Delhi District Court
Smt. Hazra Begum vs Kallan Khan on 15 July, 2011
IN THE COURT OF SH. ANAND SWAROOP
AGGARWAL:SENIOR CIVIL JUDGECUMRC (EAST):
KKD COURTS : DELHI
RCA No. 05/10
Unique Case Identification No: 02402C 0103112010
Smt. Hazra Begum
W/o Sh. Kallan Khan,
Resident of 1361, Gali No. 18
Nehru Vihar Mustafabad,
Delhi - 110094 .........Appellant / Plaintiff
Versus
1. Kallan Khan
S/o Sh. Imamuddin
2. Jamila Begum
W/o Kallan Khan
3. Habib Care of Ilyas Pradhan
33 Futa Road, New Mustafabad
Bhagirathi Vihar II, Delhi 110094
(Defendant No. 1 to 3 care of M/s. Noor Mohd. Fabricators,
8/94, Nehru Gali, 60 futa Road Vishwas Nagar, Shahdara,
Delhi 110032
4. Illyas Pradhan
33, Futa Road, New Mustafabad
Bhagirathi Vihar II, Delhi - 94
(Deleted on 10/2/2005 by ld. trial court)
Anand Swaroop Aggarwal
SCJCumRC:East, Delhi
RCA No. 05/10 Page 1/33
5. Afsar Ali
25, Foota Road, Mustafabad
Delhi - 94 (Deleted on 10/2/2005 by ld. trial court)
6. Yaseen
25, Foota Road, Mustafabad,
Delhi (Deleted on 10/2/2005 by ld. trial court)
7. Sh. Sher Mohd.
Gali No. 5, Old Mustafabad,
Delhi (Deleted on 10/2/2005 by ld. trial court)
...........Respondents/Defendants
Date of Institution : 13/04/2010
Date of Decision : 15/07/2011
Final Order : Appeal Dismissed.
APPEAL AGAINST THE JUDGMENT AND DECREE DATED
03/04/2010 PASSED BY THE COURT OF SH. PULASTYA
PRAMACHALA CCJ/ARC(EAST)MM KARKARDOOMA COURT,
DELHI IN SUIT NO. 777/07, TITLED AS HAZRA BEGUM VERSUS
KALLAN KHAN AND OTHERS WHEREBY HE DISMISSED THE
SUIT OF THE APPELLANT AND ALLOWED THE COUNTER
CLAIM OF THE RESPONDENTS 1 TO 3.
J U D G M E N T
1. This Regular Civil Appeal has been preferred appeal against judgment/decree dated 03/04/2010 passed by Sh. Pulastaya Parmachala, Ld. CCJARC, Karkardooma Courts, East,Delhi (herein Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 2/33 after referred to as "Ld. Trial Court") in the Civil Suit no. 777/2007 whereby suit of plaintiff/appellant praying for Decree of Permanent Injunction in favour of plaintiff and against defendants thereby restraining the defendants, their men, agents etc from selling, transferring, mortgaging or otherwise disposing off suit property measuring 120 sq yards having two rooms, with boundary walls at Gali No. 9, 33foota road, Khasra no. 1/3/1, Bhagirathi Vihar, Phase II, Delhi 94 (hereinafter referred to as "suit property") was dismissed and counter claim of defendants / respondents no. 3 was allowed to restraining the plaintiff from interfering in possession of defendant no. 3 over the suit property in any manner.
2. Notice of the appeal was issued to respondents by Ld Predecessor of this court. Sh. R.P. Bhardwaj, Advocate appeared for respondents/defendants no. 1 & 2. Sh. Moinuddin, Advocate appeared for defendant/respondent no. 3. Defendant no. 4 to 7 stood deleted from the array of defendants vide order dated 10/2/2005 passed by ld. trial court on the statement of ld. counsel for plaintiff/ appellant.
3. I have heard Sh. S.D. Ansari, Advocate for Appellant and Sh.
Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 3/33 Moinuddin, Advocate for respondent no. 3. Written submissions have been filed on behalf of respondents no. 1 and 2. I have gone through the material available on judicial file very carefully.
4. CASE OF PLAINTIFF Plaintiff/appellant had filed suit against defendants / respondents with a prayer to pass a decree for permanent injunction in favour of plaintiff and against defendants thereby restraining the defendants, their men, agents etc from selling, transferring, mortgaging or otherwise disposing off suit property measuring 120 sq yards having two rooms with boundary walls at Gali No. 9, 33foota road, Khasra no. 1/3/1, Bhagirathi Vihar, Phase II, Delhi 94. In brief case of plaintiff is that plaintiff is lawful owner of property bearing no. (measuring ?) 60 sq yards. plus 60 sq. yards in total 120 sq. yards vide GPA,agreement to sell, receipt, registered Will dated 27/4/1992 which was purchased from Naseem Ahmed S/o Sh. Maqbool Ahmed, resident of gali no. 22, Mustafabad, Delhi 110094, out of Khasra no. 1/3/1 situated at 33 futa road, gali no. 9, Bhagirthi ViharPhaseII, Delhi 110094 as shown in red color in the site plan wherein two rooms, one temporary latrine and one hand pump in unworkable Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 4/33 condition are existing. As per plaintiff, plaintiff was married to defendant no. 1 since long back and out of the said wedlock, children namely Noor Jahan, Naseema (now both married) Noor Mohd, Naseem, Ajmeri, Imrana, Nawab, Heena, Nargis, Baby Humera (all minors) were born. As alleged, in the course of employment one lady namely Jamila Begum called her three children born from former husband somewhere from Orissa at factory premises of M/s Noor Mohd. Fabricators, at Shahdara, Delhi and then all the defendants/ respondents in collusion with each other made a plan to kick out plaintiff from all the premises including suit property, whereas plaintiff has already disowned the defendant no. 1 from her all properties vide publication dated 27/9/2002. Plaintiff has further alleged that defendants started harassing, insulting, torturing plaintiff and her minor children from each corner with the warning to murder her sons/daughters and plaintiff only with a view to grab entire properties which were owned by plaintiff and now it has come clearly in knowledge of plaintiff that defendant/respondent no. 1 (her husband) has contracted marriage with Jamila Begum (defendant/ respondent no. 2). Plaintiff has further alleged that intention of Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 5/33 defendant/respondent no. 1 has changed completely and he, with malafide intention and having secret planning and also by making forged and fabricated documents in respect of suit property as the thumb impression of plaintiff had been obtained by way of fraud and cheating against which complaint was duly sent to police station Gokalpuri, Delhi dated 17/6/2002, has been trying to sell, transfer, mortgage, or otherwise dispose of the suit property, for which defendant/respondent no. 1 has no right, title or interest and now defendants have planned to sell/dispose off suit property illegally and forcibly. As per plaintiff, defendants/respondents and their associates came to suit premises/property firstly on 7/11/2002 when they threatened to sell and dispose off the suit premises in a day or two and again on 09/11/2002 at about 9:00 p.am (?) whereby they threatened that plaintiff is having no right, title or interest in suit property cannot stop them from doing anything as defendant/respondent no.1 has already disowned her from suit property by his publication dated 21/9/2002 against which the matter was reported to the police on 8/11/2002. Hence, as alleged, plaintiff has apprehension that defendants in collusion with each other may sell or otherwise dispose Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 6/33 of suit property and also on 09/11/2004 they all came to suit premises/property and wanted to grab and transfer by making forged documents hence the matter was reported to police on 07/11/2002, 09/11/2002 and 10/11/2004 respectively. In this background plaintiff has prayed for above mentioned decree for Permanent Injunction.
5. DEFENDANT'S STAND Defendant no. 1 and 2 have filed common WS. In their common WS defendant no. 1 and 2 have taken preliminary objections to the effect that suit of plaintiff is not maintainable since plaintiff has concealed material facts with malafide intentions with the sole purpose of harassment of defendant no. 1 & 2 whereas defendant no. 1 & 2 have nothing to do with property in question since these defendants are neither the owner of suit property nor they are in possession of the suit property and that plaintiff has not come with clean hands before this court.
On merits, as per defendants/respondents no. 1 and 2, plaintiff has already sold the total property measuring total 120 sq. yards to Smt. Jameela Begum, defendant/respondent no. 2 vide GPA, agreement to sell and deed of Will dated 15/04/2002. As alleged, Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 7/33 plaintiff/appellant appeared before Sub Registrar and executed GPA in favour of Smt. Jameela on 15/04/2002 and Smt. Jameela has already sold property in question to Mohd. Habib S/o Sh. Immamuddin R/o D325, Gali No. 1, Noor Ilahi, Mauzpur, Delhi - 53 on 05/11/2002 vide GPA and other relevant documents and handed over the vacant physical possession of suit property to Mohd. Habib on 5/11/2002 itself. As per defendants/respondents no. 1 and 2, plaintiff/appellant is not faithful and obedient wife of defendant/ respondent no. 1 therefore defendant/respondent no. 1 has disowned plaintiff/appellant by way of publication dated 27/09/2002. As alleged, appellant/plaintiff is a crucial (cruel ?) cheater who has always been in habit of cheating her husband in many ways and occasions, therefore, defendant/respondent no. 1 has sought divorce from plaintiff by way of Shariyat. As per defendants/respondents no. 1 and 2, plaintiff/appellant is no more owner of property in question after 15/04/2002 when she executed relevant documents before competent authority and handed over vacant and peaceful possession to Smt. Jameela but now Jameela is also not owner of property in question because she has sold the property in question to Mohd.
Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 8/33 Habib on 05/11/2002 by way of executing relevant documents and handed over vacant and peaceful possession to Mohd. Habib on 05/11/2002 itself. In their WS defendant no. 1 and 2 have denied all the material averments made by plaintiff/appellant which constituted alleged cause of action for present suit.
Plaintiff has filed replication to WS of defendant no. 1 and 2 wherein stand taken by defendant no. 1 and 2 in their WS has been denied and averments made in the plaint has been reaffirmed. As per plaintiff, plaintiff is owner in possession of suit property and hence if any sale has been made by defendant no. 1 and 2, the same would be illegal, nonest and void in the eyes of law as defendant/respondent no. 1 as per his version has disowned plaintiff only on 27/9/2002 whereas plaintiff/appellant has disowned defendant/respondent no. 1 on 21/9/2002. As alleged, defendant/respondent no. 1 and 2 have prepared false documents mentioning the Khasra No. 1/3 while executing documents before SubRegistrar, Delhi but in fact suit property which was purchased by plaintiff/appellant from one Naseem Ahmad was out of Khasra no. 1/3/1 and not 1/3. As alleged, possession of suit property is still with the plaintiff/appellant and Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 9/33 signature as well as thumb impression were obtained by defendant/ respondent no.1 & 2 by way of fraud and cheating.
6. Defendant/respondent no. 3 filed separate WS alongwith Counter Claim over the suit property. As per defendant no. 3, property in question was in the name of one Naseem Ahmad S/o Maqbul Ahamed who sold the same on 27/04/1992 which was got purchased by one Kallan in the name of his wife Smt. Hazra Begum (plaintiff/appellant) to whom possession was handed over and related documents were also handed over which were executed in the name of Smt. Hazra Begum. On 15/4/2002, as alleged, Smt. Hazra Begum executed the GPA, Agreement, Will etc. of the said plot in name of Smt. Jamila Begum, second wife of Kallan and possession was handed over to Smt. Jamila Begum. All related documents were also handed over to Smt. Jamila Begum and documents i.e GPA, agreement to sale, Will which were executed and duly registered before subregistrar on 15/4/2002 on behalf of the GPA executed on 27/4/1992 in favour of Smt. Hazra Begum by Sh. Naseem Ahamed. As alleged, Smt. Jamila Begum as well as Sh. Kallan also sold said plot on 05/11/2002 and same was purchased by defendant no. 3 in his Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 10/33 name and relevant documents (i.e GPA, agreement to sale, affidavit, possession letter and receipt of Rs. 2,95,000/) were executed in favour of defendant/respondent no. 3 and possession of said plot was handed over to defendant/respondent no. 3 on 05/11/2002. The entire chain of the previous documents was, as alleged, also handed over to defendant no. 3 and since 05/11/2002 defendant/respondent no. 3 is in possession and lawful occupation of disputed plot (i.e. property no. A, 187 Gali No. 9, Bhagirathi Vihar, Phase II, Delhi - 94) which is shown (bounded ?) as under: East : Plot of others West : Road 20 ft. vide North : Road 30 ft vide South : Plot of others As per defendant/respondent no. 3 suit is not maintainable because plaintiff is not in possession and is having no concern with plot in question. As per defendant/respondent no. 3 all the defendants/ respondents except defendant no.3 are in collusion with plaintiff/appellant and are having no concern with defendant no. 3 but to conceal the fact they have been cited as defendants in false suit filed by plaintiff/appellant without having any concern because defendants are intending to make their false statement before the Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 11/33 court in favour of plaintiff/appellant. As per defendant/respondent no. 3, plaintiff has not come with clean hands before the court and has concealed all the true and material facts and has also not disclosed regarding transfer of property in the name of Smt. Jamila Begum. Further defendant/respondent no. 3 has alleged that after purchase of plot in question on 05/11/2002 respondent/defendant no. 3 started construction over the said plot and constructed the wall surroundings the plot upto the height of 9 ft alongwith a shop and thereafter with the collusion of Rajaq Malik, Asgar Ansari, Sherkhan Malik, Quazi Iqram, Anis, Nadeem and Noor Mohammed plaintiff made a false complaint against defendant/respondent no. 3 before the local police of P.S. Gokal Puri who directed the defendant/resondent no. 3 not to raise any construction and thereafter, plaintiff has filed the present suit without any cause of action. Defendant/respondent no. 3 has alleged that defendant no. 3 has every right over the suit property and is in possession and lawful occupation who has constructed boundary walls and shop upto the height of 9 ft. Defendant/respondent no. 3 has also denied all averments made by plaintiff/appellant in plaint constituting the alleged cause of action in favour of plaintiff.
Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 12/33 Defendant/respondent No.3 has made a counter claim praying for a decree for permanent injunction against other defendants as well as plaintiff/appellant restraining them from making any intervention in the peaceful possession of defendant/respondent no.3 over the suit property and in raising of construction over the suit property by defendant/respondent no.3.
Plaintiff has filed replication to WS of defendant no. 3 wherein the stand taken by defendant no. 3 has been denied and averments made in the plaint have been reaffirmed. In the replication plaintiff has alleged that on 15/4/2002 plaintiff was compelled to sign and put thumb impression by way of fraud and thereafter, execution of certain documents by defendant/respondent no. 2 in favour of defendant/ respondent no. 3 is/was quite illegal and unjust vide dated 05/11/2002 for consideration of Rs. 2,95,000/ as since the date of execution the defendants were not the legal owners or in possession of suit property. As per plaintiff/appellant, she has already cancelled all the executed documents which were done by defendant/respondent no.1 & 2 by playing fraud and cheating and the same was done before the SubRegistrar Delhi. As per plaintiff/appellant documents which Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 13/33 defendant no. 3 has with him are forged documents created by fraud and cheating. Further, as alleged, plaintiff/appellant has already filed a criminal complaint u/sec 468/471/420 IPC against defenant no. 1,2 and 3 and other two persons namely Islamuddin and Habib Khan as they have been shown as witnesses in the forged documents and the same is pending in the court of Sh. Rakesh Kumar, Ld. MM, Karkardooma Courts, Delhi.
7. Defendant no. 4 has also filed WS and in his WS defendant no. 4 has also taken certain preliminary objections such as that plaintiff has not approached the court with the clean hands; that defendant no. 4 has no relation/interest with suit property and that suit has been filed without any cause of action. In his WS defendant no. 4 has denied averments made by plaintiff in plaint and stand of defendant/ respondent no. 4 is that defendant/respondent no. 4 has no interest in property of plaintiff or with property of other defendants. As per defendant/respondent no. 4 he is respectable person of the society and to harass and blackmail him plaintiff/appellant has filed this suit. At last defendant/respondent no. 4 has prayed for dismissal of the suit with cost. Further he has prayed that proceedings against defendant/ Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 14/33 respondent no. 4 may be dropped.
8. Vide order dated 10/02/2005 defendants no. 4 to 7 were deleted.
9. INTERIM ORDER Vide order dated 7/7/2005 Ld. Predecessor of this court had dismissed the application moved by plaintiff u/o 39 rule 1 & 2 CPC but application moved by defendant no. 3 was partly allowed and the plaintiff was restrained from interfering in the peaceful possession of defendant no. 3 till disposal of the suit.
10. On 20/09/2005 ld. trial court framed the following issues:
1. Whether the suit of the plaintiff is maintainable in the present form ? OPD
2. Whether the plaintiff has concealed the true and material facts from the court ? OPD
3. Whether the plaintiff has no locus standi to file the present suit ? OPD
4. Whether the defendant no. 3 is entitled for the relief of permanent injunction as prayed for in the counter claim ? OPD Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 15/33
5. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ? OPP
6. Relief.
11. To substantiate her case on the judicial file plaintiff has examined herself in the witness box as PW1 Smt. Hazra Begum. PE was closed on 07/11/2005. On the other hand, defendant no.3 himself appeared in the witness box as D3W1 Mohd. Habib and has examined D3W2 Sanjay Kr., D3W3 Smt. Jamila Begum (who is defendant/ respondent no.2) and D3W4 Mr. Nasim Ahmed.
12. Ld. counsel for plaintiff/appellant has submitted that there is no possibility of plaintiff/appellant (Ist wife of defendant/respondent no.1) selling the suit property to 2nd wife of defendant/respondent no.1 namely defendant/respondent no.2 and thus documents allegedly executed by plaintiff/appellants in favour of defendant/respondent no.2 can be said to be forged/fabricated documents. Also ld. counsel for appellant/plaintiff has submitted that in a factual position when both the parties refer to the same property, failure on the part of one party/plaintiff/appellant to give complete description of the suit property including the boundaries surrounding Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 16/33 the suit property is to no consequence. It is submitted that plaintiff/appellant can be said to have suppressed material facts from the Court when such suppression is with the intention of getting an unlawful/unjustified gain over the defendant. It is submitted that in the case in hand no case for suppression of material facts regarding identity of suit property is made out and finding of ld. trial court in this regard is not sustainable.
It is submitted that admittedly plaintiff/appellant is the original owner of suit property from where defendant no.2 through forged and fabricated documents is claiming have acquired right in suit property and defendant/respondent no.3 is claiming to have purchased the suit property form defendant/respondent no.2 unlawfully and illegally.
It is submitted that case law relied upon by ld. trial court reported as Padma Bewa Vs. Krupa Sindhu AIR 1986 Orissa 97 is applicable when plaintiff in the suit prays for declaration regarding a document having been get executed through fraud etc. and in this case plaintiff/appellant has not sought any such relief and only relief prayed for plaintiff/appellant is a decree for permanent injunction.
Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 17/33 Further it is submitted that case law reported as Anathula Sudhakar Vs. P. Buchi Reddy relied upon by ld. trial court is applicable when nature of documents is known to plaintiff/appellant and in the absence of such knowledge on the part of plaintiff/appellant, plaintiff/ appellant possibly cannot pray for declaration/cancellation of documents. Also ld. counsel for appellant/plaintiff has submitted that he fails to understand as to from where in para. 23 of judgment ld. trial court has attributed the "knowledge" on the part of plaintiff/ appellant referred to in said paragraph. It is submitted that title document means the Sale Deed and by reason of documents relied upon by defendant/respondent no.2 and 3 no title in law passed to these defendants/respondents. Further it is submitted that attorney stands already cancelled by plaintiff/appellant. It is further submitted that without payment of stamp duty and registration of documents no ownership can be said to have been passed to defendant/respondent no.2 & 3. As submitted ld. trail court has not referred to the exhibited documents and to the evidence lead in this case. Lastly it is submitted that plaintiff is in actual & physical possession of the suit property.
13. Written submissions have been filed on behalf of Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 18/33 defendant/ respondent no.1 & 2.
14. Ld. counsel for defendant/respondent no.3 has submitted that property as mentioned in documents executed in favour plaintiff and documents executed in favour of respondent no.2 is one and the same and plaintiff/ appellant stated that properties in Khasra No.1/3/1 and in khasra no. 1/3 are different. Also it is submitted that plaintiff has not filed any site plan and has not given number and address of the suit property. Further it is submitted that plaintiff/appellant in her crossexamination has admitted execution of documents in favour of defendant/respondent no.2. Also ld. counsel for respondent/defendant no.3 has submitted that defendant no.3 could not have been impleaded as a party to the suit unless there were documents in favour of defendant/respondent no.3 executed by defendant/respondent no.2. Ld. counsel has further argued that admittedly plaintiff/appellant had visited the office of SubRegistrar and fraud is not possible before SubRegistrar. Further ld. counsel for defendant/respondent no.3 has submitted that mere suit injunction as filed is not maintainable. Also ld. counsel for defendant/respondent no.3 has submitted that even today GPA, Agreement to Sell and Nill are accepted as valid Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 19/33 documents for transfer of interest in immoveable property and an agreement to Sell does not require compulsory registration. Ld. counsel has referred to section 202 of Indian Contract Act and submitted that parties are bound by their act and once interest has been created for consideration in favour of another party, vendor is restrained from cancelling the documents. Also ld. counsel for defendant/respondent no.3 has referred to provisions of explanation and illustration to section 17 of Registration Act and proviso to section 49 of Registration Act.
Further it is submitted that nature of documents executed in favour of plaintiff/appellant and defendant/respondent no.3 is the same and even the plaintiff/appellant is not having a Sale Deed in her favour. Further it is submitted that documents executed in favour of plaintiff/appellant have not been proved. As submitted sit plan has not been proved. Further it has been pointed out that residential address of plaintiff/appellant as mentioned in plaint is different from the suit property. Also it is submitted that as per plaintiff/appellant cause of action, action arose firstly on 7/11/2002 and there is no explanation as to why suit was not filed in the year 2002. Further it is submitted that Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 20/33 in the documents executed in favour of defendant/respondent no.2 there is a clerical mistake in as much as khasra no. was not typed as 1/3/1 and only the main khasra no. 1/3 has been typed.
Ld. counsel for defendant/respondent no.3 has relied upon following case laws :
(i) Bansi Dhar & Ors. Vs. Sampat Kumar Singh & Ors., AIR 1927 Allahabad 287 (ii) Harbans Singh Vs. Shanti Devi, 1977 Rajdhani Law Reporter 487 (iii) Asha M. Jain Vs. The Canara Bank & Ors., 2002 (61) DRJ 101 (DB).
15. In rebuttal arguments it is submitted that if there is no title qua suit property in favour of plaintiff/appellant, then even the defendant no.1 & 2 or defendant/ respondent no.3 cannot be said to be having any title in the suit property in as much as defendants/respondents are driving their alleged right/title/interest in suit property through plaintiff/appellant. Further it is submitted that plaintiff/appellant is illiterate/ 'Jahil' lady.
16. Points for consideration in this appeal are findings of ld. trial court on various issues which have been decided against plaintiff/appellant and in favour of defendants / respondents no. 1 to Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 21/33
3. Finding of ld. trial court on each and every issue has been challenged by appellant/plaintiff. I have again gone through the judgment of ld. trial court keeping in view the rival submissions made by ld. counsel for parties and facts of this case as they arise on the basis of material available on judicial file. In my considered opinion the findings/observations of ld. trial court in the impugned judgment are well reasoned and none of such findings / observations is /are liable to be disturbed in appeal. Submissions of ld. counsel for appellant/plaintiff that ld. trial court has not discussed the evidence led by parties to the suit is without any substance and ld. trial court has discussed the evidence in the impugned judgment and has drawn proper conclusions. Mere fact that in the impugned judgment ld. trial court has not referred to document by their exhibit Mark is inconsequential in the facts and circumstances of this case. In this case plaintiff intended to rely upon documents exhibited as Ex.PW1/A to Ex. PW1/F but the same were deexhibited being photocopies. Hence no document has been proved on record by plaintiff. So far as other documents proved on judicial file are concerned documents have been referred at relevant places in the Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 22/33 impugned judgment. In the case in hand there is no dispute as to the existence /execution of documents but stand of plaintiff /appellant is that documents have been got executed from her in favour of defendant /respondent no.2 by playing fraud/cheating upon her and documents have been executed by defendant /respondent no. 2 in favour defendant /respondent no. 3 unlawfully and illegally. In such circumstances mere failure on the part of ld. trial court to mention/refer the documents by their exhibit number etc. is to no consequence.
My issuewise findings/observations on the findings of ld. trial court are as under: ISSUE NO.1 Whether the suit of the plaintiff is maintainable in the present form ? OPD ISSUE NO. 2 Whether the plaintiff has concealed the true and material facts from the court ? OPD ISSUE NO. 3 Whether the plaintiff has no locus standi to file the present suit ?
Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 23/33 OPD I shall be dealing with these issue under common discussion as has been done by ld. trial court. Ld. counsel counsel for appellant has challenged the observations made by ld. trial court to the effect that plaintiff has suppressed the true identity of suit property before the court. Ld. counsel for plaintiff/appellant has submitted that if both the parties refer to one and the same property then mere fact that one of the parties has not given complete description of suit property is to no consequence and in such circumstances it cannot be said that plaintiff/appellant has suppressed identity of suit property. This submissions made by ld. counsel for appellant/plaintiff suggest that as per plaintiff/appellant property as mentioned in the documents executed in favour of Smt. Hazara Begum by Mr. Naseem Ahmed and the property detailed in the papers in the name of defendant/respondent no. 2 is one and the same. But this is not the stand which has been taken by plaintiff/appellant in the course of the trial. In para. 5 of her affidavit Ex. PW1/A plaintiff has taken the stand that documents in the name of defendant/respondent no. 2 by mentioning the Khasra no. 1/3 pertain to some property other Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 24/33 than the property in the name of plaintiff/appellant wherein Khasra no. has been mentioned as 1/3/1. Similar is the stand taken by plaintiff in the course of cross examination of D3W1 Mr. Mohd. Habib in as much as D3W1 Mr. Mhod Habib has been made to deposed as follows: "It is wrong to suggest that I am not in possession of suit property that falls in Khasra no. 1/3/1 or this this property is in possession of Smt. Hazara Begum." Ld. trial court in the impugned judgment has specifically observed that main khasra no. 1/3 is same in the document of plaintiff and defendants and it has neither been pleaded that Khasra no. 1/3/1 and 1/3 are different Khasaras nor any such evidence has been produced on record. Further D3W3 Smt. Jamila Begum has deposed that she had purchased the suit property from Smt. Hazra Begum vide documents Ex. D3W1/12 to Ex. D3W1/15 and she had also taken possession of suit property from Smt. Hazra Begum. Further she has deposed that she sold the suit property to defendant/respondent no. 3 vide documents Ex. D3W1/16 to Ex. D3W1/21 and she had given possession of suit property to defendant /respondent no.3. Further D3W3 Smt. Jamila Begum has deposed that there may be some Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 25/33 clerical mistake in the documents executed in favour of defendant / respondent no. 2 (Smt. Jamila Begum herself). D3W3 Smt. Jamila Begum has deposed that the property sold by her to defendant/respondent no. 3 is the same property purchased by her from Smt. Hazara Begum. This discussion make the court to conclude that documents in the name of appellant /plaintiff and the documents in the name of defendant/respondent no. 2 refer to the one and the same property and submissions on the same lines have also been made by ld. counsel for appellant/plaintiff. Plaintiff/appellant has failed to prove on judicial file specific stand taken by her in her evidence that documents in the name of defendant/respondent no.2 and those in the name of plaintiff/appellant pertain to different properties. When stand taken by plaintiff with regard to some material averments has been found to be false, in such circumstances equitable discretionary relief of injunction cannot be granted in favour of plaintiff/appellant.
In the present case, plaintiff has taken the stand that documents were got exhibited in favour of defendant/respondent no. 2 by playing fraud & cheating upon her. These documents are Ex.
Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 26/33 D3W1/12 to Ex. D3W1/15. These documents were executed on 15/04/2002. PW1 Smt. Hazara Begum in her cross examination has admitted that she visited the office of Sub Registrar on 15/04/02. However further stand of appellant/plaintiff is that her thumb impression were taken by playing fraud on her. Ld. trial court has discarded this stand of the plaintiff/appellant on account of failure on the part of plaintiff/appellant to plead/prove as to how fraud was played upon her by defendant /respondent no.1. It is a settled proposition of law that a party pleading playing of fraud upon her is supposed to specifically plead the manner and the circumstances in / under which alleged fraud was played upon her. Also the party alleging fraud is supposed to prove the said fraud on file by leading evidence of the facts pleaded regarding the alleged fraud. In the present case, appellant /plaintiff has neither pleaded nor proved the facts and circumstances on the basis of which plaintiff/appellant is claiming that fraud has been played upon her while executing documents of suit property in favour of defendant/respondent no.2. Hence story as put forth by plaintiff/appellant regarding fraud being played upon her is not believeworthy. It is also to be kept in mind Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 27/33 that plaintiff PW1 Mrs. Hazara Begum in her crossexamination has deposed that "It is correct that my husband Sh. Kallan Khan purchased the suit property from Sh. Nasim on 27/04/92 in my name." In such circumstances plaintiff/appellant cannot be said to be at loss on account of alleged fraud played upon her. The submissions of ld. counsel for plaintiff/appellant that specific pleading regarding the fraud etc. are required only in suits wherein prayer has been made regarding cancellation of documents is found to be without any substance.
In the case in hand undisputedly there exist documents executed by appellant/plaintiff in the name of defendant/respondent no.2. Further as rightly observed by ld. trial court execution of document regarding suit property by defendant /respondent no. 2 in favour of defendant/respondent no. 3 was within the knowledge of plaintiff/appellant. Knowledge on the part of plaintiff/appellant regarding the execution of documents with regard the suit property by defendant/respondent no. 2 in favour of defendant/respondent no. 3 can be attributed keeping in view the manner in which D3W1 Mohd. Habib has been cross examined in as much D3W1 Mohd. Habib in his Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 28/33 cross examination has been made to depose as under: (i) "It is wrong to suggest that at the time when the talks to purchase suit property were going on I met Smt. Hazara Begum (ii) "It is wrong to suggest that Smt. Hazara Begum shown me the police complaint when I purchased the suit property." It is pertinent to note that no relief whatsoever has been sought in the present suit regarding those documents which exists in the name of defendant/respondent no.2 and defendant/respondent no.3 despite the fact that stand of the appellant/plaintiff with regard to documents in the name of defendant/respondent no. 2 is that those documents have been got executed from her by playing fraud upon her and defendant / respondent no. 2 has executed documents in favour of defendant/respondent no. 3 illegally/unlawfully. In the affidavit Ex.PW1/A there is no deposition that plaintiff/appellant has cancelled the documents executed in the name of defendant/respondent no.2. Nor the documents cancelling the abovesaid documents have been produced/proved on Judicial file. In this background to my mind suit of the plaintiff can be said to be not maintainable in the present form in as much as plaintiff must have sought relief regarding cancellation Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 29/33 of documents in the name of defendant/respondent no. 2 and defendant/respondent no.3. Moreso, when plaintiff/appellant has failed to substantiate on judicial file that plaintiff/appellant is not even in possession of suit property. It is pertinent to note that plaintiff's / appellant's residential address is different from address of the suit property. There is no averments in the plaint that plaintiff is in possession of suit property. Also there is no averment in plaint regarding who is actually in possession/occupation of suit property. However, in her cross examination plaintiff has deposed that she is in possession of suit property. For the first time in the cross examination of D3W1 Mr. Mohd. Habib it has been suggested that "It is wrong to suggest that Smt. Hazara Begum is in possession of the suit property and three tenants, namely, Shabir Ahmed (having tea shop), Zamir Ahmed ( having chicken shop ) and Other Azad (having his Biryani shop) are residing in the suit property". However there is no such pleadings in the plaint. Also it has not been so deposed by plaintiff/appellant in her affidavit Ex. PW1/A. For reasons best known to plaintiff/appellant none of abovesaid persons have been examined by plaintiff/appellant to show that abovesaid persons are Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 30/33 tenants of plaintiff/appellants. Also if abovesaid persons are adverseries to the interest of plaintiff/appellant in the suit property, no explanation has come on record from plaintiff/appellant as to why no action has been taken against them by plaintiff/appellant. To my mind ld. trial court as per discussion made in para. 26 of impugned judgment rightly concluded that defendant/respondent no. 3 can be assumed to be possession of suit property. From the fact that plaintiff/appellant has maintained silence regarding the alleged occupation of suit property by abovesaid persons namely Mr. Shabir Ahmed, Mr. Zahir Ahmed and Mr. Azad it can be concluded that plaintiff has suppressed material facts and has represented the facts as per her convenience as rightly concluded by ld. trial court. Further as plaintiff/appellant has failed to substantiate her stand regarding playing fraud upon her by defendant/respondent no. 2 in getting the documents related to suit property executed in favour of defendant/respondent no.2 it can be said that plaintiff has no locus standi to file the present suit. In view of this discussion it is concluded that issue no. 1,2 & 3 have been rightly and correctly decided by ld. trial court and the findings of ld. trial court does not Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 31/33 suffer from any illegality/infirmity.
ISSUE NO. 4 Whether the defendant no. 3 is entitled for the relief of permanent injunction as prayed for in the counter claim ? OPD It has already been observed that plaintiff /appellant has failed to substantiate her possession over the suit property and that defendant no. 3 can be assumed to be in possession of suit property, thus, to my mind no infirmity /illegality can be found in the findings of the ld. trial court regarding this issue. Absence of Sale Deed in favour of defendant/respondent no.2 & 3 is also inconsequential in as much as even sale in favour of plaintiff is a power of attorney sale. Also section 17(1A), Registration Act 1908 has no application in this case in as much as sale of suit property stands concluded between defendant /respondent no. 2 and defendant /respondent no.3 and also there is no dispute inter se defendant /respondent no. 2 and defendant /respondent no. 3 regarding sale of suit property. ISSUE NO. 5 Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ? OPP Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 32/33 In view of findings on issue no. 1 ,2 & 3 plaintiff is not entitled to relief of permanent injunction as prayed for. RELIEF Net result of above discussion is that present appeal merits dismissal being meritless. The impugned Judgment passed by ld. trial court is upheld. Parties to bear their own costs. Decree Sheet be prepared. Trial court record be sent back to trial court alongwith certified copy of this judgment. Appeal file be consigned to Record Room.
Pronounced in the open court on (Anand Swaroop Aggarwal) 15/07/2011 Sr. Civil JudgeCum RentController East, Karkardooma Courts, Shahdara, Delhi Anand Swaroop Aggarwal SCJCumRC:East, Delhi RCA No. 05/10 Page 33/33