Gupta had filed his affidavit before the ADM (Nazul), Allahabad and denied any agreement having been executed in his favour or by him in favour of any person in respect of the property in question. It is the case of the defendant No.1 that an amount of Rs. 2,75,00,000/- including Rs. 1,30,00,000/- through bank drafts in favour of the plaintiffs and Ravindra Kumar Garg (husband of plaintiff No. 2 and father of plaintiff No.1) was paid when a compromise was reached between the plaintiffs and the defendant No. 1 through Lal Chand Nirmal, and the plaintiffs had vacated the property in question and handed over the peaceful possession to aforesaid Lal Chand Nirmal on 25.07.2008.
7. The plaintiffs produced following witnesses:-
1. PW-1-Radhika Garg (daughter of plaintiff No. 2).
2. PW-2-Ravi Bala Garg (plaintiff No. 2).
3. PW-3-Rakesh Pandey (son-in-law of plaintiff No. 2).
4. PW-4-Ranjana Gupta.
5. PW-5-Satyadev Dwivedi.
The defendants produced only DW-1-Imtiaz Ahmad (husband of defendant No. 1).
8. The trial court framed following issues:-
1. Whether the alleged Agreement to Sell dated 20.06.1976 was executed by Saher Bano in favour of Mahesh Chandra Gupta?
2. Whether the alleged Nomination Agreement dated 12.11.1978 was executed by Mahesh Chandra Gupta in favour of Uday Ram Garg?
3. Whether the instant Suit No. 274 of 2004 was maintainable?
4. What was the effect of the Permanent Injunction Order dated 28.02.1979 passed in Suit No. 231 of 1978 in respect of execution of Freehold Deed dated 29.03.2004 in favour of the Respondent No. 1?
5. What was the effect of the Temporary Injunction Order dated 19.07.2003 passed in Suit No. 388 of 2003 in respect of execution of Freehold Deed dated 29.03.2004 in favour of the Respondent No. 1?
6. What is the effect of the conduct of the plaintiffs-appellants during the pendency of the suit?
7. Whether the Freehold Deed dated 29.03.2004 in favour of the Respondent No. 1 is valid?
9. After contest, the trial court dismissed the suit by the judgment and decree impugned in this appeal.
10. I have heard learned counsel for the parties and perused the original record of trial proceedings as well as the paper books.
11. From the record, following history of multifarious litigation is found in between the parties:-
Sl. No. Original Suit Parties Name Relief Status
1. Original Suit No. 231 of 1978
Mahesh Chandra Gupta Vs. Sr Syed Javed Haider and others Permanent prohibitory injunction restraining defendants from selling the Bungalow No.11, Kanpur Road, Allahabad and the lease hold rights in the site to anybody else other than plaintiff and his nominee in terms of agreement dated 20.06.1976.
Decreed vide order dated 28.02.1979. Injunction was granted in favour of Mahesh Chandra Gupta. However, the decree dated 28.02.1979 was set aside vide order dated 31.03.2009 passed in Original Suit No.785 of 2001.
Civil Appeal No.89 of 2009 was dismissed on 19.04.2022.
2. Original Suit No. 785 of 2001 Sr Syed Javed Haider and others Vs. Mahesh Chandra Gupta For declaration that the order dated 28.02.1979 and the decree dated 09.03.1979 of Original Suit No. 231 of 1978 is forged, null and void and inoperative.
Decreed vide order dated 31.03.2009.
Civil Appeal No. 89 of 2009against the order dated 31.03.2009 was dismissed on 19.04.2022.
3. Original Suit No. 721 of 2001 Ravindra Kumar Garg and others Vs. Syed Javed Haider and others Permanent prohibitory injunction not to interfere in peaceful possession of the plaintiffs in occupation of the Bungalow No.11, Kanpur Road, Allahabad and not creating third party rights.
Dismissed vide order dated 11.11.2008 ...........
Lessees were made parties in the suit, but Smt. Tabassum Ghazala was not arrayed rather her husband was arrayed as defendant no.4.
4. Original Suit No. 226 of 2002 Ravi Bala Garg and another Vs. Syed Javed Haider and others Specific performance of contract in terms of agreement for sale dated 20.06.1976 and order dated 28.02.1979.
Decreed ex-parte vide order dated 04.09.2004. Thereafter, recall application and compromise application were filed by the plaintiffs.
Original Suit No.226 of 2002 was dismissed vide order dated 23.09.2008.
5. Original Suit No. 388 of 2003 Ravi Bala Garg and another Vs. Syed Javed Haider, and others Permanent prohibitory injunction not to transfer the property in question in favour of any person other than in favour of the plaintiffs and to restrain from creating charge over the property in question and getting it converted into free hold dated.
Temporary injunction was granted vide order dated 19.07.2023. Thereafter, Original Suit No. 388 of 2003 was dismissed vide order dated 03.05.2006.
Recall application (registered as Misc. Case No. 31 of 2006) was allowed vide order dated 03.10.2009 and the Suit was restored to its original number.
The Suit No. 388 of 2003 was dismissed vide order dated 10.09.2013.
POINTS FOR DETERMINATION
12. Having heard learned counsel for the parties, following points for determination arise for consideration as per Order 41 Rule 31 C.P.C. in this Appeal:-
1. Whether the freehold deed dated 29.03.2004 is valid ?
2. What is the effect of compromise and receiving huge sums by the plaintiff-appellants and delivery of possession by them?
3. Whether the plaintiff-appellants can succeed at the strength of agreement for sale dated 20.06.1976, nomination dated 12.11.1978 and Will dated 01.09.1983 ?
4. Whether the plaintiff-appellants were deprived of proper opportunity of hearing in the suit proceedings which vitiates the final decision ?
5. Whether written statement filed on behalf of State Authorities was defective so as to exclude its defence from record?
Consolidated Arguments on behalf of plaintiff-appellants
13. Learned counsel for the plaintiff-appellants has argued and also filed written submissions stating that the written statement filed by the State of U.P. not being signed by the District Magistrate or Governor, it has no value; District Government Counsel (Civil) has no right to file a written statement or contest on behalf of the defendant-respondent Nos.5, 7 and 8; he had no authority to appear or contest the proceedings in absence of any vakalatnama; plaint averments having not been denied would be deemed to have been admitted as per Order 8 Rule 5 CPC; statement of Ravi Bala Garg was not rebutted by defendants; 10.08.2015 was not a date fixed for arguments and, hence, in absence of plaintiffs on that day, the only course open for the trial court was to dismiss the suit under Order 9 Rule 3 CPC read with Order 17 Rule 2 and, hence, decision on merits is erroneous; criminal proceedings were drawn against the defendants on account of murder of security guard of the plaintiffs; all the defendants had colluded amongst themselves to the detriment of the interest of the plaintiffs; State of U.P. had not delegated power upon Additional District Magistrate (Finance and Revenue), namely Shri S.N. Srivastava, who had passed the order dated 27.03.2004; Mr. O.N. Mishra, Advocate, who had appeared before the A.D.M., had never been engaged as the counsel for the plaintiffs; A.D.M. not being a court, no counsel could argue the matter before him; the writ court had not conferred any jurisdiction upon the defendant No.8 to decide the controversy and, hence, the order dated 27.03.2004 was without jurisdiction; O.S. No. 785 of 2001 was barred by limitation; Original freehold deed dated 29.03.2004 was never produced in court nor proved; freehold deed was executed in violation of the injunction order dated 19.07.2003 passed in O.S. No.388 of 2003 and, hence, a nullity; sale is hit by Section 52 of the Transfer of Property Act; A.D.M. had no right to pass order dated 27.03.2004 or to execute freehold deed dated 29.03.2004; the trial court has ignored the proceedings against the defendants on the criminal side; the only DW Imtiyaz, not being a party to the suit, his testimony could not be believed; the Presiding Officer of the trial court was in collusion with the defendant no. 1; the A.D.M., being defendant no. 8, was also in collusion with the plaintiffs' counsel Sri O.N. Mishra; the findings recorded by the trial court being beyond the issues framed and there being various proceedings pending before the High Court, the trial court should have waited for their culmination before deciding the suit finally. Reference of various authorities in respect of the pleas raised has been given in the written submissions by giving their citations only.
Consolidated Arguments on behalf of defendants-respondents
14. Per Contra, Sri Sanjay Goswami, learned counsel for the defendant-respondents No.1 to 4, submits as under:
1.The Unregistered Agreement to Sell dated 20.06.1976 of Saher Bano in favour of Mahesh Chandra Gupta was not proved. Original document was never produced before Court and only photocopy was filed by the plaintiffs which does not even bear signature of Saher Bano.
2. Mahesh Chandra Gupta was never produced by the plaintiffs in evidence to prove the execution of the alleged Agreement to Sell dated 20.06.1976, which is evident from the list of witnesses submitted on behalf of the plaintiffs.
3. Even otherwise, the Agreement to Sell dated 20.06.1976 was void ab initio as the lease had expired on 07.08.1960. As such, the lessee/Saher Bano would be deemed to be an unauthorized occupant in accordance with U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972. It is settled law that an Agreement to Sell by ex- lessee after expiry of lease is void-ab-initio, vide 2017 SCC Online All 3871 (DB)=(2017) 399 ITR 611s (Paras 28, 29, 30, 31, 32): Commissioner of Income Tax Vs. Carlton Hotel Pvt. Ltd., affirmed by Hon'ble Supreme Court vide Order dated 06.11.2017 passed in Special Leave to Appeal (Civil) No. 28637 of 2017 Carlton Hotel Pvt. Ltd. Vs. Commissioner of Income Tax 1, Lucknow.
4. The Unregistered Nomination Agreement dated 12.11.1978 of Mahesh Chandra Gupta in favour of Uday Ram Garg was not proved. It only bears signatures of Mahesh Chandra Gupta who was never produced by the plaintiffs in evidence. Nomination Agreement dated 12.11.1978 was not even referred to in the injunction Suit No. 231 of 1978 (even though the same is claimed to have been executed 10 days prior to filing of the said Suit in 1978).
5. The Unregistered Nomination Agreement dated 12.11.1978 was compulsorily registrable and cannot be received in evidence. It either created/purported to create a third party right in respect of the immovable property or no right was created through the same. If right was created/purported to be created in respect of immovable property, then instrument was compulsorily registrable under Section 17(1)(b) of Registration Act, 1908 and, as per Section 49 (U. P. Amendment) of Registration Act, 1908 the same cannot be received in evidence. If no right was created/purported to be created in respect of immovable property, then Suit No. 274 of 2004 itself was not maintainable.
6. As per Agreement to Sell dated 20.06.1976, the sale deed in respect of the property in question was to be executed within 6 months of execution of fresh lease deed. The Fresh Lease of Nazul Site was executed on behalf of the State of U.P. in favour of defendant Nos. 2, 3 and 4 on 07.07.1991 which was in the knowledge of K.B. Garg, witness in aforesaid Agreement to Sell dated 20.06.1976 and K. B. Garg was the son of Uday Ram Garg and father-in-law of plaintiff No. 2 and grand father of plaintiff No.1.
7. No suit was filed by Mahesh Chandra Gupta and/or plaintiffs against defendant Nos. 2, 3 and 4 for specific performance of the Agreement to Sell dated 20.06.1976 after expiry of 6 months period from the execution of the lease deed dated 07.07.1991. Even in the instant suit, there was no prayer regarding specific performance of Agreement to Sell dated 20.06.1976.
8. No privity of contract was there between the plaintiffs and the defendants. Admittedly, the plaintiffs claim right through Mahesh Chandra Gupta. As such, Mahesh Chandra Gupta was necessary party but he was not made a party to the instant suit. It is settled law that in the absence of a necessary party, the relief(s) prayed in the suit cannot be granted and the suit would fail.
9. No cause of action arose against the defendant Nos. 1, 2, 3 and 4. In para 4 of the plaint, it was admitted that Javed Haider, Naved Haider and Tanvir Haider were legal heirs of Saher Bano and became lessees of the nazul site and, thereafter, in para 11(e) of plaint it was alleged that Javed Haider, Naved Haider and Tanvir Haider were not successors of Saher Bano and were not the lessees of the Nazul Site and the prayer A/2 of plaint was to declare the same. If the averments of the plaintiffs in para 11(e) of the plaint are accepted, then there is no cause of action against the defendant Nos. 1, 2, 3 and 4 in respect of the nazul site.
10. The permanent injunction order dated 28.02.1979 passed in Suit No. 231 of 1978 in respect of execution of freehold deed dated 29.03.2004 restraining defendants from selling the bungalow and lease hold rights in the site thereof to any body other than the plaintiffs or their nominee. Injunction order dated 28.02.1979 was set aside vide order dated 31.03.2009 passed in Suit No. 785 of 2001.
11. Statement was made on 30.03.2009 by Mahesh Chandra Gupta before the trial court in Suit No. 785 of 2001 that he had never filed Suit No. 231 of 1978 and had no knowledge of the order dated 28.02.1979. Injunction Order dated 28.02.1979 was a "right in personam" in favour of Mahesh Chandra Gupta. If, at all, anyone could claim rights based on injunction order dated 28.02.1979, it was only Mahesh Chandra Gupta who could have initiated any legal proceedings in respect of violation thereof. Mahesh Chandra Gupta did not file any Execution proceedings under Order 21 Rule 32 CPC for violation of Injunction Order dated 28.02.1979 against defendant Nos. 2, 3 and 4/Javed Haider, Naved Haider and Tanvir Haider.
12. The rights of Mahesh Chandra Gupta were not transferred in favour of Uday Ram Garg through Unregistered Nomination Agreement dated 12.11.1978. Mahesh Chandra Gupta, vide affidavit dated 22.07.2003 before ADM (Nazul), Allahabad, as recorded in the order dated 27.03.2004 of ADM (Nazul), Allahabad, did not object to the Nomination dated 05.11.2001 by lessees/Shri Javed Haider, Shri Naved Haider and Shri Tanvir Haider before DM, Allahabad to convert Nazul Site into freehold in favour of Ms. Tabassum Ghazala. He denied having executed any agreement nominating Shri Uday Ram Garg and admitted that he has no right in the land in question, that he has not filed any suit nor in future will he file any suit in respect of the land in question and if any person claiming under him files any claim, then the same be considered as non-est.
13. Vide order dated 26.02.2004 passed in Civil Misc. Writ Petition No. 7998 of 2004 filed by plaintiffs, this Court specifically directed ADM (Nazul), Allahabad to decide the representations of the plaintiffs (against the freehold application of the defendant No.1). Injunction Order dated 28.02.1979 was considered by this Court. Thus, the injunction order dated 28.02.1979 stood superseded by the order dated 26.02.2004 of this Court. The injunction order was not binding on State of U.P. as it was not party in Suit No. 231 of 1978. Additional District Magistrate (Nazul), Allahabad passed the Order dated 27.03.2004 in compliance of the order dated 26.02.2004 of this Hon'ble Court. Freehold deed dated 29.03.2004 was executed by the State of U.P. in favour of defendant No.1 as a consequential action in furtherance of the order dated 27.03.2004. Even otherwise, the effect of violation of injunction order dated 28.02.1979 (already set aside vide order dated 31.03.2009 passed in Suit No. 785 of 2001) cannot be considered in the instant Suit.
14. The temporary injunction order dated 19.07.2003 passed in Suit No. 388 of 2003 in respect of execution of freehold deed dated 29.03.2004 in favour of the Respondent No. 1 reads as-"अतः प्रतिवादीगण को नियत तिथि तक विवादित संपत्ति को वादीगण के अलावा किसी अन्य को बेचने व किसी प्रकार भार आरोपित एवं फ्रीहोल्ड करने से अस्थायी रूप से निषेधित किया जाता है।" It only means- Not to SELL; Not to CREATE CHARGE; and Not to FREEHOLD. No transfer was made nor were third-party rights created by defendant Nos. 1, 2, 3 and 4 in respect of the property in question after injunction order dated 19.07.2003, no charge was created by defendant Nos. 1, 2, 3 and 4 nor did they free hold the property in question. Injunction order dated 19.07.2003 against respondent was NOT TO DO Freehold (फ्रीहोल्ड करने से) and there was no direction regarding फ्रीहोल्ड करवाने. As such, there was no injunction order restraining the defendant No. 1 from getting the free hold deed executed in their favour.
15. The plaintiffs, admittedly, compromised with Lal Chand Nirmal (acting on behalf of the defendant No.1) and, admittedly, took an amount of Rs. 1,30,00,000/- through bank drafts. They admittedly handed over peaceful possession of the property in question (under their tenancy) to Lal Chand Nirmal (acting on behalf of the defendant No. 1). (Paras 7A and 7C of plaint)
16. The plaintiffs, vide registered Power of Attorney dated 25.07.2008, appointed Lal Chand Nirmal as their Power of Attorney to withdraw all the suits pending between the parties (including the instant suit) in respect of the property in question. The Withdrawal Application dated 06.08.2008 was filed on behalf of the plaintiffs.
17. The plaintiffs, on 21.04.2009, cancelled the Power of Attorney dated 25.07.2008 in favour of Lal Chand Nirmal. Thus, the aforesaid conduct of the plaintiffs of compromising and agreeing to withdraw the instant suit and, thereafter, again contesting the instant suit attracts principle of Estoppel by Conduct as envisaged in Section 115 of Evidence Act, 1872.
18. Freehold Deed dated 29.03.2004 in respect of the Nazul site executed on behalf of the State of U.P. in favour of the defendant No. 1 is valid, effective and enforceable. It is not disputed that the property in question was a Nazul land owned and managed by the State Government and the defendant Nos. 2, 3 and 4 were the lessees, having leasehold rights under the lease deed dated 07.07.1991 executed by the State Government. The freehold deed was executed by the State Government under the then existing freehold policy. The same, therefore, cannot be questioned on the ground of authority of the State Government. Even if it is assumed that the freehold deed dated 29.03.2004 was executed in favour of defendant No. 1 in violation of the Injunction Order dated 28.02.1979 and/or temporary injunction order dated 19.07.2003, then too the freehold deed is not void since the injunction order dated 28.02.1979 was set aside vide order dated 31.03.2009 passed in Suit No. 785 of 2001 and the Suit No. 388 of 2003 (wherein the temporary injunction order dated 19.07.2003 was passed) was dismissed vide Order dated 10.09.2013, vide 2016 SCC OnLine All 3759 (Paras 2, 17): Badruddin and Others Vs. Ram Surat and Others. Execution of sale deed in violation of interim order of Court which does not cause an impediment in the decision of the suit or grant of decree as claimed by plaintiffs, if found entitled to the same, is not void, vide 2008 SCC Online Del 1327 (Paras 7, 8, 9, 10): A. K. Chaterjee Vs. Ashok Kumar Chaterjee.
DISCUSSION AND FINDINGS Point No. 4- Whether the plaintiff-appellants were deprived of proper opportunity of hearing in the suit proceedings which vitiates the final decision ?
15. Having considered arguments of the appellants on this line coupled with allegations of collusion levelled against all, as far as the submission that Mr. O.N. Mishra was never engaged as a lawyer or that he had colluded with the defendants, this Court may observe that the appellants had made a complaint against Mr. O.N. Mishra, Advocate before the Bar Council of U.P., registered as DC Case No.32 of 2014 alleging therein that to pursue their cases, they had engaged him as their Advocate in various suits and even criminal proceedings but he misused his position as such and colluded with the opposite side, obtained signatures on blank papers and did not return the original agreement for sale dated 20.06.1976 to the plaintiffs. A plea was raised before the Bar Council to issue a direction to Mr. Mishra to return the blank signed papers, Vakalatnamas and original agreement and to punish him for committing professional misconduct.
16. The Court finds that Vakalatnamas executed by appellants in favour of Mr. O.N. Mishra, Advocate in multifarious proceedings, both civil and criminal, are on record and appended along with the appellants' paper book. There is nothing on record to show that Vakalatnamas were ever withdrawn nor the result of proceedings initiated before the Bar Council has been brought on record, therefore, the allegations levelled against Mr. O.N. Mishra, Advocate do not stand substantiated to benefit the appellants in either way. Contrarily, there is on record withdrawal applications filed by the plaintiffs in Original Suit No. 274 of 2004, Misc. Case No.26 of 2006, Suit No.721 of 2001/ Transfer Application No.970 of 2008, Original Suit No. 226 of 2002 to the effect that during the pendency of the proceedings, parties have compromised the matter and, therefore, the plaintiff-appellants do not wish to pursue the lis and their case be dismissed. These applications were filed either by the plaintiffs or by their power of attorney, namely, Shri Lal Chandra Nirmal. Power of attorney executed in favour of Shri Lal Chandra Nirmal is also on record. Therefore, the allegations of collusion or misuse of position/power either by Shri O.N. Mishra, Advocate or Shri Lal Chandra Nirmal do not stand substantiated and, hence, rejected.
17. As far as the submission that 10.08.2015 was not a date fixed for arguments and, in absence of plaintiffs on that day, suit could not have been decided on merits, this court deems it appropriate to make elaborate discussion as regards conduct of the plaintiff-appellants not only before the trial court but also before this Court. The relevant order sheet of suit proceedings held in the year 2015 has been appended along with the written submissions filed by the appellants. A perusal thereof would show that on 09.04.2015, none appeared to press a recall application, paper No. 539-C filed by the appellants and the trial court rejected the same by a reasoned order mentioning that it was not clear as to which order plaintiffs wanted to get recalled. On 27.04.2015 and 14.05.2015, the trial court recorded the conduct of the plaintiffs who wanted to deliberately delay the proceedings taking shield of certain matters pending before the High Court and observed that there being no stay order, contrarily, there being various directions issued by the High Court to decide the suit proceedings expeditiously, proceedings could not be stayed. On 20.05.2015, the trial court observed that sufficient opportunity to argue the matter had been given and judgment was reserved permitting the appellants to file written submissions. On 27.05.2015, an order was passed that instead of filing written submissions, the plaintiff-appellants filed application 555-C praying for adjournment. The trial court, by referring to proceedings of Transfer Application Nos. 852 of 2012, 423 of 2012, 58 of 2012, 91 of 2014 (all rejected by District Judge), orders passed by this Court in Revision No. 183 of 2005, Writ Petition No. 151 of 2010, Revision No. 351 of 2010, Writ Petition Nos. 942 of 2011, 28727 of 2012, 1938 of 2012, 58160 of 2013, 14159 of 2014, Revision No. 244 of 2014, Writ Petition No. 56244 of 2014 and Revision No. 92 of 2012, observed that the High Court had directed expeditious disposal of the suit but the plaintiffs were committing abuse of the process of law. The trial court, accordingly, rejected adjournment application by imposing cost of Rs.7,000/- with a clear direction that the plaintiffs may bring stay order upto 30.05.2015, failing which, matter shall be decided on merits. On 30.05.2015, the trial court fixed 01.07.2015 due to ensuing summer vacations. Then, on 15.07.2015, 21.07.2015 and 25.07.2015 also, adjournment applications filed by the plaintiffs were rejected and, even then, the suit proceedings were posted for arguments fixing 28.07.2015. On the date so fixed, the matter was adjourned for the next day on account of lawyers abstaining from work. On 29.07.2015, the trial court recorded that the plaintiffs' adjournment applications had already been rejected and they have not advanced arguments, whereas the defendants have argued the matter and filed written submissions. The case was fixed for delivery of judgment on 30.07.2015 and, even on that date, adjournment application was filed by the plaintiffs. The matter was fixed for 05.08.2015 and by referring to various orders passed by this court, plaintiffs were granted last opportunity to argue the matter fixing 10.08.2015. On 10.08.2015 also, taking note of conduct of the appellants and rejecting another adjournment application filed on their behalf, the trial court posted the matter after lunch for delivery of judgment. The case was called out after lunch when the plaintiffs' absence was noted and judgment was delivered.
18. The aforesaid proceedings show that it is not a case where, on account of single absence of the plaintiffs on 10.08.2015, the case was decided on merits, rather on every date the plaintiffs avoided hearing and absence on the date of delivery of judgment cannot mean that the trial court was not competent to decide the suit on merits.
19. Here, the Court may refer the conduct of the plaintiffs before this Court also during the course of final hearing of this appeal. A detailed order in this regard was passed on 21.11.2024 while reserving judgment in this appeal, taking note of the abuse of the process committed by the plaintiffs before this Court. The entire order is reproduced as under:-
1. This case is a glaring example of a situation as to how an unscrupulous litigant attempts to pollute the clear stream of justice delivery system and wants to take the Court for a ride, however, carrying a wrong impression as if the Court is blind.
2. This appeal was listed for further hearing at 2.00 p.m. today. On the last occasion i.e. 13.11.2024, after hearing Sri Saurabh Raj Srivastava, learned counsel for the plaintiffs-appellants and Sri Sanjay Goswami, learned counsel for the respondent no. 1 at length, following order was passed:-
"1. Heard Sri Saurabh Raj Srivastava, learned counsel for the plaintiff-appellants and Sri Sanjay Goswami, learned counsel for the respondent no.1.
2. Arguments are continuing.
3. During course of the argument, Sri Sanjay Goswami, learned Counsel for the respondent no.1 has filed a summary of proceedings giving rise to the present appeal, the same is taken on record.
4. List for further hearing on 21.11.2024 at 02:00 P.M."
3. Today a mention was made by Sri Gaurav Tiwari, Advocate at 10:00 a.m. that Sri Rahul Sripat, learned Senior Counsel had received instructions only last evening and he shall appear on behalf of the appellants and, therefore, the matter may be adjourned today. The Court asked Sri Tiwari to call counsel for other side any time to entertain the request for adjournment.
4. Sri Sanjay Goswani, learned counsel for respondent nno. 1 is present at 2.00 p.m. and states that arguments on behalf of the appellants are already over and he too has been heard simultaneously and sufficiently. Sri Saurabh Raj Srivastava, who had appeared on behalf of the appellants on 13.11.2024 and had argued the appeal at length, is also present and states that his client has received no objection from him last evening. Sri Gaurav Tiwari, learned counsel, who had mentioned in the morning, is also present and is still pressing his prayer to adjourn the matter.
5. The Court recollects and remembers that when hearing in this appeal commenced on the previous date i.e. 13.11.2024, the Court perused a letter written by Smt. Ravi Bala, i.e. appellant no. 1 to the Hon'ble The Chief Justice of this High Court with its copy forwarded to the Hon'ble Judge, who had earlier heard the matter, raising allegations against her counsel, who had, on 11.03.2024, advanced arguments. The letter is on record of this appeal. It is also mentioned in the letter that she had not given Vakalatnama to any counsel. The entire letter reads as under :-
"उच्च न्यायालय इलाहाबाद सेवा मे, माननीय चीफ जस्टिस महोदय इलाहाबाद उच्च न्यायालय, इलाहाबाद।
पोस्ट ऑफिस इलाहाबाद हाईकोर्ट एक.ओ. (सब आफिस) इलाहाबाद, उ०प्र० पिन कोड-211017 विषय- प्रथम अपील नं० 663/2015 श्रीमती रविबाला गर्ग व अन्य बनाम श्रीमती तपस्सुम गजाला व अन्य।
महोदय,
1. मै रवि बाला गर्ग पत्नी स्व० रवीन्द्र कुमार गर्ग, उम्र 80 वर्ष, निवासिनी मकान 11 कानपुर रोड, इलाहाबाद वर्तमान पता बी-65, इन्द्रानगर, लखनऊ की रहने वाली हूँ।
2. यह कि माननीय उच्च न्यायालय में प्रथम अपील नं० 663/2015 श्रीमती रविबाला गर्ग व अन्य बनाम श्रीमती तपस्सुम गजाला व अन्य विचाराधीन है।
3. यह कि मेरे तीन बेटियां व एक बेटा है।
4. यह कि मेरा बेटा अमित गर्ग डिफरेन्टली एबल्ड है लिहाजा मुकदमे की पैरवी नही कर सकता।
5. यह कि मेरी तीनों बेटियां की शादी हो चुकी है जिसमें से मेरी दो बेटियां गुजरात व बाम्बे में रहती है।
6. यह कि मेरी तीसरी बेटी राधिका गर्ग पत्नी स्व० राकेश पाण्डेय इस मुकदमें की पैरवी माननीय उच्च न्यायालय में करती है।
7. यह कि दिनांक 19.02.2024 को इलाहाबाद में सीनियर वकील इन्गेज करने के लिये मेरी बेटी राधिका गर्ग इलाहाबाद आयी थी और अपने पुराने वकीलों को मुकदमें से हटाने की बात कर रही थी जिससे कुछ पुराने वकीलों की वजह से एक क्रिमिनल केस जो कि इसी सिविल केस का आफ सूट है उसमें उनको धोखे से गिरफ्तार करा दिया गया है। अभी मेरी बेटी राधिका गर्ग नैनी जेल में निरूद्ध है।
8. मुझे यह बताया गया कि मेरे मुकदमें में दिनांक 11.03.2024 को किसी वकील साहब ने बहस किया जिनको किसी भी पक्षकार ने वकालातनामा नहीं दिया है।
9. यह कि मैं माननीय न्यायालय से विनम्र निवेदन करती हूँ मेरे मुकदमें की सुनवाई किसी भी पुराने वकील से न करायी जाये। जब मेरी बेटी जेल से बाहर निकलेगी तब उचित वकील इन्गेज करके अपने मुकदमें की बहस करवायेगी अभी जो भी वकील मेरे मुकदमें की बहस कर रहे है उन्हें तत्काल प्रभाव से मना करने की कृपा करें।
दिनांक-
सीसी टू- माननीय न्यायाधीश श्री वी.सी. दीक्षित (जे) कोर्ट नं०9, पोस्ट आफिस इलाहाबाद हाईकोर्ट एस.ओ. (सब आफिस) इलाहाबाद, उ०प्र० पिन कोड-211017 Seal: Registrar General R.G. Submitted 21/03/24 C.P.C.
Dated 20.03.2024 प्रार्थी रवि बाला गर्ग निवासिनी मकान 11 कानपुर रोड, इलाहाबाद वर्तमान पता बी-65, इन्द्रानगर, लखनऊ
6. Considering the contents of the said letter, the Court had made this letter read to Sri Saurabh Raj Srivastava on 13.11.2024 and asked him as to whether he was still inclined to press the appeal when his client is in habit of raising allegations against her counsel. Sri Srivastava submitted that his client is present in the Court and has instructed him to argue the matter.
7. Now the Court reproduces proceedings held in this appeal w.e.f. 13.02.2024 onwards as under:-
"Shri Sanjay Kumar Yadav, Advocate has put in appearance on behalf of appellants by filing Vakalatnama, which is taken on record.
He seeks adjournment for today.
List on 19.2.2024 at 2 P.M. showing the name of Shri Sanjay Kumar Yadav as counsel for the appellants.
Order Date :- 13.2.2024"
"Learned counsel for the appellant seeks adjournment for today.
List on 26.02.2024 at 2.00 P.M. This order has been passed in the presence of Sri Sanjay Goswami. learned counsel for the respondents.
Order Date :- 19.2.2024"
"Learned counsel for the appellant seeks adjournment for today.
As a last opportunity, list again on 04.03.2024 peremptorily at 2:00 p.m. showing the name of Sri Rahul Mishra as counsel for the appellant.
This order has been passed in the presence of Sri Sanjay Goswami, learned counsel for the respondents.
Order Date :- 26.2.2024"
"As prayed, list peremptorily on 11.3.2024 at 12:00 noon.
Order Date :- 4.3.2024 "
"Heard Sri Rahul Mishra, learned Advocate holding brief of Sri Sanjay Kumar Yadav, learned counsel for the appellants.
List on 13th March, 2024 at 03:00 P.M. for further hearing.
Order Date :- 11.3.2024"
"Learned counsel for the appellant seeks adjournment for today.
List again on 21.03.2024 at 03:00 P.M. Order Date :- 13.3.2024"
"Learned counsel for the appellant seeks adjournment for today.
List again on 08.04.2024 at 03:00 P.M. Order Date :- 21.3.2024"
"Sri Saurabh Raj Srivastava, Advocate has put in appearance on behalf of appellants by filing his Vakalatnama, which is taken on record.
Learned counsel for the appellant seeks adjournment for today.
Learned counsel for the respondents submits that for the last two months several adjournments have been sought on behalf of appellants.
List on 10.04.2024 at 03:00 P.M. showing the name of Sri Saurabh Raj Srivastava as counsel for the appellants.
However, it is made clear that on the next date fixed, the case shall not be adjournment on any ground, whatsoever.
Order Date :- 8.4.2024"
"Heard Sri Saurabh Raj Srivastava, learned counsel for the appellant.
List again on 15.4.2024 at 03:00 P.M. for further hearing.
Order Date :- 10.4.2024"
"As prayed by Sri Saurabh Raj Srivastava, learned counsel for the appellants, list again on 19.04.2024 at 02:00 P.M. for further hearing.
Order Date :- 15.4.2024"
"On the joint request of learned counsel for the parties, list again on 29.4.2024 at 02:00 P.M. Order Date :- 19.4.2024"
"Learned counsel for the appellants seeks adjournment for today.
List again on 03.05.2024 at 02:00 P.M., peremptorily.
It is made clear that the case will not be adjourned on that day at any cost.
Order Date :- 29.4.2024"
"As prayed, list on 10.05.2024 at 02:00 P.M. Order Date :- 3.5.2024"
"List on Monday, i.e., 13.05.2024 at 03:00 p.m. for further hearing.
Order Date :- 10.5.2024"
"As prayed, list on 16.05.2024 at 03:00 P.M. for further hearing.
Order Date :- 13.5.2024"
"As prayed by learned counsel for appellants, list on 17.5.2024 at 3:00 P.M. Order Date :- 16.5.2024"
"As prayed, list on 21.05.2024 at 12:00 noon for further hearing.
Order Date :- 17.5.2024"
"Learned counsel for the appellants again seeks adjournment.
List on 8.7.2024 before appropriate Bench.
This appeal shall not be treated as tied up or part-heard to this Bench.
"Order Date :- 21.5.2024 "Civil Misc. (Expedite) Application No. 34 of 2024 It is stated in para 11 of the affidavit that appellant no. 1 is aged about 74 years and the respondent no. 1 is aged about 67 years, as such, both the parties are Senior Citizens.
List on 06.08.2024 with previous papers under the head of "Senior Citizen".
The application is disposed of.
Order Date :- 25.7.2024"
"As prayed, list on 06.09.2024 in top ten cases of the cause list.
Order Date :- 13.8.2024"
"As prayed, list this case on 23.9.2024 in top twenty cases.
Order Date :- 6.9.2024"
"1. The appeal is ripe for final hearing.
2. As jointly prayed by the learned counsel for the parties, list peremptorily on 13.11.2024.
Order Date :- 22.10.2024"
"1. Heard Sri Saurabh Raj Srivastava, learned counsel for the plaintiff-appellants and Sri Sanjay Goswami, learned counsel for the respondent no.1.
2. Arguments are continuing.
3. During course of the argument, Sri Sanjay Goswami, learned Counsel for the respondent no.1 has filed a summary of proceedings giving rise to the present appeal, the same is taken on record.
4. List for further hearing on 21.11.2024 at 02:00 P.M. Order Date :- 13.11.2024"
8. A bare perusal of the afore quoted orders would show that Sri Sanjay Kumar Yadav filed his Vakalatnama on 13.02.2024 for the appellants and sought adjournment. Adjournment was again sought on 19.02.2024. Thereafter, 26.03.2024 was fixed and, while adjourning the matter on the request of counsel for the appellants, it was directed that name of Sri Rahul Mishra be shown as counsel for the appellant and the matter was listed peremptorily to be heard on 04.03.2024. Then, the case was fixed to be taken up peremptorily on 11.03.2024 at 12.00 noon. On that day, again adjournment was sought by Sri Rahul Mishra, Advocate. Then on 13.03.2024 and 21.03.2024 also, adjournment was sought and the Court was liberal in accepting the request. On 08.04.2024, Sri Saurabh Raj Srivastava, Advocate put in appearance on behalf of appellants by filing his Vakalatnama and sought adjournment. The Court, noticing the previous proceedings, fixed 10.04.2024 at 3.00 p.m. as the date and time for hearing, making it clear that the case shall not be adjourned on any ground. It appears that Sri Saurabh Raj Srivastava, learned counsel was heard on 10.04.2024 and the matter was posted for further hearing on 15.04.2024 at 3.00 p.m. On that day, adjournment was sought by Sri Saurabh Raj Srivastava. Then, on 19.04.2024 and 29.04.2024 also, the matter was adjourned on the request of learned counsel for the appellants. Further dates and times were fixed on many subsequent dates, as noted above and, ultimately, on 21.05.2024, the matter was released and directed to be listed before appropriate Bench, while entertaining request for adjournment made by learned counsel for the appellants. Then, in August and September, 2024 also, this Court directed listing of the matter in top ten cases and, ultimately, the matter came up before me for the first time on 22.10.2024, on which date, on the joint request of the learned counsel for the parties, I directed listing of this matter for hearing to be done peremptorily on 13.11.2024. On 13.11.2024, as aforesaid, Sri Saurabh Raj Srivastava, learned counsel for the appellants and Sri Sanjay Goswami, learned counsel for respondent no. 1 were heard at length.
9. This Court, therefore, observes that even if the statement made by Sri Gaurav Tiwari, Advocate today to the effect that only last evening Sri Rahul Sripat, learned Senior Counsel has been instructed, is accepted to be correct, the Court firmly believes that had Sri Rahul Sripat, learned senior advocate been apprised of conduct of the appellants in seeking adjournments and changing counsel one after another and then getting the matter argued at length on various dates by Sri Saurabh Raj Srivastava, Sri Rahul Sripat, a very seasoned and reputed learned senior counsel of this Court would have certainly refused to get engaged at this stage when matter was almost over. Therefore, engaging a subsequent counsel, namely, Sri Gaurav Tiwari, Advocate infers only one thing that the appellants are bent upon to commit abuse of process of law and want to run this Court according to their own wishes.
10. In view of the above, request made today is wholly ingenuine and amounts to committing abuse of process of law. The Court has no sympathy for a litigant who wants to take the Court for a ride. The Court could have severely penalised the appellants for their above noted conduct which includes writing a letter to the Hon'ble The Chief Justice of this Court and sending its copy by post to the Hon'ble Judge, who had earlier heard the matter, but refrains itself to do so exercising judicial restraint.
11. The Court, therefore, declines to hear any further oral submissions by a subsequently engaged counsel or learned Senior Counsel whose engagement is proposed on behalf of the appellants.
12. However, in the interest of justice liberty is granted to the appellants to furnish written submissions within two weeks after serving a copy of the same upon Sri Sanjay Goswami, learned counsel for respondent no. 1. Sri Sanjay Goswami may also furnish written submissions within one week, thereafter.
13. Judgment reserved."
20. In view of the above, the Court does not find any force in the appellants' submission that they were not provided opportunities to address the trial court on merits. Point No. 4 is, accordingly, decided against the appellants.
Point No. 5- Whether written statement filed on behalf of State Authorities was defective so as to exclude its defence from record?
21. As far as the submission that D.G.C. (Civil) was not competent to contest the proceedings in absence of authorization or that the written statement filed by the State defendants could not be treated as defence for want of signatures of the Collector, it is necessary to mention that defendant No.8 Satya Narain Srivastava was the Additional DIG Registration (Administration), U.P., who had passed the order dated 27.03.2004 and executed freehold deed dated 29.03.2004. He himself filed his written statement, paper No. 358-A, which was presented by Sri Surendra Kumar Srivastava, D.G.C. (Civil), Allahabad. Defendant Nos. 5, 6 and 7 were, respectively, A.D.M. (Nazul), Allahabad, State through Collector and Collector, Allahabad himself. A joint written statement was filed on their behalf, which was signed by A.D.M. (Nazul), Allahabad and was presented by Sri A. B. Shukla, Additional D.G.C. (Civil). Another WS, paper no. 357-A, was filed on behalf of the defendants no. 5, 6 and 7 which was signed by A.D.M. (Nazul), Allahabad and presented by Shri Surendra Kumar Sivastava, D.G.C. (Civil). The Court does not find any illegality or irregularity either in signing or swearing the written statements or their presentation through D.G.C. (Civil) or A.D.G.C. (Civil). There is nothing on record to demonstrate that D.G.C. (Civil) or A.D.G.C. (Civil) were not authorized to pursue the matter on behalf of the defendants. Similarly, authority of D.G.C. (Civil) or A.D.G.C. (Civil) to represent Collector/State before the civil court was also not under challenge before the trial court nor could it be as the matter pertains to conferment of freehold rights and A.D.M (Nazul) being the authority competent to execute the documents and, in fact, it was he who had executed the freehold deed, the Court finds that the arguments of the appellants disputing the authority of A.D.M. (Nazul) to sign the written statement do not hold any water and are, hereby, rejected. Apart from it, section 99 CPC clearly provides that no decree shall be reversed or substantially varied on account of any defect or irregularity in any proceeding in the suit, not affecting the merits of the case or the jurisdiction of the court. Therefore, even if the arguments advanced by the appellants on the aforesaid line are accepted for sake of acceptance, Section 99 CPC would statutorily dislodge the same and, therefore, the defence would be read for all purposes. Point No. 5 is, accordingly, decided against the appellants.
Point No. 2- What is the effect of compromise and receiving huge sums by the plaintiff-appellants and delivery of possession by them?
22. It stands borne out from record that PW-1 Radhika Garg, in her cross-examination, admitted acceptance of crores of rupees through three bank drafts in the year 2008 by their attorney Lal Chand Nirmal. The only DW Imtiyaz, in paragraph 11 of the affidavit, filed under Order 18 Rule 4 CPC, as examination-in-Chief, clearly stated that pending suit proceedings, the matter was compromised between the parties and the plaintiffs agreed to vacate the premises in lieu of a sum of Rs.2,75,00,000/-. Payment of sum of Rs.45,00,000/- Rs.40,00,000/- and Rs.45,00,000/- (Rs.1.30 crores) through three separate banker cheques and remaining sum in cash was also stated and in paragraph no.13, it was stated that the disputed property was vacated by the plaintiffs handing over its possession to the defendant no.1. Even in cross-examination, payment through banker cheques could not be dislodged and the only dispute raised was regarding receipt of cash payment of balance money. Be that as it may, it is admitted between the parties that heavy sums were received by the plaintiffs and in lieu thereof, they vacated the disputed property handing over possession to the defendant no.1, in whose favour freehold deed was executed. The Court may observe that the right to sue includes the right to continue to sue and developments that take place during the pendency of lis, if have material bearing on the cause of action originally existed in favour of the plaintiffs, can either vanish in toto or diminish based upon the nature of developments. In the present case, payment of money, settlement between the parties and handing over possession by the plaintiffs to the defendant no.1 being well established on record, the same have significant value towards adjudication of contentious issues between the parties. The plaintiffs compromised with Lal Chand Nirmal (acting on behalf of the defendant No. 1) and, admittedly, took an amount of Rs. 1,30,00,000/. They handed over peaceful possession of the property in question (under their tenancy) to Lal Chand Nirmal (Paras 7A and 7C of plaint). The plaintiffs, vide registered Power of Attorney dated 25.07.2008, appointed Lal Chand Nirmal as their Power of Attorney to withdraw all the suits pending between the parties (including the instant suit) in respect of the property in question. The Withdrawal Application dated 06.08.2008 was filed on behalf of the plaintiffs to withdraw the instant suit. All these facts stand well established on record to infer that the plaintiffs vacated the property after receiving money and all dealings took place with their consent and through validly authorized person by them. Therefore, they cannot take a U-turn and assail validity of acts done in that direction. Point No. 2 is, accordingly, decided against the appellants.
Point No. 1. Whether the freehold deed dated 29.03.2004 is valid ?
AND Point No. 3. Whether the plaintiff-appellants can succeed at the strength of agreement for sale dated 20.06.1976, nomination dated 12.11.1978 and Will dated 01.09.1983 ?
23. From the record, it stands established that the Unregistered Agreement to Sell dated 20.06.1976 of Saher Bano in favour of Mahesh Chandra Gupta was the genesis of the claim. Admittedly, original document was never produced before Court and only photocopy was filed by the plaintiffs which does not even bear signature of Saher Bano. Mahesh Chandra Gupta was never produced by the plaintiffs in evidence to prove its execution. Even otherwise, the lease had expired on 07.08.1960 much prior to agreement for sale.
24. In Commissioner of Income Tax Vs. Carlton Hotel Pvt. Ltd.,2017 SCC Online All 3871 (DB) =(2017) 399 ITR 611, it has been held by division bench of this court that after expiry of lease, if lessee continued in possession, he cannot ask for advantage of principle of holding over, recognized under Act, 1882, for the reason that his continued possession thereafter would become unauthorized, and in view of section 2 of Act, 1882, he shall not be protected by any provision of Act, 1882 and status of lessees after expiry of period of lease is that of "unauthorised occupants". Lease stands terminated by efflux of time after expiry of original period of lease. There is no automatic or temporary renewal. The Special Leave to Appeal (Civil) No. 28637 of 2017 Carlton Hotel Pvt. Ltd. Vs. Commissioner of Income Tax 1, Lucknow against the aforesaid decision was dismissed by Hon'ble Supreme Court vide order dated 06.11.2017.
25. The Court also finds that unregistered Nomination Agreement dated 12.11.1978 executed by Mahesh Chandra Gupta in favour of Uday Ram Garg only bears signatures of Mahesh Chandra Gupta who was never produced by the plaintiffs in evidence. Nomination Agreement was not even referred to in the injunction Suit No. 231 of 1978. The Nomination Agreement either created/purported to create a third party right in respect of the immovable property or no right was created through the same. If right was created/purported to be created in respect of immovable property, then it was compulsorily registrable under Section 17(1)(b) of Registration Act, 1908 and, in absence of registration, the same could not be received in evidence. If no right was created/purported to be created in respect of immovable property, then Suit No. 274 of 2004 itself was bound to fail. No Suit was filed by Mahesh Chandra Gupta and/or plaintiffs against defendant Nos. 2, 3 and 4 for specific performance of the Agreement to Sell dated 20.06.1976 after expiry of 6 months period from the execution of the Lease Deed dated 07.07.1991. There was no privity of contract was between the plaintiffs and the defendants. Admittedly, the plaintiffs claim right through Mahesh Chandra Gupta without arraying him a party to suit though he was a necessary party. It is settled law that in the absence of a necessary party the relief(s) prayed in the suit cannot be granted and the suit would fail.
26. PW-1, in her cross examination also admitted that only photostat copy of the alleged agreement dated 20.06.1976 was filed on record and not its original and her statement was that it was handed over to Mr. O.N. Mishra, Advocate, who did not return the same to the plaintiffs. The photostat copy of the agreement appended at page 585 of the appellants' paper book (Compilation-2) makes it clear that it contained signatures of Mr. Mahesh Chandra Gupta, the alleged executant, and Mr. K B. Garg, Advocate, the alleged witness, and it was neither signed nor thumb-impressed by Smt. Saher Bano, whose name with full particulars was printed in the same manner in which names of Mr. Gupta and Mr. Garg were printed. During the course of arguments in this Appeal, Sri Saurabh Raj Srivastava, Advocate also referred to the said document and admitted that it was a photostat copy not bearing signatures of Smt. Saher Bano. Therefore, the alleged agreement cannot be said to be lawfully executed or proved as a photostat copy and, that too, unsigned and unproved, does not fall in the category of "evidence" as per the provisions of Indian Evidence Act, 1872.
27. As far as the submission that the freehold deed was executed in violation of the injunction order dated 19.07.2003 or decree dated 28.02.1979, it is found that the decree dated 28.02.1979 passed in Original Suit No. 231 of 1978 was not binding against the State of U.P., which was not a party to the suit. Even otherwise, the said decree was set aside by order dated 31.03.2009 passed in Original Suit No. 785 of 2001, which attained finality. As far as the injunction order dated 19.07.2003 passed in Original Suit No. 388 of 2003 is concerned, the same could not operate against the State of U.P. or its officers, who were not parties to the said suit. Further, the operative portion of the said temporary injunction order reads as under:-
"अतः प्रतिवादीगण को नियत तिथि तक विवादित संपत्ति को वादीगण के अलावा किसी अन्य को बेचने व किसी प्रकार भार आरोपित एवं फ्रीहोल्ड करने से अस्थायी रूप से निषेधित किया जाता है।"
28. It is, therefore, apparent that the injunction order was as regards "not to sell; not to create charge; and not to freehold". The defendant no.1 neither sold the property nor created charge therein nor executed freehold deed. Hence, the injunction was meaningless as far as its binding nature upon the defendant no.1 is concerned. The court cannot read the injunction order in the manner other than what it reads. Even otherwise, when the plaintiffs sought impleadment of the State of U.P. as a party in Original Suit No. 388 of 2003, the trial court itself rejected the impleadment application on 29.03.2004 observing that the injunction order dated 19.07.2003 was not binding against the State of U.P. and impleading the State after passing of the order dated 26.02.2004 by the High Court in Civil Misc. Writ Petition No.7998 of 2004 would amount to interference in the order passed by the High Court. It is also significant to observe that the freehold deed dated 29.03.2004 was executed by the State of U.P. in favour of the defendant no.1 in furtherance of the order 27.03.2004 that was passed by the A.D.M. (Nazul), Allahabad in compliance of the order dated 26.02.2004 passed by this Court in Civil Misc. Writ Petition No.7998 of 2004. Not only the temporary injunction order but also the order passed by the writ court has been taken note of by the A.D.M. (Nazul) in his order dated 27.03.2004 where the factum of concealment of various proceedings by the plaintiffs has also been recorded. A.D.M. (Nazul) also recorded that the plaintiffs' prayer to confer freehold rights in their favour does not have any force as no such application was ever filed by them and plaintiffs' prayer to reject defendant no.1's prayer to get freehold rights was turned down by the officer by referring to the nomination made by the lessee in favour of defendant no.1 and considering the grounds raised by the plaintiffs based upon the agreement dated 20.06.1976 and nomination dated 12.11.1978.
29. It is also found that a statement was made on 30.03.2009 by Mahesh Chandra Gupta before the trail Court in Suit No. 785 of 2001 that he had never filed Suit No. 231 of 1978 and had no knowledge of the Order dated 28.02.1979. Injunction Order dated 28.02.1979 was a right in personam in favour of Mahesh Chandra Gupta. If at all anyone could claim rights based on injunction order dated 28.02.1979, it was only Mahesh Chandra Gupta who could have initiated any legal proceedings in respect of violation thereof. Mahesh Chandra Gupta did not file any Execution proceedings under Order 21 Rule 32 CPC for violation of Injunction Order dated 28.02.1979 against Defendant Nos. 2, 3 and 4/Javed Haider. Naved Haider and Tanvir Haider. In Kanwar Singh Saini v. High Court of Delhi, (2012) 4 SCC 307, it was held that any action done in violation of a permanent injunction order could be made subject matter of execution proceedings but no such execution proceedings were instituted in this case probably for the reason that challenge would have failed in view of State Government not being a party to the concerned suit proceedings and, hence, the decree would not bind it.
30. It is also found that the rights of Mahesh Chandra Gupta were not transferred in favour of Uday Ram Garg through unregistered Nomination Agreement dated 12.11.1978. Mahesh Chandra Gupta, vide affidavit dated 22.07.2003 before ADM (Nazul), Allahabad as recorded in Order dated 27.03.2004 of ADM (Nazul), Allahabad, did not object to the Nomination dated 05.11.2001 by lessees/Shri Javed Haider, Shri Naved Haider and Shri Tanvir Haider before DM, Allahabad to convert Nazul site into freehold in favour of Ms. Tabassum Ghazala. He denied having executed any agreement nominating Shri Uday Ram Garg and admitted that he has no right in the land in question, that he has not filed any suit nor in future will he file any suit in respect of the land in question and if any person claiming under him files any claim, then the same be considered as non-est.
31. It is also found that the permanent injunction order dated 28.02.1979 passed in Suit No. 231 of 1978 in respect of execution of freehold deed dated 29.03.2004 restrained defendants from selling the bungalow and lease hold rights in the site thereof to any body other than the plaintiff or his nominee. Injunction order dated 28.02.1979 was set aside vide order dated 31.03.2009 passed in Suit No. 785 of 2001. Vide order dated 26.02.2004 passed in Civil Misc. Writ Petition No. 7998 of 2004 filed by plaintiffs, this Court specifically directed ADM (Nazul), Allahabad to decide the representations of the plaintiffs (against the freehold application of the defendant No. 1). Injunction order dated 28.02.1979 was also considered by this Court. Additional District Magistrate (Nazul), Allahabad passed the order dated 27.03.2004 in compliance of the Order dated 26.02.2004 of this Court. Freehold deed dated 29.03.2004 was executed by the State of U.P. in favour of defendant No. 1 in furtherance of the order dated 27.03.2004. Further, Mr. SN. Srivastava, ADM (Nazul), Allahabad had executed the freehold deed as an authorized representative of the Governor of the State of U.P. and allegations challenging authority and competence of the said officer are found to hold no water.
32. Admittedly, the property in question was a Nazul land owned and managed by the State Government and the defendant Nos. 2, 3 and 4 were the lessees, having leasehold rights under the lease deed dated 07.07.1991 executed by the State Government. The freehold deed was executed by the State Government under the then existing freehold policy. There being no factual or legal impediment in execution of free hold deed by the State, it is held that the freehold deed dated 29.03.2004 was valid, effective and enforceable. The Court does not find any lack of competence in A.D.M's actions impugned in the suit and on merits also the findings recorded by him do not suffer from any perversity. Points No. 1 and 3 are, accordingly, decided against the appellants.
CONCLUSION
33. Consequently, this Court does not find any error in the impugned decision of the trial court. Accordingly, the appeal fails and is DISMISSED, however, without imposing any costs.
Order Date :- 20.1.2025 AKShukla/-
(Kshitij Shailendra, J.)