Delhi District Court
Briefly Stated The Facts Of The Present ... vs . on 20 March, 2015
IN THE COURT OF SHRI A.K. AGRAWAL CIVIL JUDGE01 ( WEST),
TIS HAZARI COURTS, DELHI
Ex. No. 30/13
Jaswant Singh
................Decree Holder
vs.
Ranjit Singh
................Judgment Debtor
ORDER
1. Briefly stated the facts of the present case that an exparte judgment was passed by the Ld. Predecessor of this court vide his Order dated 05.03.2013 thereby directing the defendant to hand over the possession of suit property and also to pay the arrears of rent/mesne profits. In the said suit, the plaintiff claimed himself to be the landlord/owner of the suit property at WZ2A, Rattan Park, Netaji Market, Najafgarh Road, Basai Darapur, New Delhi (hereinafter referred to as suit property) which he purchased from the defendant himself. Thereafter a rent agreement was executed by the plaintiff in favour of defendant for a period of five years with respect to the suit property. However since the defendant failed to make regular payments of rent, the plaintiff terminated his tenancy vide legal notice dated 16.05.2011 U/s 106 of Transfer of Property Act.
Ex. No. 30/13 Jaswant Kaur v Ranjit Singh 1/8 Thereafter this civil suit was filed by plaintiff for eviction of defendant. The defendant was however proceeded exparte in the said suit and subsequently, the suit was decreed in favour of plaintiff.
2. During execution proceedings, one Sh. Surjit Singh (the brother of Judgement Debtor), filed objections against the execution claiming himself to be owner of the suit property. It was submitted on behalf of objector that he was the real owner of the suit property and was in possession of the same since the year 1975. Further electricity connection of the premises was in the name of objector and relinquishment deed was also executed by legal heirs of deceased Wazir Singh in favour of objector. It was stated that the JD being the real brother of objector, was permitted as a licensee to reside in the half portion of the suit property in order to run his business and maintain his family.
3. Later on JD suffered losses in the business and so with a view to grab the property of objector, he in conspiracy with Smt. Jaswant Kaur (Decree Holder herein), executed forged and fabricated documents in favour of Smt. Jaswant Kaur. A forged rent agreement was also executed in furtherance of fraud despite the fact that JD could not have sold the suit property to the DH and DH could not have legally executed the rent Ex. No. 30/13 Jaswant Kaur v Ranjit Singh 2/8 agreement without any title. On the basis of said forged document, plaintiff filed the aforesaid suit and procured a decree in her favour. Accordingly, the objector has prayed that the decree was nullity as the same was obtained by way of fraud. So, by way of objections, it is prayed that the court declare that objector cannot be vacated or dispossessed from the suit property in execution of decree passed in the aforesaid suit and also to hold that the decree passed against the JD was unexecutable as the same was obtained in collusion. Further declare that the documents procured by DH were also illegal and void and did not confer any right, title or interest in favour of DH, among other reliefs.
4. Reply was filed by the DH stating that the application was not maintainable under the provisions of Order 21 Rule 97, 98 and 101 of CPC in the facts and circumstances of the case. It was further stated that the application was barred by the principle of res judicata as the issue of purported title and possession of the objector herein was also adjudicated by the Ld. Predecessor of this court vide order dated 03.09.2011 in the main suit bearing C.S No. 269/11, while deciding an application U/o 1 rule 10 CPC moved by the objector himself.
5. It was further stated that while deciding the said application, the Ex. No. 30/13 Jaswant Kaur v Ranjit Singh 3/8 Ld. Predecessor of this court specifically observed that neither the objector was able to establish his title in respect of suit shop through any cogent documentary evidence nor established his physical possession over the same. The objector did not prefer any appeal/ revision against the said Order and the same has attained finality and is binding upon the objector. It was further denied that the objector was the owner or was in possession of the suit property. It was also denied that the objector had permitted the JD to reside in the suit property or its half portion thereof so as to run his business and to maintain his family. Other averments made in the objection application of objector were specifically denied by the DH and prayer was made for the dismissal of objections.
6. I have heard arguments advanced by Ld. counsels for both the parties and perused the record.
7. At the outset it is pertinent to mention that an executing court cannot go behind the decree nor sit in appeal against its own judgment and decree, in an execution proceedings. In the objection filed by the objector, he has claimed himself to be the owner of the suit property. Moreover, he also affirms that he is in possession of the suit property and accordingly since the decree was obtained by way of collusion and fraud, the same Ex. No. 30/13 Jaswant Kaur v Ranjit Singh 4/8 cannot be executed. As far as the above averments are concerned, the order dated 19.01.2012 passed by Ld. Predecessor in the main suit, is highly relevant. Said order was passed while disposing of application U/o 1 Rule 10 CPC filed by Sh. Surjit Singh ( the objector herein). In the said application, the objector sought to be impleaded as party in the main suit claiming that he was the necessary party being the owner and in possession of the suit property for the last 35 years. The same plea has been made in the present objection. However the said application was dismissed by Ld. Predecessor of this court holding that the applicant was neither necessary party nor the proper party. The said order has attained finality and later on, an exparte decree was passed against the defendant ( the JD herein).
8. In para 5 of the above order, it is specifically stated that the applicant did not file any document on record to show that he was the owner of the suit property nor any document to show that he was still in possession of the suit property. The objector herein did not challenge the aforesaid order before any appellate court. The objector was fully aware of the implications of not challenging the said order in view of categorical finding of the court that he was not in possession of the suit property. So, the objector did not take any steps to safeguard his so called interest in the suit property despite being fully aware of the facts and circumstances of the Ex. No. 30/13 Jaswant Kaur v Ranjit Singh 5/8 case and the averments made in the plaint. This court being an executing court cannot arrive at a contrary finding that the objector was in possession of the suit property and not the JD.
9. As regards the title of the suit property is concerned, the same was not an issue in the main suit. If objector wants to prove his title upon the suit property, he could have filed a separate suit for declaration against the DH herein. Further the objector could have also filed a suit seeking declaration that the Judgment and Decree dated 05.03.2015 be also declared as null and void as the same had been attained by collusion or fraud, however no legal remedy has been availed by the objector despite the same being available to him. The objector also did not file any suit seeking declaration that title documents purportedly executed by the JD in favour of DH be declared as null and void. This gives an impression that the objector was merely looking for an opportunity to somehow deny the fruits of Judgment and Decree to the DH by raising objections in the execution proceedings instead of filing a separate suit.
10. At this stage it is also worth mentioning that in his application U/o 1 Rule 10 CPC and as noted by Ld. Predecessor in his Order dated 19.01.2012, the applicant (objector herein) had stated that the defendant Ex. No. 30/13 Jaswant Kaur v Ranjit Singh 6/8 ( JD herein) had been missing for last three years. So, the documents filed by plaintiff were false, fabricated and concocted. The said contention of the applicant was rejected by the Ld. Predecessor as the documents in favour of plaintiff had been executed in December, 2010. However in the present objection, the objector states that the JD was in collusion with the DH and both of them in conspiracy with each other, have prepared forged and fabricated property documents. This shows that either submission made by objector in the application U/o 1 rule 10 CPC was false or submission made in present objections is incorrect. It is obvious that the objector is taking contradictory pleas just in order to mislead the court.
11. Lastly the judgment of Hon'ble Supreme Court in case titled as 'Anathula Sudhakar v P. Buchi Reddy ( Dead ) by LRs & Ors. AIR 2008 SC 2033, in fact supports the case of DH instead of objector. In the said judgment, the Hon'ble Supreme Court has categorically held that where complicated questions of fact and law relating to title are involved, the appropriate remedy is a comprehensive suit for declaration of title. In the main suit of the present case, no such issue was involved. So if the objector wants himself to be declared as owner and seeks relief to hold that the decree passed against the JD was unexecutable as the same was obtained in collusion or by fraud, or that the documents procured by DH Ex. No. 30/13 Jaswant Kaur v Ranjit Singh 7/8 were also illegal and void and did not confer any right, title or interest in favour of DH, he is required to file a separate suit. Moreover, he can also recover possession of suit property from the DH later on, if he succeeds in the said suit.
12. In view of the aforesaid observations and findings and also in view of Order dated 19.01.2012 of the Ld. Predecessor of this court, the objections filed by objector are found to be unmaintainable and the same stands dismissed. The objector is however at liberty to seek appropriate legal remedy against the DH as per law, by way of filing a separate suit, if he so desires.
Announced in the open court ( A.K. Agrawal)
today on 20.03.015 Civil Judge 01 ( West)/Delhi
Ex. No. 30/13 Jaswant Kaur v Ranjit Singh 8/8