Delhi High Court
Debabrata Ghosh & Ors. vs Uoi & Ors. on 7 December, 2009
Author: P.K.Bhasin
Bench: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 7th December, 2009
RFA 405 OF 1992
DEBABRATA GHOSH & ORS. ....Appellants
Through: Mr. Madan Bhatia, Sr. Advocate
with Mr. Ankit Jain, Advocate
Versus
UOI & ORS. ....Respondents
Through: Mr.Gaurav Duggal,Adv.for R-1.
Mr. Pawan Mathur, Adv. For R-2
Mr. Arun Mohan, Sr. Advocate with
Mr. Arvind Bhatt, Adv. for R-4
WITH
RFA 422 OF 1992
S.C. AHUJA ....Appellant
Through: Mr. Arun Mohan, Sr. Advocate with
Mr. Arvind Bhatt, Adv.
Versus
UOI & ORS. ....Respondents
Through : Mr. Gaurav Duggal, Adv. for R-1
Mr. Pawan Mathur, Adv. For R-2,
Mr. Madan Bhatia, Sr. Advocate
with Mr. Ankit Jain, Adv. for R-4 to
8
RFA Nos. 405/1992 & 422/1992 Page 1 of 43
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to see the judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the digest? Yes
JUDGMENT
P.K.BHASIN, J:
These appeals are against the judgment and decree dated 09.05.1992 passed by the learned Additional District Judge, Delhi in a suit for declaration and possession filed by the appellant in RFA No.422/92 (who shall hereinafter be referred to as „the plaintiff‟) against the appellants in RFA No.405/92 (who were defendants no.4-8 in the suit and shall hereinafter be referred to as „the defendants 4-8‟). The trial Court has partly decreed the plaintiff‟s suit inasmuch as only the relief of declaration was granted to him and not of decree of possession in respect of the suit property and so feeling dissatisfied the plaintiff filed an appeal. The defendant nos.4-8 filed their appeal against the grant of decree of declaration in favour of the plaintiff. Since both the appeals arose out of the same judgment of the trial Court and were heard also analogously the same are being disposed of by this common judgment.
2. The plaintiff‟s case may, first of all, be noticed. The plaintiff Subhash Chander Ahuja claimed to have purchased in Court auction, plot of land no. 58, Sunlight Colony, Ring Road, New Delhi(which was stated to be a part of Khasra Nos. 114 and 116 in Village Mohamadpur-Munirka, New Delhi and which area these days is stated to be known as „Bhikaji Cama Place‟). The said plot(hereinafter to be referred to as „the suit plot) belonged to one Mrs. Sushila RFA Nos. 405/1992 & 422/1992 Page 2 of 43 Ghosh, who was the mother of defendants 4-8. She had mortgaged the same with the erstwhile Sunlight of India Insurance Company Ltd., Asaf Ali Road, Delhi which later on was taken over by the Life Insurance Corporation of India(for short „the LIC‟). The mortgage was created by Smt. Sushila Ghosh to secure the payment of part of the sale consideration which she had to pay to the Sun Light Insurance Company from whom she had purchased the same. The Mortgage Deed was duly registered on September 14, 1953. Smt. Sushila Ghosh defaulted in payment of the amount due to the Insurance Company. The LIC, which had in the meanwhile taken over the Sun Light Insurance Company brought a suit for recovery of Rs. 6053.60 on August 11, 1964 against Smt. Sushila Ghosh. The said suit was decreed in favour of the LIC on 27/03/65 and in execution of that decree the suit land was put to auction. The plaintiff participated in the auction and being the highest bidder was sold the same and sale certificate dated 14th May, 1969(Ex.PW-1/1) was issued in his favour by the concerned Court. The plaintiff had placed on record copies of the pleadings in the suit of LIC against Smt. Ghosh as well as some record of the execution proceedings in respect of the decree passed in that suit. The plaintiff also claimed that the possession of the suit land was delivered to him by the Court bailiff and since then he was in possession thereof.
3. It is the case of the plaintiff that he subsequently came to know that the suit plot alongwith other plots of land in the same area was sought to be acquired by the Government in the year 1957 but the acquisition proceedings were challenged by Smt. Sushila Ghosh and other landowners whose plots were also sought to be acquired. In that litigation the acquisition proceedings were quashed by the civil court vide common judgment dated 29th April, 1960. That decision of the Civil Judge was upheld by the first appellate Court and also by the Circuit Bench at RFA Nos. 405/1992 & 422/1992 Page 3 of 43 Delhi of the Punjab High Court in second appeal (being RSA No.93-D/1962) vide judgment dated 25/01/66. The Government‟s Special Leave Petition was also dismissed by the Supreme Court on 08/11/68. The plaintiff claims that the government still wanted to acquire those lands and so it came out with a Scheme whereunder the landowners of Sunlight Colony whose lands were earlier sought to be acquired, were given an option to get plots in Masjid Moth area in exchange of their plots in Sun Light Colony on lease basis. The plaintiff on coming to know about that Scheme approached the Delhi Administration in the year 1971 for an alternative plot and thereafter he kept on corresponding with the Government for some years but did not get any favourable response. He, however, did not initiate any legal action against the Government for getting an alternative plot in Masjid Moth area in lieu of the suit plot. It appears that while the plaintiff was simply corresponding with the Government for allotment of alternative plot late Smt. Sushila Ghosh succeeded in getting on 99 years lease plot no. 17(msg. 400 sq. yds.), Masjid Moth Residential Scheme,(now known as „Siri Fort Road‟), New Delhi vide lease deed dated 8th May,1974 upon her representing to the Government by way of an affidavit that she was the owner of the suit plot which representation the Government had accepted and then a „Deed of Transfer on Exchange‟ dated 8th May, 1974 was executed between Smt. Ghosh and the Government whereunder Smt. Ghosh surrendered all her rights, title and interest in the suit plot in favour of the Government and it was also agreed between the parties thereto that the Government shall quietly enter upon the suit plot. The execution of the said „Deed of Transfer on Exchange‟ and the Lease Deed in favour of late Smt. Ghosh in respect of plot no.17 was done simultaneously on 8th May,1974. That exchange of Government owned plot with the free-hold suit plot was done by the Government simply by accepting the affidavit of Smt. Ghosh that she was still the owner of the RFA Nos. 405/1992 & 422/1992 Page 4 of 43 suit plot and her signing the said 'Deed of Transfer on Exchange' without taking the title deed in respect of the suit plot from her. The plaintiff on coming to know about the allotment of the plot in Masjid Moth to Smt. Sushila Ghosh in exchange of the suit land felt that his title over the suit land, which he had acquired by virtue of the sale certificate issued in his favour by the Court, had come under cloud and so he gave a notice 24th November,1975, Ex.PW-1/27, under Section 80 CPC to the Government claiming that Smt. Sushila Ghosh was left with no right, title or interest in the suit land after sale certificate had been issued in his favour by the Court and she falsely claiming herself to be the owner of the suit plot had obtained plot no. 17, Siri Fort Road, Masjid Moth Residential Scheme, New Delhi. In that notice the Government was called upon to notify and acknowledge the ownership and possession of the plaintiff in respect of the suit plot. The plaintiff had also conveyed his willingness in that notice to accept plot no.17 in exchange of the suit plot.
4. Smt. Sushila Ghosh had in the meantime died on 6th October, 1974 leaving behind defendants 4-8 as her legal heirs.
5. Since the request of the plaintiff for allotment of an alternative plot as per the aforesaid Scheme of the Government was not acceded to by the Government and instead plot in Masjid Moth was allotted to Smt. Sushila Ghosh, he filed the suit of which these appeals have arisen, on 26/04/77 for a decree of declaration to the effect that he was the absolute owner of suit land. In the suit, Union of India was impleaded as defendant no.1, Delhi Development Authority was impleaded as defendant No.2 and Delhi Administration was impleaded as defendant no.3. Legal heirs of the deceased Smt. Sushila Ghosh were impleaded as defendant nos. 4 to 8. RFA Nos. 405/1992 & 422/1992 Page 5 of 43 In this judgment also these defendants shall be referred to as is the reference to them in the trial Court‟s judgment.
6. The suit was contested by the defendants. Defendants no. 1 to 3 in their joint written statement raised a preliminary objection to the effect since the plaintiff had not prayed for setting aside of the Deed of Transfer on Exchange dated 08/05/74 between the Union of India and late Smt. Sushila Ghosh under which the title of suit plot stood conveyed in favour of the Government the suit for declaration alone was not maintainable . Other preliminary objections taken were that the remedy of the plaintiff was against the LIC and that the judgment passed in the suit in favour of LIC without impleadment of the Union of India was not binding upon it. On merits, these defendants admitted that the acquisition proceedings in respect of the suit plot were set aside in a civil suit filed by the affected land owners. It was also admitted that the deceased Smt. Sushila Ghosh was allotted the property in Masjid Moth in lieu of the suit land and the plaintiff could not get the same as he had been sleeping over the matter for a long time. It was also pleaded that the plaintiff had never informed these defendants about his having acquired the title in respect of the suit land in Sunlight Colony. It was, however, also claimed that after the death of Smt. Sushila Ghosh the lease-hold rights in the property at Sri Fort Road had not yet been transferred in favour of her legal heirs.
7. Defendants No. 4 to 8 also filed a joint written statement which was signed and verified by someone as an Attorney of these defendants. In their written statement certain preliminary objections were raised, one of which was that the suit for declaration alone was not maintainable since the suit land was in the possession RFA Nos. 405/1992 & 422/1992 Page 6 of 43 of defendant no.1 and so possession of the suit plot should also have been claimed as a consequential relief and it was further pleaded that, in fact, even the relief of possession was not available to the plaintiff since suit plot was no more in existence having been taken over by the Government alongwith other plots and was being used for public purposes. Another preliminary objection taken was that the alleged sale certificate in respect the property had been obtained fraudulently and in collusion with the officials of the Life Insurance Corporation of India and his father-in-law was also a senior officer there. The foreclosure suit filed by Life Insurance Corporation of India against Smt. Sushila Ghosh without impleading Union of India was alleged to be bad because of non-joinder of Union of India in that suit. On merits, it was denied that any amount was payable by Smt. Sushila Ghosh to the Life Insurance Corporation of India and it was pleaded that in the foreclosure suit by the Life Insurance Corporation of India against Smt. Sushila Ghosh the decree was obtained by playing fraud upon the Court in the absence of Smt. Sushila Ghosh who was never served with any notice of that suit. It was also pleaded that the so-called sale was a result of fraud which was also evident from the fact that the suit plot, of which even as per the averments in the plaint the value was Rs.55,000/-, was sold allegedly in a suit for recovery of a paltry sum of Rs.6503/- by concealing from the Court the real value of the plot. It was denied that she had participated in those proceedings or had filed any reply to the application under Order 21 Rule 66 filed by LIC. It was also pleaded that the sale certificate relied upon by the plaintiff having been obtained by way of fraud the same was liable to be set aside, being void ab initio.
8. On the aforesaid pleadings of the parties the following issues were framed on 17.10.78 :-
RFA Nos. 405/1992 & 422/1992 Page 7 of 43
"1. Whether the plaintiff is the owner of the property in suit at plot no. 58, Sunlight Colony, Factory Road (Ring Road), New Delhi?
2. Whether the defendants 1 to 3 acquired any right or title in the suit property by virtue of the Exchange Deed dated 8th May, 1974, if so to what effect?
3. Whether the present suit is not maintainable?
4. Whether the suit has not been properly valued for the purposes of Court Fees and jurisdiction?
5. Whether the plaintiff is not entitled to the declaration sought for any other reason mentioned in the written statements of defendants 1 to 3 and 4 to 8?
6. Relief."
9. It appears that because of the objection raised on behalf of the defendants that the plaint had not been valued properly and the plaintiff should have claimed the relief of possession also since the possession of the suit plot had been taken over by the Government way back in the year 1957 when acquisition proceedings were initiated, the plaintiff was allowed by this Court in revision to amend his plaint after his amendment application had been rejected by the trial Court. By way of amendment the plaintiff was allowed to claim the relief of possession also and consequential amendment in the valuation of the plaint in respect of the relief of possession was also allowed to be carried out. The plaintiff had also sought to include an additional prayer in his plaint which was for a decree of possession in respect of plot no.17, Sri Fort, New Delhi but that prayer was not pressed during the hearing of the revision petition since the plaintiff had made a statement that in case after the trial it was found that Smt. Sushila Ghosh was the owner of the suit plot his suit could be dismissed and the alternative plot in Masjid Moth could be given to her heirs and in case it were to be held in the suit that the plaintiff was the owner of the suit plot no.17, Sri Fort Road, the same would be granted to him in exchange for the suit plot. It is the case of the plaintiff that he was bound by that RFA Nos. 405/1992 & 422/1992 Page 8 of 43 statement by this Court while disposing of his revision petition vide order dated 19th November,1984.
10. Although the plaintiff had sought amendment in his plaint by claiming the relief of possession and in the prayer para he prayed for a decree for possession also but in the amended plaint he still maintained that he continued to be in possession of the suit plot. Defendants 1 and 3 filed fresh written statement to the amended plaint. It was now pleaded that the suit for possession was barred by limitation since the possession of the suit land was taken over by the Government on 08/06/57 and the sale certificate in respect thereof was issued to the plaintiff on 14/05/69. Defendants no. 4-8 in their written statement to the amended plaint claimed that the relief of possession had become time barred and, in any event, could not be given to the plaintiff since the suit plot was no more in existence as after the acquisition of the suit plot its possession alongwith other plots, as per the information of these defendants, had been taken over by the Government in the year 1957 and buildings had already been raised over the acquired plots of land including the suit land and further that sale certificate could not be issued since on the date of the issuance thereof the suit plot did not exist, the Government having already taken over its possession in the year 1957.
11. On July 20, 1979 the following additional issues, as issues no. 6 and 7, were framed:-
"6. Whether the plaintiff is in possession of the suit property, if not, to what effect?
7. Whether the suit is bad for non-joinder of Life Insurance Corporation of India?"RFA Nos. 405/1992 & 422/1992 Page 9 of 43
12. On March 13, 1987 the following five more issues were framed by the trial Court:-
"1. Whether any amount was payable by Smt. Sushila Ghosh to LIC as alleged in para 7 of the plaint?
2. Whether any suit was filed by LIC against Smt. Sushila Ghosh as alleged in para 7 of the plaint?
3. Whether property in suit was auctioned in execution as per allegations made in para 8 of the plaint?
4. Whether the suit is within time?
5. If issue no. 3 is proved, whether sale is void as per para 8 of written statement of defendants 4 to 8?
6. Whether plaintiff served notice u/s 80 CPC?"
13. The plaintiff examined himself in support of his case as PW-1 besides examining two more persons. Defendants 4-8 examined only one witness who claimed himself to be the employee of their father. Other defendants did not examine any witness.
14. The learned Additional District Judge by a common discussion decided issue no.1 framed on 17/10/78 and issues no. 1, 2, 3 & 5 framed on 13/03/87 in favour of the plaintiff and held in the impugned judgment that with the issuance of the sale certificate Ex.PW-1/1 in respect of the suit plot in favour of the plaintiff by the concerned Court the plaintiff became its owner. Issue no.2 framed on 17/10/78 was also decided in favour of the plaintiff and the learned trial Judge came to the conclusion that the Deed of Transfer on Exchange dated 8th May,1974 executed between the Government and late Smt. Sushila Ghosh whereby plot no.17, Masjid Moth, New Delhi was allotted to late Smt. Sushila Ghosjh in exchange for plot in suit was a nullity and the defendants no.1-3 could not be said to have acquired any right or title in the suit plot on the basis of that void Deed of Transfer on Exchange since Smt. Sushila Ghosh herself was left with no right or interest RFA Nos. 405/1992 & 422/1992 Page 10 of 43 therein on the issuance of the sale certificate in respect thereof by the Court in favour of the plaintiff. It was also held that since the Deed of Transfer on Exchange was a nullity the plaintiff was not obliged to seek a decree for its cancellation. Issue no.4 framed on 17th October,1978 regarding the objection taken by the defendants to the valuation of the plaint for the purposes of court fees and jurisdiction was not pressed by the defendants. All other issues, except issue no.6 framed on 20/07/79 regarding the possession of the suit plot, were also decided in favour of the plaintiff. Regarding the decree of possession claimed by the plaintiff the trial Court accepted the plaintiff‟s original claim that he was in possession of the suit plot having been put into possession by the Court bailiff and rejected the defendants‟ plea that the Government had been in its possession since the year 1957. Thus, the trial Judge was of the view that this issue was „almost redundant‟. Accordingly, a decree of declaration only was passed vide impugned judgment dated 9th May,1992 to the effect that the plaintiff was the owner of the suit plot.
15. The defendants 4 to 8, it appears, became apprehensive that because of this judgment the Government might not take action against them in respect of their property at Siri Fort Road and so they filed an appeal (being RFA.No. 405/1992).
16. The plaintiff also felt dissatisfied with the rejection of the relief of possession to him and, therefore, he also filed an appeal (being RFA. No.422/92).
17. The Government, however, did not file any appeal and, instead, it decided to honour the verdict of the trial Court and after the filing of the appeal by defendants no.4-8 the Government called upon these defendants vide its letter dated 18th December,1992 to surrender possession of property no.17, Siri Fort RFA Nos. 405/1992 & 422/1992 Page 11 of 43 Road in view of the declaration given by the trial Court in the present case that the Deed of Transfer on Exchange dated 8th May,1974 between the Government and late Smt. Sushila Ghosh was a nullity. Thereupon, the defendants 4-8 in their appeal filed an application for staying the operation of the said letter during the pendency of their appeal and this Court had accepted that prayer.
18. In these two appeals, arguments were advanced on behalf of the plaintiff Subhash Chander Ahuja by the learned senior counsel Shri Arun Mohan and on behalf of the defendants no.4-8, legal heirs of late Smt. Sushila Ghosh, learned senior counsel Shri Madan Bhatia argued. Shri Gaurav Duggal, learned counsel for the Union of India, however, remained neutral during the course of hearing of the appeals and submitted that the Government had, in fact, already decided to honour the final judicial verdict in respect of the controversy between the private parties who are litigating to get property no.17, Sri Fort Road, New Delhi. Shri Pawan Mathur, learned counsel for the Delhi Development Authority submitted that a bare perusal of the polaint averments itself would show that this was not a case where only a cloud had been cast upon the title of the plaintiff in respect of the suit plot but in fact it is a case of total ouster of the plaintiff from the suit plot in April,1974 when the possession of the suit plot and other plots in Sun Light Colony was handed over to DDA by the CPWD for development. Mr. Mathur also referred to a Single Judge Bench decision of this Court in "Anandi Devi & Ors. Vs Delhi Development Authority & Ors." reported as 69 (1997) Delhi Law Times wherein reference was made to acquisition proceedings in respect of Sun Light Colony and quashing of the notifications by the Civil Court etc. when two plot- holders who had failed to get allotment of alternative land in Masjid Moth area in lieu of their plots in erstwhile Sun Light Colony had filed a writ petition. RFA Nos. 405/1992 & 422/1992 Page 12 of 43 Reference was also made in that decision that DDA had developed „Bhikaji Cama Place‟ on the lands in Sun Light Colony, which area had been declared to be commercial area, and in respect of which earlier acquisition proceedings had been initiated but subsequently quashed by the Civil Court. The two writ petitioners in that case finally got an order for allotment of the plots in Masjid Moth area.
19. From the pleadings of the parties, evidence adduced during the trial as also from the submissions made at the Bar from both the sides during the course of hearing of these appeals the admitted facts which have emerged are that the mother of defendants no.4-8, late Smt. Sushila Ghosh, was the owner of the suit plot having purchased the same in the year 1953 from the erstwhile Sunlight of India Insurance Company Ltd., which, as noticed already, subsequently came to be taken over by the LIC. The plaintiff had claimed that she had paid only part of the sale consideration at the time of the execution of the sale deed in her favour and balance was payable in two instalments and to secure the payment of those instalments she had created a mortgage in respect of the suit plot in favour of the said Insurance Company, the vendor. It was also the case pleaded by the plaintiff that since late Smt. Sushila Ghosh had defaulted in re-payment of the balance sale consideration in respect of the suit plot to the vendor, a suit for recovery was filed against her in which a decree was passed against her. Although in their written statement defendants no.4-8 had not admitted but had not specifically denied also the plaintiff‟s averments in the plaint that their mother had mortgaged the suit plot with the Sunlight of India Insurance Company Ltd. and also about the filing of the recovery suit by the LIC and passing of the money decree in that suit against Smt. Sushila Ghosh. Thus, the averments made in the plaint in that regard can be said to have been admitted by these defendants. In any event, the fact that late Smt. RFA Nos. 405/1992 & 422/1992 Page 13 of 43 Sushila Ghosh had mortgaged the suit plot with the vendor Insurance Company was specifically admitted by these defendants in para no.3 of their memo of appeal as also during the course of arguments before this Court. It was also claimed that their mother had redeemed the mortgage. However, as far as the redemption of the mortgage is concerned, they did not make an attempt even to substantiate that plea. When this Court had noticed this plea of redemption of mortgage the defendants 4- 8 were called upon on 20th January, 2004 to give the details as to how the mortgage was redeemed but thereafter also no proof was furnished to substantiate that plea.
20. As per the case of the plaintiff he had purchased the suit plot in Court auction held by the Court where the LIC had filed a suit for recovery of the unpaid instalments against late Smt. Sushila Ghosh. During the execution proceedings started by the LIC for the execution of the money decree passed in its favour in that suit the mortgaged property i.e. the suit plot, was put to auction and was sold to the plaintiff since he was the highest bidder and a sale certificate was issued in his favour by the Court, copy of which is Ex.PW-1/1. None of the defendants had claimed before the trial Court and not even before this Court that the said sale certificate was a forged document. These defendants had though also denied the filing of the suit against their mother by the LIC and had also taken a plea that the entire litigation leading to the issuance of the sale certificate in respect of the suit plot in favour of the plaintiff was a collusive litigation and sale certificate had been obtained by the plaintiff by playing fraud. Learned senior counsel for the defendant nos. 4 to 8 had submitted that since the sale certificate in question had been obtained by fraud and so was void there was no need of filing either a separate suit for getting the sale certificate declared as being void or by filing any kind of application before the court which had issued the same and defendants could take RFA Nos. 405/1992 & 422/1992 Page 14 of 43 that plea in the present suit also. In support, judgments of the Supreme Court in "Prem Singh vs Birbal" (2006) 5 Supreme Court Cases 353 , "Bhaurao Dagdu Paralkar vs State of Maharashtra" (2005) 7 Supreme Court Cases 605 , "Sunder Dass vs Ram Parkash"
AIR 1977 SC 1201 and AIR 1968 SC 261 were also cited.
21. There is no doubt that the defendant could establish in the present suit itself that the sale certificate Ex.PW-1/1 had been obtained by the plaintiff by resorting to fraud in collusion with the LIC officials. One judgment of Patna High Court reported as AIR 1960 Patna 182 was also cited by Mr. Bhatia, learned senior counsel, wherein it was held that where it is alleged that certain transaction was collusive, like the LIC‟s suit for recovery in the present case, the court should lift the veil and look behind the same in order to see what was the real nature of the transaction, like the sale certificate Ex.PW-1/1 in the case at hand. However, even in that regard not even an attempt was made to establish that the sale certificate was got issued by the plaintiff either by colluding with the LIC officials or by playing any kind of fraud upon the Court which had issued the sale certificate Ex.PW-1/1. There is no material brought on record by these defendants behind which this Court could have gone by lifting the veil to find out what lay behind the issuance of the sale certificate in respect of the suit plot in favour of the plaintiff. It was not even suggested to the plaintiff in his cross-examination that the sale certificate relied upon by him was a forged document. None of the defendants no.4-8 themselves stepped into the witness box to say that their mother had neither mortgaged the suit plot nor any recovery suit was filed against her. No reason has been given for none of them appearing in the witness box. It was the contention on behalf of the plaintiff that, in fact, the legal heirs of late Smt. Sushila Ghosh had entered into some transaction with some third party in respect of plot no.17, Sri RFA Nos. 405/1992 & 422/1992 Page 15 of 43 Fort Road and so they were really not interested in protecting that property and that was evident from the fact that they had not even signed the written statement nor had anyone of them appeared during the trial at any stage and their appeal is now being pursued by some other person claiming himself to be their attorney and even in support of the appeal none of the defendants 4-8 had sworn an affidavit. In my view also, that appears to be so. On behalf of defendants 4-8 the person who had signed the written statement also did not appear as a witness and instead, one person who claimed himself to be the employee of their father‟s Firm since the year 1940 had entered into the witness-box to depose on their behalf. This person(PW-1) though claimed that late Smt. Sushila Ghosh had not mortgaged the suit plot but that statement is belied from the fact that, as has been noticed earlier also, during the pendency of these appeals it was claimed by defendants 4-8 in the appeal memorandum that the mortgage was redeemed and as also noticed already, these defendants did not even attempt to substantiate the same despite the fact that this Court had while noticing this plea on 20th January,2004 had asked them to show as to how the mortgage was redeemed. No proof of redemption of the mortgage was given. DW-1 had also deposed that Smt. Sushila Ghosh had not initiated any legal proceedings in respect of the acquisition proceedings in respect of the suit plot. Even this statement of DW-1 is patently a false statement since in the written submissions filed on behalf defendants 4-8 in these appeals, reference to which is made by this Court also in one of the proceedings in these appeals, it has been categorically admitted that Smt. Sushila Ghosh had also filed a suit for challenging the acquisition proceedings. Worth of the testimony of this defence witness has been adversely commented upon by the trial Judge and we also now feel that no reliance can be placed on the word of this witness. He also claimed that no recovery suit was filed against Smt. Ghosh but merely the ipse dixit of this kind RFA Nos. 405/1992 & 422/1992 Page 16 of 43 of unreliable witness would not make that fact as established. If the defendants 4-8 actually wanted to establish that no suit was filed or if at all it was filed the same was a collusive suit and fraud had been played upon the Court they could have taken appropriate steps to get the decree passed in the suit of LIC set aside long back since the plaintiff had filed the suit bringing to their notice all the relevant facts and by placing on record copies of the pleadings of that suit including the written statement of Smt. Ghosh. There is no doubt that during the evidence when those documents were allowed to be exhibited by the trial Judge it was clarified that the objection raised by the counsel for the defendants 4-8 regarding their exhibition because of them being photostat copies of the certified copies of the pleadings in the money suit filed by the LIC against late Smt. Sushila Ghosh shall be considered at the time of final hearing and the same was considered also and rejected. Although in the grounds of appeal of defendants 4-8 that decision of the trial Court was also challenged but nothing was contended in that regard during the course of arguments in these appeals by their senior counsel. In any case, those pleadings had nothing to do with the case of the plaintiff since his case was based only on the sale certificate Ex. PW-1/1, original of which he had placed on record in another case filed by him against the defendants and was summoned in the present suit during the evidence and its certified copy which is Ex.PW-1/1 was exhibited. With the issuance of the sale certificate in his favour by the Court it has to be presumed that a suit for recovery of money against late Smt. Sushila Ghosh must have been filed by the LIC and decreed also in its favour and further that in execution of that decree the suit plot must have been put to auction and that too after compliance of all formalities under Order XX1 of the Code of Civil Procedure in that regard. Thus, in the opinion of this Court, genuineness of the sale certificate Ex.PW-1/1 cannot be doubted at all. It may be noticed here that, in RFA Nos. 405/1992 & 422/1992 Page 17 of 43 fact, even Sh. Madan Bhatia, learned senior counsel for the private defendants did not argue that Ex.PW-1/1 was a forged document. He was perhaps handicapped in this regard inasmuch as during the trial no attempt was made by these defendants to show that the said sale certificate was not a genuine document and so during these appeals there was little scope for getting a finding from this Court that this document is not genuine.
22. The plaintiff claimed, relying upon the judgments of the Supreme Court in "Hans Raj Banga vs Ram Chander Aggarwal", AIR 2005 SC 2384, "Amba Bai and Others v. Gopal and Others", (2001) 5 SCC 570; "Nellikkottu Kolleriyil Madhavi v. Kavakkalathil Kalikutty and Others", (1997) 1 SCC 749; "P. Udayani Devi v. V.V. Rajeshwara Prasad Rao and Another", (1995) 3 SCC 252; "Ghanshyamdas and another v. Om Prakash and Another"r, 1993 Supp (3) SCC 368 and "Municipal Corporation of Delhi v. Pramod Kumar Gupta", (1991) 1 SCC 633, that he had become the absolute owner of the suit plot after the confirmation of the sale in respect of the suit plot by the executing Court and issuance of the sale certificate by the Court in his favour. There is no doubt that in these cases it was held by the Supreme Court that after sale of any property is confirmed under Rule 92, the auction purchaser in Court auction becomes absolute owner of the property put to auction by force of law and the judgment- debtor gets divested of all right and interest in the auctioned property and further that unless the sale certificate is set aside or declared to be a nullity the same has legal validity and force. If this is the legal effect of a sale certificate issued by a competent court in favour of a successful bidder in a court auction then why did the plaintiff have to initiate this legal battle seeking a declaration from the Court that he was the owner of the suit plot? This is the question which now needs to be considered.
RFA Nos. 405/1992 & 422/1992 Page 18 of 43
23. As already noticed, the plaintiff had also claimed in the plaint that after having obtained the sale certificate from the concerned Court in respect of the suit plot he had come to know that many years back the suit plot was sought to be acquired by the Government and the acquisition proceedings in respect of the suit plot as well as other plots which were also sought to be acquired on being challenged in Court were quashed. That, in fact, is the common case of all the parties. The Government, however, even after the acquisition proceedings had been quashed, had offered alternative plots to the concerned plot owners whose plots in Sun Light Colony were earlier sought to be acquired somewhere in Masjid Moth. On coming to know that the Government was offering alternative plots to the owners of lands in Sun Light Colony (now known as „Bhikaji Cama Place‟) the plaintiff had approached the Delhi Administration in the year 1971 for an alternative plot. He claims that he had approached the Central Government also but that fact was disputed by the Union of India. The plaintiff, however, did not get alternative plot though he had been regularly corresponding with defendants 1-3. His failure to get an alternative plot, however, did not bother the plaintiff. What bothered him was the information which he got was that when he was corresponding with the Government departments for alternative plot Late Smt. Sushila Ghosh had also approached the Government for allotment of an alternative plot claiming herself to be the owner of suit plot and simply on the basis of her affidavit that she had the subsisting right and title in the suit plot and the Government ignoring his claim allotted her plot No.17, Masjid Moth Residential Scheme on 99 years lease in exchange of the suit plot.
24. The plaintiff felt that because of the Government having recognized Smt. Sushila Ghosh to be the owner of the suit plot in the year 1974 by allotting her the RFA Nos. 405/1992 & 422/1992 Page 19 of 43 plot in Masjid Moth in exchange for the suit plot of which he claimed to be the owner by virtue of the sale certificate Ex.PW-1/1 his title in respect of the suit plot had come under cloud. That development gave him the cause of action to seek a declaration from the Court that he was the owner of the suit plot by virtue of the sale certificate issued by a competent Court. Learned senior counsel for defendants 4 to 8 and learned counsel for other defendants also did not dispute the fact that if the plaintiff was correct in what he had asserted in his plaint regarding his title based on the sale certificate then he had got the cause of action to seek a declaration from the Court regarding the title to the suit plot. Anybody else in his place would have also felt the necessity of seeking a declaration of title from the competent Court under those circumstances. However, Mr. Madan Bhatia very seriously contended that in the facts and circumstances of the case the plaintiff was not entitled to get the declaration sought by the plaintiff and had been wrongly granted that relief by the trial Court.
25. The first reason put forth by Shri Madan Bhatia for refusing the relief of declaration of title in respect of the suit plot to the plaintiff was that the suit when it was instituted initially was not maintainable since it was filed only for a decree of declaration of title alone in respect of the suit plot even though the plaintiff was not in possession of the suit plot and despite that he had not claimed the relief of possession. It was argued that the plaintiff had made a fictitious cause of action initially for filing the suit for declaration only by falsely claiming that he was in possession of the suit plot which was not permissible. Mr. Bhatia also cited one judgment of the Supreme Court reported as AIR 1978 SC 1094 and one decision of Calcutta High Court AIR 1923 Calcutta 570 in support of this argument. RFA Nos. 405/1992 & 422/1992 Page 20 of 43
26. In view of this objection taken by the defendants in their written statement the trial Court had initially framed issue no.3 on 17th October, 1978 as to "Whether the present suit is not maintainable?" As has been noticed already, the plaintiff had initially filed the suit only for a decree of declaration of title in respect of the suit plot claiming himself to have become its owner by virtue of the sale certificate Ex. PW-1/1. In the plaint he had claimed that he was in possession of the suit plot from the date it was handed over to him by the Court bailiff after issuance of the sale certificate in its favour. The defendant nos. 4 to 8 had taken a stand in their written statement that since it was the defendant no.1, Union of India, which was in actual physical possession of the suit plot after having taken it over along with other plots while initiating acquisition proceedings, suit for declaration simpliciter was not maintainable. In view of that objection issue no.3 was framed on 17th October, 1978 regarding the maintainability of the suit. One option was to stick to his stand that he being in possession of the suit land was not required to sue for possession, thereby taking the risk of failing in the suit in the event of the Court not accepting his case that he was in possession of the suit plot on the date of the institution of the suit and not the Government. Other option was to add the relief of possession also in the plaint and to pay court fees on the value of the suit property, without admitting that the Government was in possession of the suit plot, so that the controversy centering around the possession of the suit plot could be decided once for all between the parties and he could get possession in the event of it being held by the Court that the Government was in possession of the suit land. The plaintiff felt the second option to be more proper to be availed of and accordingly by way of abundant caution and as an alternative plea, which a plaintiff can always raise, he had sought amendment in the plaint by including therein the relief of possession also in respect of the suit plot to avoid taking the risk of failing in his RFA Nos. 405/1992 & 422/1992 Page 21 of 43 suit eventually if his plea of being in possession were not to be accepted by the Court. In one case reported as AIR 1993 SC 957 "Vinay Krishna vs Keshav Chandra and anr.", the Supreme Court had held, under almost similar circumstances, that if the plaintiff in a suit for declaration of title does not claim the relief of possession when the defendant also claims to be in possession of the suit property then the plaintiffs takes a risk and so he should amend the plaint. Patna High Court has also taken the same view in "Siya Ram Das vs State of Bihar", AIR 1979 Patna 98. In that case the trial Court, like in the present case, had rejected the amendment application of the plaintiff in a suit for declaration of title alone and when the matter was taken to the High Court this is what was observed:-
"16.................it appears from the plaint that the plaintiffs claimed to be in possession. The defendants, on the other hand, as appears from the written statement, denied that and claimed to be in possession on their own account. Obviously the real dispute between the parties centered round possession. If the court were to adjudicate upon the question of possession, it is only fair that the party which succeeds in establishing its possession should get the benefit of a decree in that respect as well................................"
After observing so, the amendment application filed by the plaintiff seeking the relief of possession also in addition to the already claimed relief of declaration of title was allowed. Therefore, after the amendment of the plaint in the present case, the objection of the defendants regarding the non-maintainability of the suit without the relief of possession in view of the bar created under the proviso to Section 34 of the Specific Relief Act did not survive and so issue no.3 framed on 17th October, 1978 was rightly decided by the learned trial judge in favour of the plaintiff by not accepting the objection of the defendants that the suit was not maintainable because of the plaintiff having initially omitted to claim the relief of possession. No decision was brought to the notice of the Court to the effect that even after amendment of the plaint by a plaintiff by claiming the relief of possession also in a suit for declaration of title alone in respect some immovable RFA Nos. 405/1992 & 422/1992 Page 22 of 43 the objection of bar under Section 34 would still survive. Therefore, the findings of the learned trial Court on issue no.3 framed on 17 th October,1978 holding the suit to be maintainable are affirmed by this Court.
27. The defendants 1-3 and 4-8 had taken some other grounds also in their respective written statements for not passing a decree of declaration of title in respect of the suit plot in favour of the plaintiff and in view of those grounds the trial Court had framed issue no.5 on 17th October, 1978 as to "Whether the plaintiff is not entitled to the declaration sought for any other reason mentioned in the written statement of defendants 1 to 3 and 4 to 8?". Now, as far as the objections raised by defendants 1 to 3 are concerned the same become meaningless since they have not challenged the judgment of the learned trial Judge on any point and in fact, as noticed already, the Government has already accepted the position that late Smt. Sushila Ghosh had obtained the plot in Masjid Moth by misrepresenting to it that she was the owner of the suit plot and now her heirs have been called upon to deliver back the possession that property in Masjid Moth(Siri Fort Road) to the Government. However, those objections are now being pressed into service by defendants 4 to 8 through their learned counsel who had submitted that since the ownership and interest of the heirs of late Smt. Sushila Ghosh in respect of the property no.17, Siri Fort Road has been put in jeopardy because of the declaration granted in favour of the plaintiff by the trial Court that he was the owner of the suit property they(defendants 4-8) have now to press into action their entire armoury of legal weapons and also to use the legal weapons available in the armoury of their one time partner in this fierce battle i.e. the Government, which has already announced cease-fire with the plaintiff. The plaintiff‟s senior counsel, on the other hand, RFA Nos. 405/1992 & 422/1992 Page 23 of 43 showed his full preparedness to counter any kind of legal weapon which the defendants 4-8 might use against him.
28. Mr. Madan Bhatia submitted that it would be a futile decree to be passed declaring the plaintiff to be the owner of the suit plot since the same does not exist today and in fact it had ceased to be in existence even before the filing of this suit because of the constructions raised thereupon by the DDA, defendant no.3. In support of this argument that in the absence of the existence of the suit plot the declaration of title sought for would be futile Mr. Bhatia cited one judgment of the Supreme Court in "Guru Datta Sharma vs State of Bihar", AIR 1961 SC 1684 and some judgments of different High Courts which are reported as AIR 1957 Allahabad 719, AIR 1955 Madhya Bharat 94, , AIR 1943 Patna 34, AIR 1927 Patna 286, AIR 1940 Lahore 1, AIR 1949 P.C. 53,AIR 1925 Oudh 598. However, in my view the relief of declaration of title in respect of some immovable property sought for by a plaintiff cannot be said to be dependent upon whether the plaintiff would also be in a position to get the decree of possession or not. The requirement of law is that when a plaintiff seeks a decree of declaration of title to some immovable property, which is being refuted by the defendant, he must claim relief of possession also if he is not in possession of the property in suit. If the Court finds after the trial that for some reason possession of the property in suit cannot be granted even after accepting the claim of the plaintiff that he was the owner thereof the Court can always mould the relief appropriately and even if that is also not done for some reason, the relief of declaration of title can still be granted. This view of mine is fortified by a judgment of Madras High Court in "O.S.Venkataraman vs R.V.M.K.Prasad", (2007) 6 MLJ 1018 wherein also facts were quite similar to the facts of the present case. The plaintiff there had also sought only a decree of RFA Nos. 405/1992 & 422/1992 Page 24 of 43 declaration of title initially but subsequently possession of the property in dispute was also claimed by amending the plaint since it was claimed that the defendant had trespassed over some portion of the suit property after the filing of the suit. The trial Court after examining the evidence adduced came to the conclusion that the plaintiff had established his ownership and accordingly granted him a decree of declaration of title but relief of possession was declined on the ground that it had become time barred. The judgment of the trial Court was affirmed in first appeal also but for denying the relief of possession different reason was given by the first appellate Court which was to the effect that the plaintiff had failed to establish as to which portion of the suit land had been encroached upon by the defendant and so the property was not identifiable. That decision of the first appellate Court was affirmed by the High Court also.
29. Now, as far as the facts of the present suit are concerned, there is in any case no evidence adduced by any of the defendants to substantiate the plea that the suit property does not exist. Learned senior counsel drew my attention to the brief written synopsis dated 9th February,2009 submitted on behalf of the plaintiff during the course of arguments in these appeals wherein it has been admitted that on a part of the suit plot Government had allowed one petrol pump to function. Mr. Arun Mohan did not not dispute that factual position but submitted that that does not show that the suit plot does not exist at all. I am in agreement with this submission of Mr. Arun Mohan. Now, as far as the relief of decree for possession claimed by the plaintiff is concerned, that aspect would be independently examined and decided while dealing with the issue no.6 framed by the trial on 20 th July, 1979 and which arose because of the pleas regarding actual possession taken by the parties in their respective pleadings.
RFA Nos. 405/1992 & 422/1992 Page 25 of 43
30. It was then argued by Shri Madan Bhatia that a bare reading of the plaint would show that this was not a suit really for getting a decree of declaration to the effect that the plaintiff was the owner of the suit plot but, in fact, in the garb of that prayer he really wanted a declaration that late Smt. Sushila Ghosh had obtained plot no. 17, Siri Fort Road, by mis-representing to the Government that in the year 1974 she was the owner of the suit plot while, in fact, the plaintiff should have been allotted property no. 17, Siri Fort Road in lieu of the suit plot. And that relief, contended Mr. Bhatia, could not have been sought by the plaintiff in this suit without making a specific prayer for setting aside/cancellation of the Deed of Transfer on Exchange dated 8th May,1974 and for a decree of possession in respect of the property at Siri Fort Road and that prayer could not have been made in this suit since the Government had framed the Scheme for allotment of alternative plots in the year 1971 and it is the plaintiff‟s own case that he had come to know about that Scheme in the year 1971 itself and during that year itself he had approached the Government for allotment of an alternative plot but had not succeeded in getting alternative plot. So, if at all he wanted alternative plot under the Scheme of 1971 he could have filed the suit within three years which he did not do and instead filed the present suit in the year 1977 by which time the period of limitation for the suit to get alternative plot had already expired and so in order to bye-pass the hurdle of limitation he had filed this suit wherein he indirectly made averments in respect of his right to get alternative plot simply by claiming a decree of declaration of his title in respect of the suit plot. In these circumstances, Mr. Bhatia contended, the plaintiff should not have been given the decree of declaration in respect of the title of suit plot in his favour since he really never wanted that declaration what he wanted had already become time barred. This was the objection which actually was raised by the Government in its written statement but RFA Nos. 405/1992 & 422/1992 Page 26 of 43 was not accepted by the trial Court and, as noticed already, the Government was not aggrieved and the private defendants have now sought to utilize this argument.
31. There is no doubt that in the plaint the plaintiff had pleaded that late Smt. Sushila Ghosh had falsely claimed herself to be the owner of the suit plot in her affidavit dated 24th April, 1974 submitted by her with the government for claiming alternative plot in Masjid Moth area and the government had also accepted her ownership merely on the basis of that affidavit and further that Smt. Sushila Ghosh had fraudulently concealed the fact that w.e.f. 17 th September, 1968, when the sale of the suit plot in the name of the plaintiff was confirmed by the Court, he had become the absolute owner thereof and she had also fraudulently got the allotment of a plot in Masjid Moth in her name in exchange of the suit plot and also that he himself had also been trying to get some plot allotted in his name in Masjid Moth in lieu of the suit plot under the Scheme floated by the Government in the year 1971. However, from these averments in the plaint it cannot be said that the real relief which the plaintiff wanted from the Court in the present suit was a declaration that the Deed of Transfer on Exchange dated 8 th May, 1974 executed between late Smt. Sushila Ghosh and the Government was a nullity and void ab- initio as also the relief of possession of plot no. 17, Masjid Moth in lieu of the suit plot. As noticed already, it has been the case of the plaintiff that after issuance of the sale certificate in the name of the plaintiff in respect of the suit plot he had come to know that the suit plot was at one time sought to be acquired by the Government but subsequently acquisition proceedings were quashed by a Civil Court but even then the Government had offered to allot alternative plots in Masjid Moth Residential Scheme to the plot holders whose plots were sought to be acquired. The plaintiff had also approached the Government for allotment of an RFA Nos. 405/1992 & 422/1992 Page 27 of 43 alternative plot in exchange of the suit plot. However, despite the fact that his request for alternative plot was not acceded to by the Government for about three years he had not initiated any legal proceedings against the Government to claim alternative plot as a matter of right. But when he came to know that late Smt. Sushila Ghosh had also approached the government for allotting her a plot in Masjid Moth area by claiming herself to be the owner of the suit plot and the Government had allotted her one plot in Masjid Moth accepting her affidavit wherein she had claimed herself to be the owner of the suit plot he felt that his title in respect of the suit plot had come under cloud. Only that cloud he wanted to get removed and that is evident even from the notice dated 24th November,1975, Ex.PW-1/27, which he had served upon the Government, wherein he had simply called upon the Government to simply acknowledge his ownership and possession of the suit plot and had put it on notice that in case that was not done he would be getting his title cleared through the Court by getting a declaration that he was the actual owner of the suit plot. And when he actually filed this suit he had sought for the relief of declaration of his title only in respect of the suit plot. The facts pleaded by him in the plaint in respect of the transaction between late Smt. Sushila Ghosh and the Government whereby the Government had allotted plot no. 17, Masjid Moth to her in lieu of the suit plot were pleaded by the plaintiff only for the purpose of showing that that transaction had thrown a cloud over his title in respect of the suit plot and those facts had given him the cause of action for filing this suit. He was not obliged to seek cancellation of the Deed of Transfer on Exchange dated 8th May, 1974 since he was not a party to that transaction nor could he be legally bound by that document. Nor could the Government acquire any right in the suit plot on the basis of that document since Smt. Sushila Ghosh herself by that time lost her title in respect of the suit plot by force of law because RFA Nos. 405/1992 & 422/1992 Page 28 of 43 of that plot having been sold in Court auction to the plaintiff. So, the learned trial has rightly concluded while deciding issue no.2 framed on 17 th October,1978 that under the so-called Deed of Transfer on Exchange dated 8th May,1974 the Government did not acquire any interest in the suit plot. In such a situation the legal maxim nemo dat qui non habet(no person can convey a better title other than what he has) squarely applied. The plaintiff was affected by that document only to the extent that his own title in respect of the suit plot had come under cloud because of the Government being a party to that document and that cloud could be cleared simply by a decree of declaration from a competent Court that the plaintiff was the absolute owner of the suit plot by virtue of the sale certificate Ex.PW-1/1. The plaintiff did not claim that he was entitled to get plot no. 17, Masjid Moth nor it can be said that that intention could be inferred from any averment in the plaint. No doubt, after filing this suit he appears to have changed his mind and decided to claim property no. 17, Masjid Moth by filing a separate suit for that relief. However, from the filing of a separate suit for that relief it cannot be said that in the present suit also he had wanted the decree for possession of the property at Siri Fort Road from defendants 4 to 8 and so for that reason he should not be given the decree of declaration that by virtue of the sale certificate Ex.PW-1/1 he had become absolute owner of the suit plot. Now, whether the relief in that regard has become time barred and whether he gets that property or not in the subsequently instituted suit is not for this Court to examine and decide in this suit.
32. Having dealt with submissions of the learned senior counsel for defendants 4-8 which arose out of the facts pleaded and objections raised in the pleadings and having rejected all of them I now proceed to consider the submissions made by Shri Madan Bhatia for which there was no foundation in the pleadings. Learned RFA Nos. 405/1992 & 422/1992 Page 29 of 43 senior counsel had also submitted that during the pendency of the suit plaintiff had served upon defendants 1 to 3 another notice dated 1st June, 1984 under Section 80 CPC read with Section 53-B of the Delhi Development Act once again claiming that by virtue of the sale certificate, Ex.PW-1/1, he had become the owner of the suit plot. Reference was also made to the pendency of the present suit as also to the plea taken in this suit by the Government that it was in possession of the suit plot. The Government was put to notice that the plaintiff shall be filing another suit for injunction or possession of plot no.17, Siri Fort Road which according to him had been fraudulently got allotted by late Smt. Sushila Ghosh claiming herself to be the owner of the suit plot. Thereafter the plaintiff filed another suit in this Court on 01/07/86 against these very defendants for declaration and injunction. In that suit (being suit no.2332/86) the plaintiff while admitting that the Government was in possession of the suit plot once again asserted his right in respect of suit plot no.58, Sun Light Colony and had also prayed for a direction to the Government to give back its possession and also in respect of plot no.17, Sri Fort Road and a prayer for a decree of possession of that plot was also made in lieu of the suit plot no. 58 after paying court fees on the value of that property at Sri Fort Road which was fixed at ten lacs of rupees. Mr. Bhatia submitted that the filing of a fresh suit for declaration in respect of both the plots and possession of plot no.17 during the pendency of the present suit itself is now sufficient to set aside the impugned judgment of the trial court by allowing the appeal filed by the defendant nos. 4 to 8 and dismissing the appeal filed by the plaintiff since the Court is not expected to give futile declarations.
33. Another point which was highlighted by Shri Madan Bhatia is that the defendants 4-8 had come to know that the plaintiff had applied for allotment of a RFA Nos. 405/1992 & 422/1992 Page 30 of 43 flat and had got it allotted also in Punjabi Bagh in the year 1973 by one Co- operative Society by the name of The Adarsh Bhawan Co-operative House Building Society Ltd. representing to the Society that he did not own any property in Delhi which shows that the case of the plaintiff in this suit that he had become the owner of the suit plot was false. Not only that, the fact that the plaintiff is a person who has been claiming that late Smt. Ghosh had got the plot in Masjid Moth fraudulently, himself has clearly indulged into falsehood disentitles him to the discretionary relief of declaration for this reason also. It was also submitted that the plaintiff is really interested in getting the opinion of the Court and that too from different Courts by filing separate suits but Courts are not meant to give opinions in such frivolous litigation. In this regard also some judgments were cited which are reported as AIR 2005 SC 3330, 1995 SCC(Crl.) 239, 1993(6) 331, AIR 1976 SC 888 , AIR 1980 Delhi 103 , AIR 1953 Saurashtra 21 and AIR 1941 Federal Court 5. Mr. Bhatia also argued that even though before the trial Court these points were not urged but this Court also while deciding these appeals can and must take notice of these facts to do full justice between the parties. In support of the submission that the Courts, including appellate Courts, are bound to take notice of the aforesaid material facts/developments reliance was also placed on a decision of the Supreme Court reported in AIR 1975 SC 1409.
34. Mr. Arun Mohan, learned senior counsel for the plaintiff, did not dispute the proposition that the Court, including the appellate Court, should take note of subsequent developments and to mould the relief appropriately but it was also contended that merely on the basis of oral submissions in that regard made by the counsel for the defendants no decision can be taken by this Court. RFA Nos. 405/1992 & 422/1992 Page 31 of 43
35. No doubt, the Court, including the appellate court, must take note of events happening during the pendency of a suit and mould the relief taking into consideration subsequent happenings in order to do complete justice. However, in "Om Prakash Gupta v. Ranbir B. Goyal", AIR 2002 SC 665, the Supreme Court was of the view that the party relying on subsequent events should first bring on record the subsequent developments through proper route by having resort to amendment of pleadings. These are the views expressed by the Supreme Court:-
"12. Such subsequent event may be one purely of law or founded on facts. In the former case, the Court take judicial notice of the event and before acting thereon put the parties on the notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 of the CPC. Such subsequent event the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties..........................
13...........No doubt, Courts „can‟ and sometimes „must‟ take notice of subsequent events..........In the case at hand, the defendant-appellant has simply stated the factum of proceedings initiated by HUDA against the plaintiff-respondent in an affidavit very casually filed by him. He has not even made a prayer to the Court to take notice of such subsequent event and mould the relief accordingly, or to deny the relief to the plaintiff-respondent as allowed to him by the judgment under appeal, much less sought for an amendment of the pleadings. The subsequent event urged by the defendant-appellant is basically a factual event and cannot be taken cognizance of unless brought to the notice of the Court in accordance with established rules of procedure which if done would have afforded the plaintiff-respondent an opportunity of meeting the case now sought to be set up by the appellant. We do not think this Court would be justified in taking notice of a fact sought to be projected by the appellant in a very cavalier manner.........."(emphasis supplied) In the present case also, the defendants have not sought any amendment in their written statement for considering the development of filing of a fresh suit by the plaintiff and its impact of the present lis. They did not take this plea even before the trial Court. So, in my view, based on the oral submissions only, made by the learned senior counsel for defendants no. 4 to 8 before this court to take note of the said subsequent development, no decision about the fate of the present suit RFA Nos. 405/1992 & 422/1992 Page 32 of 43 can be taken and that is the view of this Court despite the fact that during the course of arguments the filing of another suit by the plaintiff during the pendency of the present suit was not denied by Shri Arun Mohan, learned senior counsel for the plaintiff. If the defendants had got their written statement amended the plaintiff would have got a chance to take a stand in writing regarding the impact of filing of the fresh suit on the present suit and then the Court would have framed an appropriate issue arising out of those pleas and then a decision would have been taken but not otherwise. It was also submitted that in any event filing of a fresh suit cannot have any impact on the previously instituted suit nor is there any law prescribing any consequences of filing a second suit during the pendency of the previously instituted suit.
36. As far as the plea raised that the plaintiff had himself represented to some Society, for getting some flat, that he did not own any property in Delhi while in this suit he is claiming to the contrary which shows that he had obtained flat in Punjabi Bagh by misrepresentation is concerned the defendants 4-8 can always seek cancellation of that allotment by bringing to the notice of the concerned Society all these facts and get his allotment cancelled if that course of action is available to him in law. In the present proceedings this development also, like the other one of the plaintiff having filed a fresh suit, cannot be gone into since as far as the prayer made by the plaintiff in this suit for declaring him as the owner of the suit plot based on duly issued sale certificate Ex.PW-1/A by a competent court is concerned the same is to be decided only on the basis of facts averred by the parties in their respective pleadings and the evidence adduced in respect of the title of the suit plot and not on the basis of any extraneous material which is not a part of the pleadings.
RFA Nos. 405/1992 & 422/1992 Page 33 of 43
37. Thus, the position which emerges from the discussion made so far is that late Smt. Sushila Ghosh was the owner of the suit plot and the same was sold in Court auction to the plaintiff being the highest bidder and sale certificate Ex.PW-1/1 was issued in his favour. With the issuance of that sale certificate in favour of the plaintiff the ownership of the suit plot came to be vested in the plaintiff and late Smt. Sushila Ghosh stood divested of all her right and interest therein. However, because of her representing to the Government in the year 1974 that she had subsisting right and interest in the suit plot and the government allotting her plot no.17, Masjid Moth Residential Scheme on lease for 99 years in consideration of her surrendering her right and interest in the suit plot in favour of the Government the plaintiff‟s title in respect of the suit plot which he had acquired under the sale certificate Ex.PW-1/1 came under cloud and he became entitled to have cleared from Court. The learned trial Court has thus rightly removed the cloud over the title of the plaintiff in respect of the suit plot and this Court has no hesitation in affirming the findings of the learned trial Judge on issues no.1,2 and 5 which were in favour of the plaintiff and it is held that the decree of declaration granted by the trial Court in favour of the plaintiff declaring him to be the lawful owner of the suit plot by virtue of the sale certificate Ex.PW-1/1 cannot be set aside for any reason.
38. Now comes the question of possession of the suit plot. The plaintiff, as noticed already, had filed the suit initially only for getting a declaration that he had become the owner of the suit plot having purchased the same in Court auction. At that time he had specifically pleaded in his plaint that physical possession of the suit plot was also handed over to him by the Court bailiff. The defendants 4-8, who only were the real contesting parties because their title in respect of their property at Siri Fort Road was at stake, had refuted that claim of the plaintiff and it was RFA Nos. 405/1992 & 422/1992 Page 34 of 43 pleaded in their written statement that the possession of the suit plot was with the Government right from the year 1957 when acquisition proceedings were initiated. In view of the denial of that claim of the plaintiff he had, as noticed already, amended his plaint as an abundant caution and had claimed the relief of possession also. That prayer was in fact in the nature of a relief claimed in the alternative in the event of the Court not accepting the plaintiff‟s claim that he was in possession of the suit plot. That, the amendment was only by way of abundant caution and claimed only as an alternative relief is evident also from the fact that even in the body of the amended plaint the plaintiff maintained his stand that he was in possession of the suit plot. That stand was reiterated in para nos. 8 and 25 of the amended plaint dated 06-12-84 and the plaintiff asked for "decree for declaration and possession" in respect of the suit plot. In the written statement to the amended plaint the Government also categorically took the plea that it had taken over the possession of the suit plot way back in the year 1957.
39. Since the question of possession became a disputed question of fact between the parties the trial Court had framed a specific issue in that regard. On this aspect I find it quite surprising that the defendants 4-8 had been trying to ride on the shoulders of the Government during the trial of the suit but unfortunately the Government had not offered its shoulders to defendants 4-8 to ride on. That is evident from the fact that the Government after taking the plea in its written statement that it was in possession of the suit plot since 1957 and never pursued that plea thereafter. As noticed already, no evidence was adduced by the Government at all during the trial. So, it becomes clear from the absence of evidence from the side of the Government that it does not stand established that it was in possession of the suit land on the date of confirmation of the sale and RFA Nos. 405/1992 & 422/1992 Page 35 of 43 issuance of the sale certificate in the name of the plaintiff by the Court.The plaintiff‟s stand has been that the possession of the suit plot was never taken over by the Government while initiating acquisition proceedings. In this regard he has placed reliance on the judgment of the Civil Court in the suits filed by late Smt. Sushila Ghosh and other persons against the Government for the quashing of the acquisition proceedings, copy of which judgment dated 29 th April, 1960 was produced during the course of arguments by the learned senior counsel for the plaintiff for the perusal of this Court. Shri Madan Bhatia, learned senior counsel representing the legal heirs of late Smt. Sushila Ghosh, very fairly did not dispute these facts nor did he question the genuineness of the copy of the judgment of the Civil Judge which was shown to the Court during the course of arguments by the learned senior counsel for the plaintiff. A perusal of that judgment showed that while issuing notification dated 8th March, 1957 under Section 4 read with Section 17(1)(4) of the Land Acquisition Act,1894 the Land Acquisition Collector had also sought to take the possession of the lands intended to be acquired immediately and another notification dated 8th March,1957 was issued under Section 6 also. In those suits the Government had taken the stand that possession of the plots intended to be acquired was taken over by it on 08/06/57 and then handed over to CPWD. The plaintiffs of those suits had refuted that stand and had claimed that they were in possession of their plots. The Court did not accept the plea of the Government and held that possession of the plots was still with the land-owners, which included late Smt. Sushila Ghosh also, and while quashing the two notifications, the Government was also restrained from interfering in the possession of the landowners. Thus, it becomes clear that on the date when the suit plot was purchased by the plaintiff in Court auction late Smt. Sushila Ghosh was its owner as well as in its possession and in view of the said decision of the Civil RFA Nos. 405/1992 & 422/1992 Page 36 of 43 Court, which had attained finality after the Government had failed to get it set aside right upto the Supreme Court, the plea of the Government and the legal heirs of late Smt. Sushila Ghosh that possession of the suit plot was taken over by the Government in the year 1957 cannot be entertained at all. It was in fact highly unfair on the part of the defendants and the Government in particular to have taken such a false stand of it being in possession of the suit plot from 1957 onwards. As far as the legal heirs of late Smt. Sushila Ghosh are concerned they also could not have taken the stand in the present suit that the Government had taken over the possession in the year 1957 since their mother had herself categorically taken the plea in that suit against the Government that possession of the suit plot was with her and that plea was accepted also by the Court. It, however, appears that subsequently these defendants must have been advised, and rightly so, to give up that stand which they did and that is evident from the fact that in their written submissions dated 28th May, 2002 filed in their appeal they claimed that their mother after redemption of the mortgage had continued to be in possession of the suit plot., which plea, as noticed already, could not be substantiated by them.
40. Now comes the question as to who out of the parties to this suit was in actual physical possession of the suit plot on the date of the institution of this suit. The plaintiff had claimed to be in possession of the suit plot having been put into possession thereof by the Court bailiff after issuance of sale certificate Ex.PW-1/1 in his favour by the Court. These allegations had been refuted by the defendants and so a specific issue was framed in respect of this dispute between the parties and it was for the plaintiff to establish that after issuance of the sale certificate in his favour by the executing Court he had been delivered actual possession of the suit plot by the Court bailiff as was his stand. The plaintiff had though placed on RFA Nos. 405/1992 & 422/1992 Page 37 of 43 record copies of the pleadings of the recovery suit filed by LIC against late Smt. Ghosh and some pleadings and orders passed in the execution proceedings, which he was not even required to file because his case of title was based on the sale certificate, but quite surprisingly he did not produce on record the order of the executing Court directing that he should be delivered the actual physical possession of the suit plot. After confirmation of the auction sale under Order XXI 21 Rule 92 CPC and issuance of the sale certificate by the executing Court, as provided under XXI Rule 94 CPC, the auction purchaser is required to move an application for delivery of actual possession if the property purchased by him is in possession of the judgment debtor and for symbolical possession under Order XXI Rule 96 CPC, if the possession is with some persons other than the judgment- debtor. In the present case, since the possession of the suit plot was with the judgment debtor, namely, late Smt. Sushila Ghosh on the date of confirmation of the sale and issuance of the sale certificate in his name by the executing Court the plaintiff, who was the auction purchaser, was supposed to move the executing Court under Order 21 Rule 95 for taking the actual possession of the suit land. This provision reads as under: -
"95. Delivery of property in occupancy of judgment-debtor Where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, order to delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same."
This provision of law makes it amply clear that the auction purchaser has to move specific application before the executing Court for being delivered actual possession of the property sole to him. This is the view taken by the Supreme Court also in " K.P.Lakshminarayana Rao vs New Premier Chemical Industries", (2005) 9 RFA Nos. 405/1992 & 422/1992 Page 38 of 43 SCC 354 and "Balwant Naryan Bhagle vs M.D. Bhagwat & Ors.", AIR 1975 SC 1767. If the plaintiff had actually got the possession of the suit plot through Court bailff he must have moved an application under this provision of law and the Court also must have passed an order directing delivery of possession to him by the bailiff but no copy of any such application under Order XX1 Rule 95 CPC or order of the Court was produced by him during the trial. If the bailiff had delivered the possession to him some delivery memo also must have been prepared at the spot in the presence of some witnesses and its copy would have been given to the plaintiff. No such proof also has been given by the plaintiff. In the absence of any such documentary proof having been produced by the plaintiff his own bare statement that he had been delivered the possession of the suit plot by the Court bailiff cannot be accepted. There cannot be any automatic delivery of possession of any property, even if it be vacant land, to an auction purchaser who has purchased the property in court auction. Therefore, the argument of Mr. Arun Mohan based on the principal that possession follows title also cannot come to the rescue of the plaintiff.
41. There are other strong reasons also for not accepting the ipse dixit of the plaintiff that he had got the possession of the suit plot through Court bailiff in the year 1969 and that possession continued with him till the institution of the present suit. As noticed already, initially when he had filed the suit he had not claimed the relief of possession on the ground that possession was already with him. That stand he maintained throughout the trial. Even in the amended plaint after adding the relief of possession in the prayer para he had maintained that he was in possession of the suit plot. However in in his replication to the written statement of defendants 1-3 to the amended plaint he pleaded that the Government appeared to have taken over the possession of the suit plot during the pendency of the suit but RFA Nos. 405/1992 & 422/1992 Page 39 of 43 no details were given about the date of his dispossession. That plea was however given up by him during his evidence when he once again re-iterated his claim that he was in continuous possession of the suit plot ever since the date of its delivery to him by the bailiff. And then when the trial Court did not grant him the decree of possession he once again took a somersault and in his memorandum of appeal he pleaded that the Government had taken over the possession of the suit plot after the institution of this suit. And as has been noticed earlier the plaintiff has also admitted in his written synopsis that as on date there exists a petrol pump on the suit plot although Mr. Arun Mohan‟s submission was that the petrol pump was there on a very small portion of the suit plot which could be easily ordered to be removed during the execution of the possession decree if the same is granted to the plaintiff in his appeal. Thus these conflicting stands taken by the plaintiff at different times also indicate that the actual possession of the suit plot was not obtained by him through Court bailiff at any time after issuance of the sale certificate Ex.PW-1/1. From all this I have also entertaining a doubt in my doubt that now this battle is being fought and continued not by the plaintiff himself but by some proxy by the name of Manmohan Kumar acting as the attorney of the appellant-plaintiff as is the position in case of the heirs of late Smt. Sushila Ghosh also. So, a proxy war is being fought by the parties using the Court as a battlefield.
42. Thus, the position which now emerges in respect of the actual possession of the suit plot on the date of filing of the suit by the plaintiff is that as on the date of issuance of the Sale Certificate by Court in favour of the plaintiff the possession was with late Smt. Sushila Ghosh. The plaintiff-auction purchaser did not get its possession thereafter although ownership thereof stood transferred in his favour by force of law. The plaintiff has placed on record a copy of the Deed of Transfer on RFA Nos. 405/1992 & 422/1992 Page 40 of 43 exchange dated 8th May, 1974 executed between late Smt. Sushila Ghosh and the Government which records an agreement between these parties that the Government would quietly enter upon the suit plot while executing the Lease Deed in favour of Smt. Sushila Ghosh in respect of plot No.17, Masjid Moth. This document also confirms that till 8.5.1974 the Government was not in actual possession of the suit plot and Smt. Sushila Ghosh possessed the same. Despite the fact that Smt. Sushila Ghosh stood divested of her ownership rights in the suit plot by operation of law with the execution of the Sale Certificate Ex.PW-1/1 she could still continue to retain its possession and to deliver it to anyone including the Government which by virtue of the Deed of Transfer on Exchange she did. Therefore, with effect from 8.5.1974 the possession of the suit plot can be said to be with the Government although without acquiring any right in that property. The plaintiff is now clearly claiming that the possession of the suit plot has been taken over by the Government and has allotted the same to someone for running a petrol pump though it is also his contention that that is only a temporary arrangement entered into by the Government with someone because of this litigation. In the Memorandum of Appeal also the plaintiff is claiming that the Government is in possession of the suit plot. Although it is being claimed that the Government has taken over the possession of the suit plot during the pendency of the suit but in the absence of any evidence to that effect that plea cannot be accepted and it has to be inferred that even on the date of filing of the suit in April, 1977, the plaintiff was not in actual possession of the suit plot.
43. There is no doubt that the plaintiff is now asking for a decree of possession also by filing an appeal against the Trial Court's judgment wherein the Trial Court has declined that prayer holding that he was in possession. However, as far as the RFA Nos. 405/1992 & 422/1992 Page 41 of 43 finding of the Trial Court that the plaintiff was in possession of the suit plot at the time of filing of the suit now stands reversed because of this Court coming to the conclusion that he was not in possession but it was the Government who was in possession of the suit plot. The plaintiff even then cannot be given a decree of possession in the present proceedings since his status qua the suit plot even now remains that of an auction purchaser who is still to get delivery of the property purchased by him. As an auction purchaser, the only remedy available to the plaintiff was to invoke the provisions of Rule 95 or 96 of Order 21 CPC. No suit lies at the instance of an auction purchaser for getting possession of the auctioned property either against the judgment debtor in possession or anyone else in occupation thereof either on behalf of the judgment debtor or in any other capacity. This is also the view taken by the Supreme Court in K.R.Lakshminarayana Rao's case (supra) which judgment was followed by Kerala High Court also in " Velikkal Anjaneyan and Anr.", 2008(1) KLJ 349.
44. The result of aforesaid discussion on all the aspects canvassed before this Court during the course of hearing of these appeals is that the decision of the learned Trial Court granting a decree of declaration in favour of the plaintiff- appellant Subhash Chander Ahuja declaring him to be the owner of plot No.58, Sunlight Colony (now known as Bhikaji Cama Place) is affirmed as also the rejection of the relief of decree of possession in respect of the said plot to the plaintiff though not on the ground that he was already in possession thereof but for the reason that neither he was in possession on the date of filing of the suit nor he had taken any steps in accordance with law as an auction purchaser to get its possession delivered to him by the executing Court. Consequently, both these appeals are dismissed. However, the appellants in both the appeals are directed to RFA Nos. 405/1992 & 422/1992 Page 42 of 43 bear their respective costs. As a result of the dismissal of the appeal of defendants No.4 to 8 (RFA No. 405/1992) the stay which this Court had granted against the operation of letter dated 18th December, 1992, issued by the Government calling upon these defendants to surrender the possession of leased property No.17, Sirifort Road, New Delhi stands vacated.
DECEMBER 07, 2009 P.K.BHASIN,J
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