Delhi District Court
Mukhinder Singh (Deceased) vs S. Gurbux Singh on 14 January, 2010
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IN THE COURT OF SH. DINESH BHATT, ADJ-03, (NORTH)/DELHI
Date of Institution:-22/05/75
Date of Decision:-14/01/10
Civil Suit:-119/09
1. Mukhinder Singh (Deceased)
Through his L.R's
1A. Smt. Rano Singh
W/o late Sh. Mukhinder Singh
R/o B-57, Friends Colony, (West),
New Delhi
1B. Sh. Madhav Inder Singh
S/o late Sh. Mukhinder Singh
R/o B-57, Friends Colony, (West),
New Delhi
1C. Sh. Manav Inder Singh
S/o late Sh. Mukhinder Singh
R/o B-57, Friends Colony, (West),
New Delhi
2. Sh. Sukhinder Singh
S/o late Sh. S. Sohan Singh
Contd...........
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R/o House No. 3, Sector 5,
Chandigarh
3. Madhav Inder Singh
S/o late Sh. Mukhinder Singh
R/o B-57, Friends Colony (West),
New Delhi
4. Sh. Manav Inder Singh
S/o late Sh. Mukhinder Singh
R/o 29, Nizzamudin East,
New Delhi
5. Sh. Simar Inder Singh
S/o S. Sukhinder Singh
R/o House No. 3, Sector 5,
Chandigarh ..........Plaintiffs
VS
1. S. Gurbux Singh
S/o late Sir Sobha Singh
R/o 8, Friends Colony (West),
New Delhi
2. Col. S. Shamsher Singh (Deceased)
Makarpur, Baroda,
Gujarat
(Through Legal heirs)
2(a) Smt. Renne Shamsher Singh
W/o late Sh. Shamsher Singh
Contd...........
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2(b) Sh. Dalbir Singh
S/o late Sh. Shamsher Singh
2(c) Sh. Ishwar Singh
S/o late Sh. Shamsher Singh
All at:
R/o Aviskar E. Pent House,
Old Padara Road,
Baroda, Gujarat
3. Mrs. Rani Harnarain Singh (Deceased)
W/o Major General Harnarain Singh
R/o Moron House, Phillaur,
Punjab
(Through her legal heirs)
3(a) Smt. Sarina Jasbir Singh
D/o late Smt. Rani Harnarain Singh
R/o A-50/19, DLF City, Phase-I,
Gurgaon
3(b) Sh. T.S. Singh
S/o late Smt. Rani Harnarain Singh
R/o 33, Qutab View Apartments,
Opp. Qutab Enclave, New Delhi
4. Mrs. Uma Binode
W/o S. Binode Singh
R/o Nowshera House, Amritsar
Punjab
Contd...........
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5. Mrs. Shilla Ranjit Rai (Deceased)
Through its Lr's
5(a) Smt. Aruna Ahlowalia
R/o B-290, Shashank Lok-I,
Gurgaon, Haryana
5(b) Smt. Priya Shergil
D/o late Asha Shergill
R/o House No. 262, Sector 11-A,
Chandigarh
5(c) Major Shivjit Shergill
S/o late Asha Shergill
R/o House No. 262, Sector 11-A,
Chandigarh ..........Defendants
JUDGMENT:-
1. Sale deed of allotted land by a registered Society was subject to completion of construction. Transfer pending execution of sale deed by allotee was allowed to blood relatives. Allotee instead of constructing sought transfer of allotment to son of friend, referred to by him as his nephew. Transfer request was being processed and Society sought clarification about relationship of transferee. No headway made but transferee completed construction and sought execution of sale deed. Request for transfer was never revoked Society subject to furnishing indemnity bond executed sale deed. Allotee disputed sale deed on the ground that transfer request was abandoned and also not permissible as per rules of Society.
Contd...........
-5-2. This is a suit for possession and mesne profits. As per the plaintiff, Sohan Singh father of plaintiffs no. 1 & 2 was member of Nathu Ram Friends Colony Co-operative House Building Society and had enrolled himself as member on 16/01/50. Plot no. 8, Friends Colony measuring 4132 Sq. Yards vide agreement dt. 14/01/52 was alloted in his favour (Sohan Singh was the original allotee of the suit plot and is herein after also referred to as allotee for convenience). As per the agreement, Sohan Singh was required to construct house on the said plot and on completion of the construction, sale deed in respect of land was to be executed. The total consideration of the plot of Rs. 11,824/- was paid to the Society. Further a sum of Rs. 1,500/- and Rs. 100/- as development charges to Society and Rs. 2,100/- as sewage charges were paid by the allotee. Sohan Singh was having brotherly relations with Sobha Singh father of defendant no. 1 and had been entrusted on his behalf to deal with all correspondences relating to the suit plot with the Society. All letters received by Allotee from the Society were handed over to Sobha Singh for taking action thereupon. Some payments to the Society were also made by Sobha Singh on behalf of allotee. Sohan Singh-allotee had been stationed and permanently residing at Simla or at his farm in District Karnal, therefore, father of defendant no. 1, Sobha Singh had offered his services to construct house on the suit plot for Sohan Singh. In the year 1956-57 building plans for the construction of the suit house were sanctioned and construction thereof was entrusted to Sobha Singh father of defendant no. 1 by Sohan Singh. Allotee and Sobha Singh were into a construction partnership business. Construction of the suit house was carried out with the construction materials left with their partnership firm. The cost of Rs. 30,000/- towards the construction was also debited to the account of Sohan Singh in the partnership firm. After the completion of the construction Contd...........
-6-Sobha Singh was entrusted by allotee to manage the property in the best interest.
3. On 11/06/59 Sohan Singh intimated about completion of the construction to the Society which was duly acknowledged by the Society vide its Resolution no. 6 dt. 30/08/59. Defendant no. 1 at the back of Sohan Singh approached the Society for transfer of the suit land in his name.
It is further stated that a separate suit no. 235/66 has been filed by the Society against Sohan Singh in respect of the suit plot. As per which defendant no. 1, has claimed that the suit land was transferred to defendant no. 1 by the Society vide Resolution of its general meeting dt. 13/12/59. No notice of the meeting or the agenda was ever served to Sohan Singh. Thereafter on 03/12/60 a sale deed was executed in favour of defendant no. 1 by the Society. The entire consideration amount of the suit plot was paid by Sohan Singh-allotee and therefore the Society could not have transferred or executed sale deed in favour of defendant no. 1. The said sale deed is therefore null and void and defendant no. 1 therefore has acquired no rights in the suit land. The sale deed was entered into by collusion, conspiracy and manipulation of defendant no. 1 alongwith Nathu Ram and other highly placed office bearers of the Society.
4. On or about 14/05/63 deceased Sohan Singh, allotee as per terms of agreement dt. 14/01/52 approached the Society to execute sale deed in respect of the suit plot but the Society vide letter dt. 23/05/63 informed him that the sale deed in favour of defendant no. 1 had already been executed on 03/12/60. The fact of fraudulent transfer was kept concealed by the Society and defendant no. 1 from deceased Sohan Singh. This fact of execution of sale deed therefore came into knowledge of deceased Sohan Singh for the first time on 25/05/63. The Society at the time of execution of said sale deed Contd...........
-7-also asked defendant no. 1 to execute an indemnity bond for indemnifying the Society against all possible claims relating to the disputed plot. In 1964 defendant no. 1 retired from Army service and then his father Sobha Singh put him in possession of suit property. The sale deed dt. 03/12/60 is therefore void and the possession of defendant no. 1 in suit property is illegal. Deceased Sohan Singh, allotee raised a dispute with the Society in respect of the suit plot, and Arbitration proceedings were initiated. The Society approached Registrar Co-operative Societies Delhi to permit it to file a civil suit in respect of the title of the disputed suit plot as complicated question of facts and law were involved. Registrar permitted the Society to file civil suit which was filed and numbered as civil suit no. 235/66.
That before the demise of late Sohan Singh an undivided Joint Hindu Family was in existence and the co-parceners included Sohan Singh, original allotee, his sons Mukhinder Singh, Sukhinder Singh, grandchildren Master Manav Inder Singh, Master Madhav Inder Singh and Simar Inder Singh. On death of Sohan Singh the property devolved upon surviving co- parceners. Later the Joint Hindu Family was dissolved and vide family arrangement family properties were partitioned and legal heirs put in the possession of their respective shares.
It is further stated that defendant no. 1 has falsely alleged that the construction of the building was raised by him with his own funds. It is submitted that even if it is assumed for the sake of arguments that the construction was raised by defendant no. 1, even then defendant no. 1 could not have acquired any right or title or interest in the suit plot or the suit property as he had no right authority to raise any construction and transfer of land in his name is illegal. Plaintiff has claimed possession and mesne profits @ Rs. 4,000/- p.m. and restricted their claim to the extent of Rs. 1,44,000/-
Contd...........
-8-for the past mesne profits and prayed for future mesne profits. The cause of action for possession according to the plaintiff has arisen in January, 1964 when the defendant no. 1 was put into possession by his father-Sobha Singh and in the alternate on 25/05/63 when the fraud committed by defendant no. 1 was discovered by Sohan Singh. It is stated that it lastly arose on 21/05/75 when the trespasses was continuing.
5. Defendant no. 1 has filed written statement, wherein it is stated that the market value of the suit property even as per Sohan Singh was not less than Rs. 6,16,000/-. The suit is stated to be not maintainable and also barred by limitation. The suit is also stated to be barred under the Delhi Co- operative Societies Act as civil court has no jurisdiction to take cognizance of the matter in dispute. That a similar suit i.e. suit no. 235/66 in regard to the same cause of action is pending and therefore liable to be stayed.
On merits it is stated that Sohan Singh, original allotee was alloted the suit plot in 1952 but had failed to fulfill the conditions of allotment. It is denied that Rs. 11,824/- was the full consideration of the suit plot. Family relationship and partnership between father of defendant no. 1, Sobha Singh & Sohan Singh, original allotee are admitted. As per terms and conditions of the agreement dt. 14/01/52 construction was to be completed within one year but Sohan Singh was unable to complete the construction and therefore, on 04/10/54 Sohan Singh faced with threat of forfeiture of his plot wrote a letter to the Society expressing his inability to construct and had requested the Society to transfer the plot to his nephew defendant no. 1. In pursuance to letter dt. 04/10/54 Managing Committee of the Society vide Resolution dt. 13/10/54 agreed to transfer the suit plot in favour of defendant no. 1. The transfer was subject to the condition that all arrears were to be paid in advance by defendant no. 1. Defendant vide cheque deposited the Contd...........
-9-arrears with the Society and also deposited membership fee as cost of his share. It is denied that Sobha Singh was acting as attorney or agent for Sohan Singh. In fact father of defendant no. 1, Sobha Singh was acting on or behalf of his son. All correspondences with the Society were made by Sobha Singh on behalf of his son, defendant no. 1. It is stated that partnership between Sohan Singh and Sobha Singh was dissolved and accounts were settled in 1957-58. The plans for construction of the house on the suit plot were approved for and on behalf of defendant no. 1 within the knowledge of Sohan Singh. It is also denied that the material of the partnership firm were used for construction of the suit plot. The construction on the suit land was carried out by defendant no. 1 from his own funds and by his father, Sobha Singh on his behalf. No money from the partnership business for construction was spent or debited to the partnership account of Sohan Singh, original allotee. All the charges in regard to development and construction, towards sewage were deposited by defendant no. 1. Construction of the suit house was started in 1957 and was completed in the year 1959. Defendant no. 1 has been in occupation of the building ever since. After the construction was completed defendant no. 1 vide letter dt. 14/08/59 informed the Society that he had completed the construction on the suit land and therefore plot should be transferred in his name. Agenda for transfer of plot vide general meeting dt. 11/10/59 by the Society was circulated. The notice of agenda was also sent to Sohan Singh but the matter could not be taken up in the meeting on the said date as such was adjourned to 06/12/59 which was again adjourned for want of quorum and finally vide Resolution of general body meeting of Society held on 13/12/59, transfer of the suit plot in favour of defendant no. 1 was confirmed and conveyance deed dt. 03/12/60 was executed. All these proceedings were well within the knowledge of Sohan Contd...........
-10-Singh but no objection at any point of time was raised by him. It is stated that the execution of the sale deed by the Society dt. 03/12/60 is lawful, valid and justified. The collusion between Society and defendant no. 1 is denied. Defendant has also stated that in the year 1960 till 1964 the suit property was given on rent to officers of Newzealand High Commission and rents were received by him. Defendant no. 1 has stated that from 1954 he is in possession of the suit property and therefore even on basis of long possession he is entitled to retain possession of the suit property. Appointment of Arbitrator in regard to the dispute raised by Sohan Singh is admitted. But it is stated that it was the Registrar Co-operative Societies who was of the view that issue of disputed plot should be determined by filing a civil suit. No request by Society was made in this regard. Joint Hindu Family of Sohan Singh is denied. It is also stated that Sohan Singh had never declared the plot or house in dispute in his income tax and wealth tax returns. Defendant no. 1 has also stated that he had mentioned the construction of the house and mentioned the same in his income tax and wealth tax returns right from the year 1959-60. It is stated that lakhs of rupees was spent by defendant no. 1 for construction and the construction was carried out within the knowledge of Sohan Singh, original allotee. The plot was transferred in the name of defendant no. 1 on the request of the said Sohan Singh. Therefore, the L.R. of Sohan Singh i.e. present plaintiff have no right to reopen the matter which was settled by Sohan Singh, himself. The value of the suit property is stated to be about Rs. 8 lakhs.
Other defendants did not file any written statement.
6. Replication was also filed. The plea of adverse possession of defendant is denied. The valuation of the suit property is correct as the same Contd...........
-11-is stated to have been admitted by the defendant in the connected suit no. 235/66.
7. From the pleadings of the parties following issues were framed on 10/12/76 for consideration:-
1. Whether the court fee has been properly paid?
2. Whether the suit is not maintainable in the present form?
3. Whether this court has no jurisdiction to try the suit?
4. Whether the suit is bad for non-joinder or mis-
joinder or multifariousness of parties, as alleged by the contesting defendant?
5. Whether the plaintiffs constitute a joint Hindu Family as alleged in the plaint?
6. Whether the suit is liable to be stayed under section 10 of the C.P.C. as alleged by the contesting defendant?
7. Whether the suit is within limitation?
8. Whether the plaintiffs are estopped from filing this suit on the grounds alleged by defendant no.
1?
9. Whether late S. Sohan Singh was allotted plot no. 8, Friends Colony, New Delhi by the Society and was given possession thereof, as alleged?
Contd...........
-12-10.Was the plot in question transferred to defendant no. 1 by the Society, as alleged by the contesting defendant?
11.Whether the sale deed of the plot in dispute was fraudulently executed by the Society in favour of defendant no. 1, as alleged in the plaint? If so, its effect.
12.Whether the plot in question was allotted to defendant no. 1 on 22/11/1954 as alleged in para 25 of the written statement?
13.If the preceding issue is decided in the affirmative, whether defendant no. 1 is in open possession of the same and had constructed the house thereon?
14.Whether the plaintiffs are entitled to claim mesne profits? If so, for which period and what amount?
15.Relief.
8. Additional issues framed on 20/09/84:-
1. Whether the house in question was constructed by S. Sobha Singh for and on behalf of S. Sohan Singh from the material left over available with the partnership firm and whether the plaintiff S. Sohan Singh also gave Rs. 30,000/- to S. Sobha Contd...........-13-
Singh towards the construction of the super-
structure, as alleged, thus becoming owner of the house?
2. If the plaintiffs are entitled to possession of the property in dispute, is defendant no. 1 entitled to any compensation? If so, to what amount would the defendant be entitled?
3. Whether the plaintiff, S. Sohan Singh, paid full consideration for the plot no. 8, Friends Colony, New Delhi as alleged in paragraph 3 of the plaint?
Defendant no. 1 is the only contesting defendant. Issue no. 3 is not pressed and issue no. 6 does not survive in view of the fact that other connected suit has been dismissed in default.
9. Vide order dt. 17/01/85 in the present suit and statement of counsels for the parties recorded on 02/12/88 in suit no. 235/66, both the suits were ordered to be consolidated and tried together. As such evidence of suit no. 235/66 were ordered to be treated as evidence in the present suit. Suit no. 235/66 has been dismissed in default but records have been called for the purpose of the present trial. The documents available on the said case file are very old and in worn out condition which are likely to be destroyed by repeated reference. In view of this with the consent of the parties, the photocopies of documents and evidence have also been retained on the present case file for convenience and ready reference.
10. Plaintiff has examined four witnesses DW1, DW2, DW3, D1W1. Defendant has examined six witnesses D2W1 to D2W6 and the Society has examined PW1-PW5 as their witnesses. PW5 Nathuram President of the Contd...........
-14-Nathuram Co-operative Housing Society has exhibited the official communications with Sohan Singh and defendant no. 1. He has also exhibited documents, Ex. P-20 relating to the agreement to sell with Sohan Singh, Ex. P-28 the letter written by Sohan Singh to Society asking to transfer the plot to defendant no. 1. He also stated that in 1957 defendant no. 1 started construction of the house on the suit plot and the construction was completed by his father Sobha Singh on his behalf. Ex. P-9 is the Resolution passed by the Society in favour of defendant no. 1. Vide Ex. P-35 the Resolution was sent to the plaintiff. Ex. P-54 is the copy of the agenda of the Society for meeting on 11/10/59. Ex. P-55 is the copy of the minutes of the meeting of the Society held on 18/10/59. Ex. P-56 & 57 are the copies of the entries in the dispatch register relating to the posting of the agenda. Ex. P-59 and Ex. P-60 relate to the agenda of meeting held on 13/12/59. Ex. P-61 is the copy of letter dt. 16/02/60 written by Society to defendant no. 1. Ex. P-40 is the first complaint received from Sohan Singh by the Society protesting against the transfer of the plot to defendant no. 1. He also stated that the house in question was in occupation of defendant no. 1. In cross-examination he admitted that the general body had not confirmed the transfer in favour of defendant no. 1. The witness also stated that he had no knowledge if Sohan Singh wanted to construct house on the plot. This witness was not cross- examined by defendant no. 1 as he was not party at the said time.
D1W1 had appeared on behalf of plaintiff and stated that he was 19 years old in 1959. He stated that the plans for construction of the suit house were signed by his father and the house was constructed on the said basis. Ex. P-28 was written by Sohan Singh to Sobha Singh but it became a dead letter as it was never acted upon. Ex. D2W1/X12 was letter dt. 11/01/60 written in acknowledgment of letter mark Z which was sent by Regd./A.D. Contd...........
-15-The witness also stated that Ex. D2W1/1 was a forged document. He stated that before 1963 they were not aware that the Society had transferred the plot to defendant no. 1. He also stated that his father Sohan Singh did not want to construct initially as he did not want to block his money in one project. He stated that he was not aware as to for what period Newzealand High Commission was occupying the suit house. He also stated that he was not aware if defendant no. 1 was collecting the rent from the tenant. He further stated that he was aware about of the construction of the suit house but not of cost. The witness could not give the exact details of the house or the plan. He also claimed that his father had shown the property in his wealth tax returns. He also admitted that letter Ex. P-28 was never cancelled by his father Sohan Singh. He stated that his father knew that there was no relationship between him and defendant no. 1 and therefore the no objection could not be given and Ex. P-28 died its own death. D2W1 defendant no. 1 deposed on his behalf and reiterated the stand taken in the written statement. He has stated that he had completed the construction in July, 1959 and stated living in the house in November, 1959. In January, 1960 the house was given to Newzealand Embassy on a rent of Rs. 1,500/-. In cross-examination he has stated that he has sent a cheque of Rs. 11,000/- as consideration amount to Sohan Singh. The plans for construction were sanctioned in the name of Sohan Singh as he was still the allotee but was signed by his father Sobha Singh. He has stated that no power of attorney was given by Sohan Singh in respect of the plot or the construction. D2W3 Himat Singh was working as an Accountant with the firm M/s Sobha Singh Contractor which was a partnership firm of Sobha Singh, Sohan Singh, Ajaib Singh and G.S. Banga. The partnership worked uptill 1958 only. He identified the signature of G.S. Banga on documents on record. He stated that the expenses of construction Contd...........
-16-of suit house were made from the accounts of defendant no. 1 and the accounts were regularly maintained. Separate accounts of Sohan Singh were maintained and Sohan Singh had invested Rs. 20,000/- and was returned Rs. 45,000/-/. The copy of the accounts were exhibited as Ex. D2W3/14. The amount of Rs. 50,000/- was invested by Sohan Singh in 1950, out of this amount Rs. 20,000/- was invested in the partnership firm. The amount of Rs. 45,000/- was returned to Sohan Singh. The amount of Rs. 50,000/- was returned to Sohan Singh vide two cheques of Rs. 25,000/- each. D2W4 stated that he had seen defendant no. 1 in 1957 when he started construction on the suit plot and completed his construction in about 1-1/2-2 years.
There are large number of documents available on record which are mainly in the form of communications addressed by the parties to each other.
Issue wise findings:-
11. Issue no. 1:-
Plaintiff has valued the suit at Rs. 14,604/- and at Rs. 1,44,000/- for claim of mesne profits. Defendant no. 1 have stated that the suit was valued for more than Rs. 6,16,000/- even by Sohan Singh as per his reply in suit no. 235/66. The valuation given by the plaintiff is therefore not correct.
Ld. Cl. for the defendant has stated that the value of the suit property has increased manifold since the year 1952. The suit was filed in the year 1975. The suit land is more than 4,000 Sq. Yards and the value of the land as per allotment in 1952 was Rs. 5/- per Sq Yards. DW3 has stated that value of the plot similar to suit land was about Rs. 103 per Sq. Yards. Ex. P1 filed by Sohan Singh mentions the value of the suit land at Rs. 5,16,500/- and Rs. 1 lakh as cost of the building. D2W1 has stated that the value of the suit property was more than Rs. 4 crores on the date of examination of the Contd...........-17-
witness (i.e. 05/12/88). Ld. Cl. for the plaintiff has relied on AIR 1992 SC 184, 156 (2009) DLT 723, AIR 1988 Delhi 316, 57 (1998) DLT 410, as per which he has stated that the court fee for possession of the property has to be calculated on the market value of the property as on the date of filing of the suit. According to him the value of the property should be about 50 times of the value of the land in 1965 which would come out to Rs. 2,68,00,000/-. Ld. Cl. for the plaintiff has stated that the valuation given by the defendant is hypothetical and is not correct as per facts and documents available on record. Ld. Cl. for the plaintiff has stated that they are ready to pay the court fee on the value of Rs. 8 lakhs which has been assessed by the defendant as market value in the written statement.
The valuation of the property for a suit for possession has to be calculated on the basis of market value of the property as on the date of filing of the suit. Admittedly the plot was proposed to be sold by the Society for an amount of Rs. 11,824/-. Certain development charges were also added to the same. Sale deed was executed in the year 1960 by which time the amount of Rs. 14,604/- had been deposited in lieu of the suit land. House was constructed on the suit land and plaintiffs have claimed possession of the suit property, which includes the land as well as the structure built on the land. Valuation of the plaintiff is as per cost of plot deposited with the Society. Therefore, plaintiff has not valued the land as on the date of filing of the suit and have also not included the value of the building existing on the land. In para 27 of the written statement defendant no. 1 has stated that the market value of the house is Rs. 8 lakhs. The parties have themselves stated that in 1966 the value of the property was more than Rs. 6,16,000/- and as per defendant no. 1 the market value of the property was Rs. 8 lakhs. Ld. Cl. for the plaintiff has fairly conceded that they are ready to pay the court fee on the valuation at Rs. 8 lakhs given by the defendant.
Contd...........-18-
Accordingly, issue no. 1 is decided against the plaintiff and in favour of the defendant.
12. Issue no. 2:-
Defendant has stated that the present suit is not maintainable as the relief of possession as prayed by the plaintiff cannot be granted without grant of a decree of specific performance of agreement to sell dt. 14/01/52 and also without asking for declaration of cancellation of the sale deed dt. 03/12/60 in favour of defendant no. 1. As per Ex. P1 which was filed by Sohan Singh-allotee, before the Arbitrator, had prayed that the Society should be directed to execute and register sale deed in his favour and in the alternate for damages. In the present suit plaintiffs have not claimed any relief of performance of agreement dt. 14/01/52. It is further stated that the person holding under an agreement to transfer has an equitable interest so long as the agreement is capable of specific performance. It is further stated that if the legal transfer is complete the rights acquired are rights in rem and if the transfer is incomplete the person holding under such agreement only has an equitable right. An equitable right is a right in personum and cannot be passed on to the L.R's under laws of succession. It is further stated that Sohan Singh had sought for execution of the sale deed in the dispute raised before the Arbitration against the Society but subsequently no right has been claimed for specific performance. The right, if any, in favour of Sohan Singh had to be exercised within 03 years from the refusal to enter into the sale agreement by the Society on 23/05/63. The plaintiff have not availed this right even after January, 1960 or 1963 or by means of the present suit. Therefore according to defendant without claiming any relief of specific performance suit for possession is not maintainable. The second argument is that plaintiffs have not claimed cancellation of document dt. 03/12/60 by Contd...........-19-
virtue of which defendant no. 1 has been recognized as the owner. The third point raised by the defendant is that in case defendant seeks relief of possession then the act of dis-possession has to be pleaded and proved. Possession can be claimed U/s 5 or 6 of the Specific Relief Act. Section 6 is not applicable as it was to be raised within 06 months. In a suit for possession U/s 5 plaintiff has to prove title of the property and have also to show that he was entitled to possession or that he had possession before the defendant got into possession.
Defendant has relied on AIR 1939 PC 201 as per which a person who is out of possession on the date of the suit and had been in possession of the property can succeed only on the strength of his own title and not on the weakness of his oponent.
Plaintiff has stated that Sohan Singh was the legitimate allottee of the suit land. Father of defendant no. 1 Sobha Singh had been entrusted the management of the suit property by Sohan Singh and defendant no. 1 in a fraudulent and collusive manner has entered into a sale agreement with the Society. Defendant no. 1 was delivered illegal possession by Sobha Singh and is therefore liable to restore back the possession to the plaintiffs. Therefore, the present suit is maintainable as they have claimed possession of the suit property.
To claim possession plaintiffs have to show that they were dispossessed and are being restrained from possession of the property in an illegal manner. On the basis of averments in the plaint the plaintiffs claims that in 1963 it came into their knowledge that defendant no. 1 was holding illegal possession of the property. The dispute of the property was raised before the Arbitrator and the title suit as per directions of Arbitrator was field in the year 1966.
Contd...........-20-
The suit property was owned by the Society. An agreement to sell was executed by the Society in favour of Sohan Singh with the condition that the sale deed would be executed only after completion of construction. The Society as per the terms of agreement had rights to repossess the land. No sale deed was executed in favour of Sohan Singh predecessor in interest of the plaintiffs. Instead a sale deed has been executed in favour of defendant no. 1. The plaintiffs state that the sale deed was illegal and void. The possible reliefs which could have been claimed by the plaintiff are (i) cancellation of the sale deed in favour of defendant no. 1 (ii) specific performance of the agreement to sell in favour of Sohan Singh (iii) damages from the Society for breach of contract and (iv) in case of cancellation of sale deed in favour of defendant no. 1 claim possession. Plaintiffs have not claimed specific performance of agreement to sell. An issue in regard to the sale deed in favour of defendant no. 1 being null and void is already framed as issue no.
11. Damages for breach of the terms of agreement to sell have not been claimed. The only relief which exists is the right to claim possession from defendant no. 1 is on the grounds of the disputed sale deed being null and void. This controversy is the subject matter of the present suit and therefore on proving facts contained in the plaint, the plaintiff may be entitled to seek relief of possession if otherwise permissible in law.
Therefore the present suit is held maintainable and issue no. 2 is decided against the defendant and in favour of the plaintiff.
13. Issue no. 4:-
It is stated by the defendant that the present suit is bad for non- joinder of necessary parties as the plaintiff has not made the Society, Sobha Singh, and wife and children of pre-deceased son Shivender Singh L.R. of the deceased Sohan Singh as parties. The plaint is full of allegation against Contd...........-21-
the Society. Defendant no. 1 has claimed title of the suit property through the Society and there are allegations of fraud between the Society and defendant no. 1. Therefore Society was a necessary party. It is further stated that Sobha Singh is stated to be attorney of Sohan Singh and according to the plaintiff was handed over the suit property for management. He had fraudulently manipulated the sale deed of the defendant no. 1 and had also handed over the possession of the suit property to defendant no. 1. It is further stated that no relief can be granted in the suit unless a finding on the fact is given that Sobha Singh was acting on or behalf of Sohan Singh, and Sobha Singh had acted beyond his authority and fraudulently transferred the plot in the name of the defendant. There are allegations of fraud committed by Sobha Singh and the Society, and defendant no. 1 is only a beneficiary therefore they were required to be made party. It is further stated that widow and children of pre- deceased son of Sohan Singh have not impleaded as party. Statement of D1W1 and D2W1 clearly point to the fact that deceased Shivender Singh was survived through his widow and children but were not impleaded as a party. Plaintiff has stated that there is no relief against the Society, Sobha Singh and that L.R. of Shivender Singh were not required for the adjudication of the present suit.
As per AIR 1953 SC 521 "Dy. Commissioner Vs. Rama Krishna" and 1954 SCR 506 "Hardeva Vs Ismail".
Two tests have been laid down for determining the question whether a particular party is a necessary party to a proceeding:- (i) there must be a right to some relief against such party in respect of the matter involved in the proceeding in the question and (ii) it should not be possible to pass an effective decree in absence of such a party.
Contd...........-22-
As per AIR 1954 SC 210 "Jayanath Vs Jaswant Singh" it is held that a suit cannot be dismissed only on the ground of non-joinder or mis-joinder of parties. As per AIR 1965 SC 24 "Kandearathanormal Vs V.S. Loganatha Mudalia" and AIR 1931 PC 229 if the person who is likely to be affected by the decree is not joined as a party in the suit or appeal, the suit or appeal is likely to be dismissed on the ground alone. In AIR 1986 SC 210 "B.P. Rao Vs State of A.P." where all the affected persons had not been joined as parties to the petition, and some of them only were joined, the Hon'ble Supreme Court took the view that if the interests of the persons who were not joined as parties were identical with those persons who were before the court and were sufficiently and well represented and, therefore the petition was not liable to be dismissed on that ground.
The impleadment of parties to the suit is to be judged on the test stone of the fact whether relief prayed in the suit can be granted in absence of the parties or not. In the present suit relief of possession only from defendant no. 1 has been sought. Therefore, though there are averments against the Society & Sobha Singh but for the purpose of present suit they are not necessary parties to the suit. In regard to the question of impleadment of Shivender Singh L.R's of Sohan Singh. The plaintiff in his plaint has tried to explain that there was family settlement between the family members of the parties even otherwise in the present suit parties are sufficiently represented and their interests protected. Absence of L.R's of Shivender Singh is therefore not fatal to the present suit.
Accordingly, issue no. 4 is decided against the defendant.
14. Issue no. 5:-
Plaintiffs have stated that there existed a Joint Hindu Family which has been detailed in para 22 of the plaint. The same is denied by Contd...........-23-
defendant in the written statement. Existence of Hindu Undivided Family is a question of fact within the personal knowledge of the plaintiffs and their family members. They have made averments in the plaint which are not disputed by plaintiffs or defendant no. 2 to 5. Plaintiff's witnesses wer supported their stand. For existence of Hindu Undivided Family no documents are required. Hindu Undivided Family is a entity which exists until and unless shown to be dissolved. There is also a presumption of Hindu Undivided Family. There is no proof contrary to the same and therefore the issue is decided in favour of the plaintiff.
15. Issue no. 7:-
Defendant no. 1 have stated that the present suit is barred by limitation for relief of possession. Limitation is governed by Article 64 of the Limitation Act, wherein limitation of 12 years is prescribed. According to the plaintiff they came to know about the disputed sale deed in favour of defendant no. 1 on 23/05/63 and according to them the limitation would start from the said date. But according to the defendant the plaintiffs were never in possession of the property. It has not been proved that the Sobha Singh was holding the property on behalf of Sohan Singh. No evidence has been led to show that the suit property was constructed by Sohan Singh. It has not been mentioned in any of the wealth tax or income tax assessment orders. Defendant was holding the property since 1954 when the Society had agreed to transfer the suit property in his name. Defendant no. 1 had given the property on rent to Newzealand High Commission in the year 1960. This fact was well within the knowledge of Sohan Singh. Therefore the plaintiffs had never been in possession of the property and the limitation, if any, would start from 1954 when the defendant no. 1 had been given possession of the property. Ld. Cl. for the plaintiff has stated that the property was being held Contd...........-24-
by Sobha Singh on behalf of Sohan Singh and the possession was delivered to defendant no. 1 in the year 1964. As such all through constructive possession of the property was with the plaintiffs and that the defendant can be held to be in possession only from the date when Sohan Singh came to know on 23/05/63 that a fraudulent sale deed has been entered in favour of defendant no. 1. The present suit is therefore within period of limitation.
In 1960 the suit property was admittedly in permissive possession of defendant no. 1. The dispute was raised for the first time on 23/05/63 when the sale deed in dispute came to the knowledge of Sohan Singh.
As per the plaintiffs therefore execution of sale deed came to their knowledge in 1963 whereby immediately dispute was raised before the Society and the matter was referred for Arbitration. The Ld. Arbitrator vide letter dt. 22/01/06 had asked the Secretary Nathuram Society stating that "it is held that issue is involving a complicated question of law and fact as such you may get it decided by instituting a suit in the court of law within the period of six months from the date of receipt of this letter". Consequently, civil suit no. 235/66 was filed by the Society wherein Sohan Singh and defendant no. 1 were parties. In the year 1975 present suit for claim of possession from defendant no. 1 has been filed. Both the suits of the year 1966 and the present suit were clubbed together for the purpose of trial. For the purpose of limitation all the facts right from 1963 when dispute was first raised till filing of the suit in 1975 show that the issue of present suit was alive and was raised before various forums as provided in accordance with law. Cause of action was surviving and therefore the suit is within limitation.
Issue no. 7 is therefore decided in favour of the plaintiff and against the defendant.
Contd...........-25-
16. Issue no. 8:-
Defendant no. 1 has stated that in the written statement plaintiffs are estopped by acts and conduct of late Sohan Singh on whose representation Society had accepted the transfer. Sobha Singh and defendant no. 1 had also acted on his assurance. The plaintiff had admittedly on 04/10/54 vide Ex. P-28 requested for transfer of plot to defendant no. 1. Society had accepted the request for transfer vide Ex. P-8. Possession of plot was with Sobha Singh and there was no dispute till the construction was completed in 1959. Vide Ex. P-30 dt. 16/10/54 Society had conveyed Sohan Singh that the working Committee had agreed to transfer the plot in favour of defendant no. 1. Vide Ex. D-8 Sohan Singh admits receipt of this letter. Defendant no. 1 had also inducted Newzealand High Commission as tenant in the property in 1959-60 and continued to receive rent till 1963-64. Sohan Singh had never revoked his request for transferring the plot to the Society. He had never given any letter to defendant no. 1 or Sobha Singh whereby he had told them to hand over the possession or to say that they had no right in the property. The dispute of suit land for the first time was raised by Sohan Singh vide letter Ex. P-11. The Society has transferred the suit plot on the request of Sohan Singh. Therefore it was for Sohan Sigh to take precautionary steps if he wanted to avoid transfer to defendant no. 1 on his request. No efforts uptill 1960 have been shown to be taken. The act and conduct of Sohan Singh therefore clearly suggest that he had agreed for transfer and on his assurance construction was raised. The plaintiffs are therefore at this stage estopped from raising the grounds that no consent for transfer was ever given by Sohan Singh.
As per facts proved on record, consideration amount of Rs. 11,824/- for the suit plot was paid by Sohan Singh to the Society. Defendant Contd...........-26-
no. 1 had not paid the said amount to Sohan Singh or the plaintiffs, though he had tried to deposit the said amount in the account of Sohan Singh without his knowledge or intimation to him, therefore removed from his account. The issue of transfer of suit plot was decided by Sohan Singh and defendant no. 1 and it was for the parties to show what was their arrangement in this respect. No material on this aspect is available on record.
Accordingly, issue no. 8 is decided in favour of defendant no. 1.
17. Issue no. 9 :-
Suit plot was alloted in favour of Sohan Singh on 14/01/52 vide Ex. P-20 and possession was given to him for construction of the suit land. As per the agreement in case of default in regard to terms and conditions, the Society could repossess the plot and pay compensation or interest as assessed in the circumstances of the case. It is not the case of the defendants that Society continued to hold possession of the suit plot and Sohan Singh was merely given an allotment letter. The Society also did not repossess the plot and in fact allowed transfer of land in favour of defendant no. 1 and in 1959 confirmed the same. The said transfer clearly shows that the possession of the suit plot was given to Sohan Singh.
Accordingly, the issue is decided in favour of the plaintiff.
18. Issue no. 10, 11, 12 , 13 & additional issue no. 1 :-
Defendant no. 1 states that Sohan Singh could not construct and therefore had requested him to purchase the plot. In pursuance to this letter for transfer of plot in favour of defendant no. 1 was addressed to the Society. Society allowed the transfer and later in 1959 when he completed construction agreed to execute sale deed in his favour. Sale deed was executed on 03/12/60. Plaintiffs on the other hand state that initial request of transfer of land by Sohan Singh was abandoned and finally not acted by the Contd...........-27-
parties. Sohan Singh therefore constructed on the suit land and conveyed the completion of construction in 1959 to the Society. Sohan Singh requested for sale deed in his favour but came to know that fraud had been played on him and by collusion a void sale deed had been executed in favour of defendant no. 1.
In the year 1949 Nathuram Co-operative Housing Society was formed. Sohan Singh Vide Ex. P-19 in 1950 applied for membership. Vide Ex. P-20 on 14/01/52 the suit plot was alloted in favour of Sohan Singh with the condition that sale deed would be executed on completion of construction. Vide Ex. P-22 Society conveyed that Sohan Singh should construct at an early date. Vide Ex. P-25 Sohan Singh asked for statement of accounts from the Society and stated that he was not in a position to construct immediately. Vide Ex. P-26 Society stated to Sohan Singh his that accounts were being sent and asked for construction at an early date. Vide Ex. P-26A details of accounts of Sohan Singh were sent by Society. Vide Ex. P-28 dt. 04/10/54 Sohan Singh requested Society to transfer the plot in the name of his nephew Gurbax Singh (defendant no. 1). Vide Ex. P-32 membership of defendant no. 1 with Society was accepted. Vide Ex. P-8 the working committee of the Society agreed to transfer the plot to defendant no. 1 on request of Sohan Singh. Vide Ex. P-30 Society conveyed their decision of accepting the transfer in favour of defendant no. 1 to Sohan Singh. Vide Ex. P-31 Defendant no. 1 submitted the arrears in regard to the suit land and requested for transfer of plot. Vide Ex. P-34 and Ex. D2/14 Society had intimated Sohan Singh that the arrears has been paid by defendant no. 1 and Sohan Singh had paid the initial consideration amount of the suit plot. The Society also conveyed that as far as they were concerned defendant no. 1 was the allotee. Vide Ex. P-9 Society asked for ascertainment of degree of Contd...........-28-
relationship between Sohan Singh and defendant no. 1. Ex. P-38 is the letter whereby resolution of waiving the condition of blood relation was sent to Sohan Singh. Ex. P-41 and Ex. D2/1 reveal that the general meeting had expressed their desire that the construction on the plot should be carried out at an early date and no extension was to be granted. Vide Ex. P-11 Sohan Singh had objected for transfer of plot in favour of Gurbax Singh. But this letter also shows that the construction on suit land was carried out by Sobha Singh. Ex. P-1 is the copy of the objections and claim filed by Sohan Singh before the Arbitrator and Ex. P-2 is the reply filed by the Society therein.
Sohan Singh had himself requested for the transfer of his plot to defendant no. 1 and conveyed to the Society that defendant no. 1 was his nephew. Society on his request had agreed to transfer the plot. Plaintiffs state that vide Ex. P-9 Resolution dt. 28/11/54 Society had conveyed that before transfer could be confirmed degree of relationship between Sohan Singh and defendant no. 1 was to be confirmed. This showed that transfer was not accepted. Further according to them all correspondences continued to be addressed in the name of Sohan Singh which confirms his entitlement. Here it is important to note that plaintiffs are relying on the stand of the Society of not conveyed him the transfer in favour of defendant no. 1 but the Society vide Ex. P-34 and Ex. D2/14 had supplied the details of the amount paid by Sohan Singh and defendant no. 1 and conveyed that as far as they were concerned defendant no. 1 was the allotee. Further agreement between Sohan Singh and defendant no. 1 had been conveyed to the Society which was being processed but interse. It was for Sohan Singh to prove what was his real intention in regard to transfer of plot. There is no communication which can show that he had revoked his intention to transfer plot to defendant no. 1. Plaintiffs cannot take advantage of procedural irregularities to wriggle out of Contd...........
-29-their promise. Society had also relaxed the condition of transfer only to blood relations and had included friends and relatives in the transfer ambit the said letter is Ex. P-38.
The second aspect relates to confirmation of transfer of plot in favour of defendant no. 1. On 04/10/54 transfer request by Sohan Singh was sent. Vide Ex. P-30 Society accepted the request to transfer the plot to defendant no. 1. Vide Ex. P-52 dt. 11/03/59 defendant no. 1 conveyed to the Society that he had constructed on the suit plot and therefore sale deed be executed. Vide Ex. P-54 Society accepted the request and agreed to execute sale deed which was executed on 03/12/60. The transfer in favour of defendant no. 1 was therefore completed on 03/12/60.
The third aspect is as to who had constructed on the suit land. Plaintiffs claim that Sohan Singh had constructed on the suit land. Plans were sanctioned by him and money was also invested by him. They also claim that Sobha Singh was constructing on behalf of Sohan Singh and material and money from the partnership business was utilized for construction. Defendant no. 1 on the other hand states that Sobha Singh his father had constructed on the suit plot from his money and on his behalf.
It is clear from evidence and documents on record that Sohan Singh was never in actual physical possession of the suit land. According to him, Sobha Singh close friend was entrusted the care and management of the plot. His only contention is that construction was carried on his behalf which is also clear from Ex. P-1, the claim filed by Sohan Singh before the Arbitrator. For the purpose they claim that funds and material of partnership firm were used. In this regard to contents of letter Ex. D2W3/3 dt. 08/01/60 written by G.S. Banga to Sohan Singh are important. G.S. Banga was a partner in their partnership firm and was looking after the management of the Contd...........
-30-firm. He had categorically stated that Sohan Singh was mistaken to presume that material or money of partnership was being used in construction of the suit plot. To this letter Sohan Singh replied vide Ex. D2W3/7 dt. 11/02/60 expressing his apology to Mr. Banga and states that he had referred to the fact of use of money and material of partnership firm for construction on suit land only on basis of his impression he had gathered. Details of accounts from 01/04/49 till 31/12/59 were also supplied to him. These two letters clearly establish the fact that construction was not carried out by Sohan Singh and also that no material or money from partnership firm was utilized for construction on the suit land. Further to substantiate their plea defendant no. 1 has proved on record the statement of wealth tax and income tax assessments Ex. PW4/1 to Ex. PW4/12 where he has shown the amount spent for construction on the suit plot. On the other hand plaintiffs have neither shown the details of amount spent on construction nor proved any income or wealth tax assessments of Sohan Singh to substantiate their plea. It is also to be kept in mind that Sohan Singh was maintaining accounts as stated by plaintiff's witness. Therefore it is be presumed that in absence of production of accounts adverse inference is to be drawn against the plaintiff.
In view of the totality of evidence and documents on record it is proved that construction on suit land was carried out on behalf of defendant no. 1 out of his contribution.
Plaintiffs have also claimed that the transfer in favour of defendant no. 1 vide sale deed dt. 03/12/60 was fraudulent. For this purpose they claim that once plea of transfer was abandoned, there was no occasion for the Society to reopen the issue of transfer and without conveying the said intention to Sohan Singh enter into a sale deed conveying his property to defendant no. 1. It is further contented that entire consideration amount was Contd...........
-31-paid by Sohan Singh and defendant no. 1 has not paid the said amount. Society vide Ex. P-30 & P-8 had conveyed their decision of acceptance of transfer in favour of defendant no. 1 to Sohan Singh. Vide Ex. P-31 defendant no. 1 had cleared the outstanding arrears of the suit land and vide Ex. P-34 & Ex. D2/14 Society had conveyed to Sohan Singh the details of amount paid by him and defendant no. 1 and also conveyed their acceptance of transfer in favour of defendant no. 1. Thereafter, Resolution of waiving the strict condition of blood relation transfer, through Ex. P-38 was also conveyed to Sohan Singh. All through from 1954 when initial request for transfer to defendant no. 1 was made by Sohan Singh and till 1960 when sale deed was executed, Sohan Singh had been kept informed by the Society. Further at no point of time Sohan Singh had ever revoked his intention to transfer plot to defendant no 1. No letter in this regard was ever addressed to Society, defendant no. 1 or by Society to Sohan Singh. Once Sohan Singh had himself represented defendant no. 1 as his nephew and asked for transfer of plot to him, it was for Sohan Singh to show that he had taken steps to undo his intention. He therefore cannot claim violation of rules as he was himself was a party to the said violation, if any. The Society had merely accepted his request to transfer plot to defendant no. 1, therefore there can be no presumption of fraud in the said transaction.
The construction in the suit land was completed in the year 1959 and the property was also rented out to Newzealand High Commission till 1964. The Society and defendant no. 1 or Sohan Singh did not conceal any facts. Fraud is an exercise whereby there is deceivement and concealment. But in the present case Sohan Singh was well aware of the factum of the possession, construction and process of transfer in favour of defendant no. 1.
Fraud has to be substantiated in clear terms, which in any case is not visible from the facts and documents available on the file.
Contd...........
-32-Accordingly, issue no. 10, 11, 12, 13, & additional issue no. 1 are decided in favour of defendant no. 1 and against the plaintiff.
19. Issue no. 14 & additional issue no. 2:-
In view of the finding on other issues, plaintiffs are not entitled to claim mesne profits or possession in respect of the suit plot.
Accordingly, issue no. 14 and additional issue no. 2 are decided against the plaintiffs.
20. Additional issue no. 3:-
Plaintiffs had paid the allotment amount of Rs. 11,824/- to the Society as per agreement dt. 14/01/52 this fact is not disputed. The only dispute is that this was not the full consideration As per defendant no. 1 certain other sums were paid by him and therefore on 03/12/60 the total sale consideration was Rs. 14,086/- which was paid by him.
As per statement of account in respect of suit plot Ex. P-26A and Ex. D-1, it is clearly mentioned that other amounts except the amount paid by Sohan Singh were towards developmental and other ancillary charges. The initial amount paid by Sohan Singh was the consideration amount which is also correct as per Ex. P-20 agreement dt. 14/01/52.
Accordingly, this issue is decided in favour of the plaintiff.
21. Relief:-
In view of the above said findings the suit of the plaintiff is dismissed. File of suit no. 235/66 be sent back. File be consigned to Record Room.
Announced in the open court (DINESH BHATT) on 14/01/10 ADJ/Delhi/14/01/10