Delhi District Court
Jamia Millia Islamia vs Mohd. Abu Fazal Farooqui on 11 November, 2013
IN THE COURT OF SH. VISHAL SINGH, CIVIL JUDGE9
CENTRAL: DELHI
SUIT NO. 331/13/86
UNIQUE ID NO. 02401C0443142002
IN THE MATTER OF:
JAMIA MILLIA ISLAMIA
THROUGH ITS REGISTRAR,
JAMIA NAGAR, OKHLA,
NEW DELHI - 110 025. . . . PLAINTIFF
VERSUS
MOHD. ABU FAZAL FAROOQUI
S/O. MOHD. ABDUL BARKET,
R/O. H. NO. 332/5,
BATLA HOUSE, OKHLA,
NEW DELHI - 110 025. . . . DEFENDANT
Date of Instt: 17/05/1986
Date of Reservation of Judgment: 11/10/2013
Date of Judgment: 11/11/2013
SUIT FOR DECLARATION AND SETTING ASIDE A DECREE.
JUDGMENT
Plaintiff is an educational and research University. The suit has been instituted through its Registrar Professor M.N. Menai. The present suit has its roots in a suit which was earlier instituted by the plaintiff against the same defendant in respect of the same property. Thus, it becomes necessary to delve into what transpired in the earlier suit.
Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 1
A suit no. 74/1983 was filed by the plaintiff against defendant Abu Fazal Farooqui for the relief of permanent injunction to restrain the defendant from committing trespass or encroachment on any part of the land of plaintiff as specifically shown in site plan attached with the plaint and forming part of Khasra No. 227, 330 and 232 (interpolated in the record as khasra no. 338/227, 235 and
232), Village Abadi of Batla House, Tehsil Mehrauli, Delhi.
The defendant had filed his written statement to the said suit and took various objections, including the objection that he was already in possession of the land in question.
Four issues were framed in the said suit on 01/11/1983 and the case was fixed for plaintiff's evidence. On 16/04/1984, the parties reported for compromise in the court. The court fixed the recording of compromise for 17/04/1984. On 17/04/1984, the defendant filed an application under Order 6 Rule 17 CPC for permission to amend the written statement. The application was allowed as uncontested by the plaintiff. In the amended written statement, the defendant took the plea of ownership over the land in question by way of adverse possession. In addition to the defences raised in the amended written statement, the defendant filed the counter claim to the suit to seek the declaration that he became the owner of the land in question by way of adverse possession. On the same date i.e. 17/04/1984, Mr. C.B.Thanai (since expired), legal representative of plaintiff, gave the statement of withdrawal of the suit and stated that he did not want to file reply to the counter claim of the defendant.
Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 2
On 18/04/1984, Mr. C.B.Thanai gave another statement in the capacity of Legal Advisor of the plaintiff that he did not want to file any written statement to the counter claim. He further gave the statement that he had no objection if the counter claim of the defendant is decreed. The court fixed the suit for 21/04/1984 for passing the orders.
The order passed by the court on 21/04/1984 is reproduced as under:
"In view of the statement of Sh. C.B.Thanai, Legal Advisor of the plaintiff, the suit of the plaintiff is hereby dismissed as withdrawn.
2. The defendant in his written statement has raised a counterclaim thereby seeking declaration of his ownership over the property in dispute. I have gone through the said claim. Shri Thanai has also made a statement on 18/04/1984 that the plaintiff does not intend to file any written statement to the said counterclaim. He has also stated that the plaintiff has no objection if the counterclaim is decreed.
3. In view of the aforesaid facts, the counterclaim of the defendant is hereby decreed and it is hereby declared that the defendant has become owner of the property comprised in Khasra No. 338/227, 235 and 232 situated in village Okhla by way of adverse possession. Decree sheet be prepared accordingly and the file be consigned to the record room. The parties shall bear their own costs.
Announced in open court. 21/04/1984."
The decree drawn up by the court in pursuance of the order dated Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 3 21/04/1984 is as follows:
"The counter claim is hereby decreed and it is hereby declared that the defendant has become owner of the property comprised in Khasra No. 338/227, 235 and 232, situated in village Okhla by way of adverse possession. The parties shall bear their own costs."
With this background, the present suit was instituted by plaintiff University against Mohd. Abu Fazal Farooqui as defendant no.1 and Mr. C.B.Thanai, Advocate (since expired), as defendant no.2, on 17/05/1986. As per plaint, defendants no. 1 and 2 acted in collusion without knowledge of the plaintiff University, resulting in the order and decree dated 21/04/1984, which caused wrongful loss to the plaintiff University and wrongful gain to defendants. Plaintiff submitted that the pleadings of parties in suit no. 74/1983 were tempered by single person and the khasra numbers 227, 330 and 232 were interpolated in the record as khasra no. 338/227, 235 and 232, Village Abadi of Batla House, Tehsil Mehrauli, Delhi. The interpolation in the khasra numbers were done as forgery because there was no application for amendment of the pleadings by either party in this regard, neither was there any order of the court to allow the change of khasra numbers in the pleadings. The interpolations in the pleadings do not bear the signature of Presiding Officer, the parties to the suit or their counsels.
Plaintiff asserted that defendants played fraud upon the court and deceitfully obtained the order and decree dated 21/04/1984.
Plaintiff asserted that its Legal Advisor i.e. defendant no. 2 Mr. Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 4 C.B.Thanai, Advocate (since deceased), kept it in the dark about the proceedings of the suit and caused wrongful loss of property to it. Plaintiff claimed that the vakalatnama in suit no. 74/1983 was signed by one Ms. Kumkum, advocate, and not by Mr. C.B.Thanai, advocate. Therefore, Mr. C.B.Thanai, Advocate, acted without authority when he withdrew the suit and conceded the counter claim through statements dated 17/04/1984 and 18/04/1984.
Plaintiff further submitted that the land in question i.e. Khasra Nos. 227, 330 and 232, Village Okhla, New Delhi, were acquired by government under Sections 4 and 6, Land Acquisition Act, through, inter alia, Award dated 24/02/1984. Due to this reason also, the court could not have decreed the counter claim of the defendant through order dated 21/04/1984.
Plaintiff claimed that through order dated 21/04/1984, the court could not have decreed the counter claim of the defendant because necessary ingredients of the ownership by way of adverse possession were not pleaded by defendant no.
1. In fact, the counter claim was beyond the pecuniary jurisdiction of the court.
As per plaint, the decree dated 21/04/1984 was required to be compulsorily registered under the provisions of the Registration Act, in absence whereof, the decree is inoperative, ineffective and is a nullity.
Plaintiff asserted that it came to know about the order and decree dated 21/04/1984 when it was published in the newspaper 'Current' at page 12 on 01/02/1986. On that page, the entire order dated 21/04/1984 was published. Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 5
The plaintiff has sought following reliefs in the suit:
(i) to pass a decree in favour of the plaintiff University against the defendant setting aside the Orders and Decree dated April 21, 1984 obtained by fraud by the defendants from the court of Sh. R.C. Yaduvanshi, SubJudge First Class, Delhi, in Suit No. 74 of 1983 and original position before filing of the said suit be ordered to be maintained/restored; and
(ii) to pass a decree in favour of the plaintiff University against the defendants declaring that:
(a) the orders passed by Sh. R.C.Yaduvanshi, Sub Judge First Class, Delhi in Suit No. 74 of 1983 are ineffective, inoperative, unlawful, without any force of law, illegal, and void abinitio and a nullity; and / or
(b) the rights of the plaintiff University were never affected by passing of the orders and decree dated April 21, 1984 passed in Suit No. 74 of 1983 and the original position of the plaintiff University prior to filing of the said suit, is unaltered; and / or
(c) the corrections / interpolations made in the entire pleadings in the said Suit NO. 74 of 1983 were made illegally by the defendants in collusion with each other made in the same stroke and are not binding upon the plaintiff University; and / or
(d) the defendant no. 2 was not empowered authorized / competent to make the statements dated 17th and 18th April, 1984 in Suit No. 74 of 1983 and were made without any instructions from the plaintiff University and adverse to Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 6
their interest, which the defendant no. 2 was bound to protect both morally and legally; and / or
(e) the notice of the application dated nil under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure in the said Suit No. 74 of 1983 was never issued / served on the plaintiff University and therefore, the order allowing the application for amendment as well as the counter claim raised in the amended written statement is illegal and void abinitio; and / or
(f) the decree dated 21/04/1984 passed by Sh. R.C.Yaduvanshi, Sub Judge First Class, Delhi in Suit No. 74 of 1983 is inoperative and ineffective and a nullity for want of registration under the Registration Act, (No. XVI of 1908); and / or
(g) the plaintiff University to be the owners of the land in suit comprising in Khasra No. 232, 235 and 338/227 situated in the revenue estate of village Okhla, New Delhi (Better shown in yellow in the accompanying site plan and detailed in scheduleI to the plaint);
(iii) to pass a decree of permanent injunction in favour of the plaintiff University against the defendants restraining them, their agents and / or their servants from receiving any amount by way of compensation for acquisition of the land in suit;
(iv) to award the costs of the suit in favour of the plaintiff against the defendants; and to award the special costs under Order 20A CPC in favour of the plaintiff against the defendants;
Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 7
(v) to pass such other further order or orders, as this Court may deem just and equitable in the interest of justice in favour of the plaintiff University against the defendants.
In answer to the plaint, defendant no. 1 filed his written statement and took the objection that the suit is false and misconceived. He took the objection that the suit is not maintainable due to misjoinder of necessary party because defendant no. 2 Mr. C.B.Thanai was neither necessary nor proper party in the present suit. He took the objection that Mr. M.N. Menai, Registrar had no right, title, interest or locus standi to file the present suit. He took the objection that the suit is barred by limitation period. Defendant no. 1 asserted that he was already in possession of land and had became its owner by adverse, hostile and continuous possession of more than 12 years, which was decreed by judgment and decree dated 21/04/1984. Defendant asserted that the decree passed by the court neither effected a sale nor a transfer to which Delhi Land (Restriction on Transfer) Act, 1972, is applicable.
Defendant no. 1 further objected that the validity and legality of the decree dated 21/04/1984 had to be challenged by filing the appeal and not by filing a suit for declaration. Since no appeal was preferred against the decree dated 21/04/1984 by the plaintiff, it attained finality and cannot be challenged in the present proceedings.
Defendant no. 2 Mr. C.B.Thanai also filed his written statement to the suit but expired during the course of trial. The suit was dismissed as abated Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 8 against defendant No. 2.
Upon the completion of pleadings, the following issues were framed on 05/03/1987:
1. Whether the decree passed in suit No. 74/83, on April 18, 1984 was a result of fraud and collusion between the defendants and was a nullity?
2. Whether description/identity of the property in suit No. 74/83 was altered and property in suit was substituted by tempering with the judicial record?
3. Whether Mr. C.B.Thanai, defendant No. 2, was competent to enter into a compromise on behalf of the plaintiff in suit No.74/83?
4. Whether the decree in suit No. 74/83 requires registration? If so, its effect?
5. Whether the compromise entered into in S. No. 74/83 was violative of provisions of Order 23 Rule 3 CPC?
6. Whether the suit against defendant no. 2 was not competent? OPD2.
7. Whether the suit was barred for misjoinder of partiess? OPD1.
8. Whether Mr. M.N. Menai was competent to file the present suit?
9. Whether the suit was barred by time?
10. Whether the power of attorney executed by plaintiff in suit No. 74/83 had no operation on the counter claim of defendant no. 1 in that suit?
11. Whether the learned Subordinate Judge who decreed the counter claim in S. No. 74/83 had no pecuniary jurisdiction to decree the said counter claim?
12. Whether the jurisdiction of this court to try the suit was barred under Section 30 and / or 31 of the Land Acquisition Act?
Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 9
13. Whether this court has no pecuniary jurisdiction to try this suit?
14. Whether the decree passed in S. No. 74/83 on 18/04/1984 was a nullity in view of the provisions of Land (Restriction & Transfer) Act, 1972? In addition to the above mentioned issues, following legal issue was framed on 18/09/2013:
15. Whether the present suit is barred by provisions of Order 23 Rule 3A CPC and / or Section 34 Specific Relief Act, 1963? (OPD).
16. Relief.
Plaintiff examined three witnesses in support of its case. PW1 is Rizwan Latif Khan and PW2 is S.U. Khan, both Asstt. Registrar, Legal Cell of plaintiff University. PW3 is Naveen, Record Keeper, Deptt. of Delhi Archives, office of SubRegistrarI, Kashmiri Gate, Delhi.
Defendant no. 1 Mohd. Abu Fazal Farooqui deposed as DW1 in support of his defence. DW2 is Nawab Singh, Halka Patwari, SDM Office, Tehsil Defence Colony, Saket, New Delhi. DW3 is Chatar Pal Singh, Office Kanungo, Record Room, Tehsil Mahrauli, New Delhi. DW4 is Ramesh Kumar, Patwari, Office of Sadar Kanungo, Revenue Office Building, Tis Hazari Courts, Delhi. DW5 is A.A. Naiyar, Translator, Chamber No. 28, Typist Block, Civil Side, Tis Hazari Courts, Delhi.
Now my findings on the issues are as under: Issue No. 1:
Whether the decree passed in suit No. 74/83, on April 18, 1984 was a Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 10 result of fraud and collusion between the defendants and was a nullity? Issue No. 2:
Whether description/identity of the property in suit No. 74/83 was altered and property in suit was substituted by tempering with the judicial record?
In the plaint, the plaintiff has alleged that someone forged the court record i.e. the pleading of the parties in suit no. 74/83, to the detriment of interest of the plaintiff. The plaintiff has also alleged that the order and decree dated 21/04/1984 in suit no. 74/83 was a result of collusion between the parties. By committing forgery of the court record and entering into collusion, the defendants played fraud upon the court and obtained the order and decree dated 21/04/1984 in suit no. 74/83, which resulted in wrongful loss to the plaintiff and wrongful gain to defendant no. 1.
Issues no. 1 and 2 were framed by the court in this suit on the basis of the above said allegations of the plaintiff.
PW2 S.U. Khan made deposition regarding forgery and collusion. In the cross examination, DW1/defendant Mohd. Abu Fazal Farooqui admitted that the pleadings Ex. DW1/P1 to Ex. DW1/P3 were filed by him in suit no. 74/83. He also admitted that the plaint Ex. DW1/P4 was filed by the plaintiff University in suit no. 74/83. DW1 replied that he did not remember if the corrections (interpolations) marked at points A,B,C,D,E,F,G in the pleadings of suit no. 74/83 were made by him. He denied the suggestion that he colluded with counsel of plaintiff University (defendant no. 2 in this suit) and obtained a collusive decree Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 11 dated 21/04/1984 in suit no. 74/83. He admitted that on the basis of decree dated 21/04/1984, he got the suit land mutated in his favour in the revenue records. He further admitted that before passing of the said decree, his name was not entered in the ownership column in the revenue records. He denied the suggestion that the decree was obtained by playing fraud upon the court.
I have seen the record of suit no. 74/83, titled as "Jamia Millia Islamia Vs. Abu Fazal Faruqi". The title page of the plaint in the said suit describes the suit property in paragraph no. 2 as follows: "the land situated in khasra no. 227, 230 and 232 situated in revenue village of Batla House, Tehsil Mahrauli, Delhi, is also owned by plaintiff and forms part of the complex". There is no interpolation in this paragraph.
As per paragraph no. 3 of the plaint of the said suit, "he (the defendant) has developed an unauthorized residential colony on his own land and is trying to encroach upon the land situated in khasra no. 227, 230 and 232 (interpolated as 338/227, 235 and 232) of the village abadi and owned by the plaintiff University as the same is situated adjacent to his portion of the land".
In the prayer clause of the plaint in the said suit, the plaintiff sought the relief of permanent injunction to restrain the defendant from committing any trespass or encroachment on any part of the land of the plaintiff University, more specifically shown in site plan attached with the plaint and forming part of khasra no. 227, 230 and 232 (interpolated as 338/227, 235 and 232) of the village abadi of Batla House, Tehsil Mahrauli, Delhi.
Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 12
The interpolations evoke utmost suspicion because of following reasons:
a) the interpolations were made by single hand in the pleadings of both the parties after the filing of written statement and amended written statement of the defendant.
b) the interpolations were made during the course of trial of the suit, without any application from either party for amendment of the pleadings in this regard. There is no order of the court to authorize the change of khasra numbers in the pleadings of the parties.
c) the site plan filed with the plaint depicts only khasra nos. 227, 230 and 232. Neither the original site plan was amended nor amended site plan was filed by the plaintiff to show that khasra nos. 338/227, 235 and 232 were the subject matter of the suit. The defendant did not file any site plan.
d) the courts tend not to allow any interpolation in the original pleadings once they have been filed in the court. Any amendment in the pleadings, even if to correct the technical description of the suit property, has to be done through filing of amended pleadings, that too upon filing of proper application and through order of the court.
The vakalatnama Ex. PW2/X3 for plaintiff in suit no. 74/83 was signed only by one Ms. Kumkum, Advocate. The plaint in the said suit was filed by plaintiff through Ms. Kumkum, Advocate. The vakalatnama bears the caption "C.B. Thanai & Co., Advocates" but it was not signed by Mr. C.B. Thanai, Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 13 Advocate. Thus, Mr. C.B. Thanai, advocate, did not personally assume the role of counsel for plaintiff University in suit no. 74/83.
On 17/04/1984, Mr. C.B.Thanai, advocate, gave the following statement in suit no. 74/83:
"I withdraw the suit of the plaintiff and the plaintiff has not to file any reply to the counter claim of the defendant. The parties be left to bear their own costs."
On 18/04/1984, Mr. C.B. Thanai, advocate, gave the following statement in suit no. 74/83:
"I do not want to file any written statement to the counter claim. I have no objection if the counter claim of the defendant is decreed."
It is palpable that on 17/04/1984 and 18/04/1984, Mr. C.B. Thanai, advocate, had abandoned the suit and withdrew it unconditionally. He also ceded the counter claim of the defendant. No compromise between the parties was recorded by the court. The suit was dismissed while counter claim was decreed. The plaintiff had lost its suit, and with it, all claims over the decreed property. On the other hand, the defendant became the owner of khasra no. 338/227, 235 and
232. The collusion between the defendant and Mr. C.B. Thanai, advocate, appearing for plaintiff in suit no. 74/83, is writ large. Why, otherwise, would an advocate appear in a case without authority, abandon the suit of the plaintiff and surrender to the counter claim of the defendant. No reason at all was assigned by Mr. C.B. Thanai, advocate, in his statement dated 17/04/1984 and 18/04/1984 as to Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 14 why was he withdrawing the suit of the plaintiff. Rather, the statement dated 18/04/1984 betrays that Mr. C.B. Thanai, advocate was acting for the defendant. He stated that he had no objection if the counter claim of the defendant was decreed.
An application for compromise was filed on 18/04/1984 in suit no. 74/83. This application was signed by defendant as applicant and Mr. C.B. Thanai, advocate, as counsel for plaintiff. The paragraph no. 3 of this application reads as follows: "that in view of the written statement filed by the defendant, the plaintiff has withdrawn his suit and has filed no reply to the counter claim and the counter claim of the defendant stands admitted. It is, therefore, prayed that the counter claim of the defendant be decreed. To leave the parties to bear their own costs".
The application betrays collusion and not compromise. In fact, no compromise was recorded by the court.
It does not matter that no civil or criminal complaint was filed by the plaintiff against Mr. C.B. Thanai, advocate, in any court or before the Bar Council to report his misconduct. The forgery committed in the pleadings of the parties and palpable collusion between the defendant and Mr. C.B. Thanai, advocate, in suit no. 74/83, are sufficient reason to declare the order and decree dated 21/04/1984 as null and void, having been obtained by fraud and collusion.
It is the settled proposition of law that a judgment or decree obtained by playing fraud upon the court is a nullity and non est in the eyes of law. (S.P. Chengalvaraya Naidu Vs. Jagannath, AIR 1994 Supreme Court 853). Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 15
Issues No. 1 and 2 are decided in favour of the plaintiff and against the defendant.
Issue No. 3:
Whether Mr. C.B. Thanai, defendant No. 2, was competent to enter into a compromise on behalf of the plaintiff in suit No.74/83? Issue No. 5:
Whether the compromise entered into in S. No. 74/83 was violative of provisions of Order 23 Rule 3 CPC?
Issue No. 15:
Whether the present suit is barred by provisions of Order 23 Rule 3A CPC and / or Section 34 Specific Relief Act, 1963? (OPD).
Issues no. 3, 5 and 15 are based upon the assumption that decree dated 21/04/1984 in suit no. 74/83 was a compromise decree. To gain clarity in this regard, order and decree dated 21/04/1984 need to be reproduced: Order dated 21/04/1984:
"In view of the statement of Sh. C.B. Thanai, Legal Advisor for the plaintiff, the suit of the plaintiff is hereby dismissed as withdrawn.
2. The defendant in his written statement has raised a counter claim thereby seeking declaration of his ownership over the property in dispute. I have gone through the said claim. Sh. Thanai has also made a statement on 18/04/1984 that the plaintiff does not intend to file any written statement to the said counter claim. He has also stated that the plaintiff has no objection if the counter claim is Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 16
decreed.
3. In view of the aforesaid facts, the counter claim of the defendant is hereby decreed and it is hereby declared that the defendant has become owner of the property comprised in Khasra No. 338/227, 235 and 232, situated in village Okhla by way of adverse possession. Decree sheet be prepared accordingly and the file be consigned to record room. The parties shall bear their own costs. Announced in open court on 21/04/1984".
The decree drawn up by the court in pursuance of order dated 21/04/1984 reads thus: "the counter claim of the defendant is hereby decreed and it is hereby declared that the defendant has become owner of the property comprised in Khasra no. 338/227, 235 and 232, situated in village Okhla by way of adverse possession. The parties shall bear their own costs".
Thus, the court did not record any compromise between the parties and simply dismissed the suit as withdrawn. The court also decreed the counter claim of the defendant and declared him as the owner of a certain property by way of adverse possession.
Issue no. 3 is meaningless in context of the presumed compromise. However, it can certainly be observed in reference to issue no. 3 that Mr. C.B. Thanai, advocate (now deceased) was not competent to make statement of withdrawal of suit and surrender to the counter claim in suit no. 74/83. The suit was not withdrawn by Mr. C.B. Thanai, advocate, in the capacity of counsel for plaintiff; it was withdrawn by him merely in the capacity of a legal advisor. It is Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 17 observed that a suit can be withdrawn either by the plaintiff itself, or its attorney holder upon instructions of the plaintiff, or by the counsel for plaintiff, who filed the vakalatnama. The suit cannot be withdrawn by a legal advisor without holding the power of attorney of the plaintiff and unless upon the specific instructions of the plaintiff. None of these conditions were fulfilled in this case.
The present suit is not barred by Order 23 Rule 3A CPC as decree dated 21/04/1984 was not a compromise decree. Rather, the decree was based upon collusion between defendant and Mr. C.B. Thanai, advocate, and obtained by playing fraud upon the court.
Regarding the objection of the defendant that the present suit is barred U/s. 34 Specific Relief Act, it need only be observed that the present suit has been filed by the plaintiff mainly for declaration of decree dated 21/04/1984 as null and void, as it was based upon fraud and collusion of the above said persons. The plaintiff need not have prayed for relief of possession of the suit property from the defendant in the present suit.
The right of ownership of the plaintiff over Khasra no. 338/227, 235 and 232, Village Abadi of Batla House, Tehsil Mehrauli, Delhi, was extinguished through order and decree dated 21/04/1984. Thus, the plaintiff is not entitled to sue for possession of the above mentioned property from the defendant till order and decree dated 21/04/1984 is declared null and void.
As noted above, DW1/defendant had admitted in cross examination that on the basis of decree dated 21/04/1984, he got the suit land mutated in his Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 18 favour in the revenue records. He further admitted that before passing of the said decree, his name was not entered in the ownership column in the revenue records.
The present suit is not chiefly about which party owns and possesses which part of the land; it is about whether the order and decree dated 21/04/1984 was a result of forgery of the court record and collusion between the defendant and Mr. C.B. Thanai (now expired).
Thus, the present suit is not barred by provisions of Order 23 Rule 3A CPC and / or Section 34 Specific Relief Act, 1963.
Issues No. 3, 5 and 15 are decided in favour of the plaintiff and against the defendant.
Issue No. 4:
Whether the decree in suit No. 74/83 requires registration? If so, its effect?
The decree dated 21/04/1984 in suit no. 74/83 did not require registration. Firstly, it was not a compromise decree. Secondly, the court record was tempered by some one to make the Khasra nos. 338/227, 235 and 232, Village Abadi of Batla House, Tehsil Mehrauli, Delhi, as the suit property and part of the pleadings.
Thus, issue no. 4 is decided in the negative.
Issue No. 6:
Whether the suit against defendant no. 2 was not competent? OPD2. The onus of proof of this issue was upon defendant No. 2 Mr. C.B. Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 19 Thanai, advocate. However, he has expired during the trial of the suit and the suit abated as against him.
The present suit is based upon the allegations that order and decree dated 21/04/1984 in suit no. 74/83 was result of forgery of court record and collusion between defendant and Mr. C.B. Thanai, advocate. The suit was maintainable against defendant no. 2 Mr. C.B. Thanai, when it was instituted.
Issue No. 6 is decided accordingly.
Issue No. 7: Whether the suit was barred for misjoinder of parties? OPD1.
The onus to prove this issue was upon defendant no. 1. In his written statement, defendant no. 1 took the objection that the suit is not maintainable due to misjoinder of necessary party because defendant no. 2 Mr. C.B.Thanai was neither necessary nor proper party in the present suit.
It is repeated here that the present suit is based upon the allegations that order and decree dated 21/04/1984 in suit no. 74/83 was result of forgery of court record and collusion between defendant and Mr. C.B. Thanai, advocate. There is no misjoinder of parties. Both the defendants were necessary and proper parties to the suit when it was instituted.
Issue No. 7 is decided accordingly.
Issue No. 8: Whether Mr. M.N. Menai was competent to file the present suit?
As per plaint, Professor Mr. M.N. Menai instituted the suit in the capacity of the Registrar of plaintiff University. The suit was instituted by a competent person.
Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 20
Issue No. 8 is decided accordingly.
Issue No. 9: Whether the suit was barred by time?
The present suit was filed on 17/05/1986 for the declaration of order and decree dated 21/04/1984 as null and void. The suit is within time.
Issue No. 9 is decided in favour of the plaintiff.
Issue No. 10:
Whether the power of attorney executed by plaintiff in suit No. 74/83 had no operation on the counter claim of defendant no. 1 in that suit?
The power of attorney i.e. vakalatnama executed by the plaintiff in favour of his counsel is for the purpose of the entire suit. The counter claim filed by the defendant in a suit is not registered separately and is considered as part of the same suit.
Thus, the power of attorney executed by plaintiff University in suit No. 74/83 was effective and operative for the purpose of counter claim of the defendant. However, it is observed here that since the power of attorney/vakalatnama executed by the plaintiff was not signed by Mr. C.B. Thanai, advocate, it conferred upon him no authority to make any representation to the court on behalf of the plaintiff.
Issue No. 10 is decided accordingly.
Issue No. 11:
Whether the learned Subordinate Judge who decreed the counter claim in S. No. 74/83 had no pecuniary jurisdiction to decree the said counter claim? Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 21
The pecuniary worth of Khasra Nos. 338/227, 235 and 232, Village Abadi of Batla House, Tehsil Mehrauli, Delhi, was not disclosed by either party in suit no. 74/83. No objection related to pecuniary jurisdiction of the court was taken by the plaintiff in suit no. 74/83. Hence, no objection related to pecuniary jurisdiction of the court can be taken in this suit.
Issue No. 11 is decided against the plaintiff.
Issue No. 12:
Whether the jurisdiction of this court to try the suit was barred under Section 30 and / or 31 of the Land Acquisition Act?
Neither party led the evidence that the procedure to acquire the suit property was completed by the government under the Land Acquisition Act.
Hence, the present suit is not barred U/s. 30 or 31 of the Land Acquisition Act.
Issue No. 12 is decided accordingly.
Issue No. 13: Whether this court has no pecuniary jurisdiction to try this suit?
The plaintiff has prima facie properly valued the suit for the purpose of pecuniary jurisdiction of the court. The defendant has not led any evidence to prove to the contrary.
Issue No. 13 is decided in favour of the plaintiff.
Issue No. 14:
Whether the decree passed in S. No. 74/83 on 18/04/1984 was a nullity in view of the provisions of Land (Restriction & Transfer) Act, 1972? Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 22
There was no sale or transfer of the property through order and decree dated 21/04/1984. It was only a declaration of ownership of the suit property in favour of the defendant by way of adverse possession. Thus, the court had recognized through the order and decree dated 21/04/1984 that defendant was already in adverse possession of the suit property. The provisions of Land (Restriction & Transfer) Act, 1972, was not applicable to the decree dated 21/04/1984 in suit no. 74/83.
Issue No. 14 is decided accordingly.
Relief:
The order and decree dated 21/04/1984 in suit no. 74/83, titled as "Jamia Millia Islamia Vs. Abu Fazal Faruqi" is hereby declared null and void, having been obtained as a result of forgery of the court record, in collusion between defendant and Mr. C.B. Thanai, advocate (now deceased), and by playing fraud upon the court. The status of the parties in reference to the suit property i.e. Khasra Nos. 338/227, 235 and 232, Village Abadi of Batla House, Tehsil Mehrauli, Delhi, shall be as if the order and decree dated 21/04/1984 had not been passed in suit no. 74/83. All benefits which defendant Abu Fazal Farooqui derived by virtue of decree dated 21/04/1984 shall stand cancelled. As a necessary corollary and logical consequence, the name of person or department who / which was mentioned as the owner of Khasra Nos. 338/227, 235 and 232, Village Abadi of Batla House, Tehsil Mehrauli, Delhi, in the revenue records before the passing of order and decree dated 21/04/1984 in suit no. 74/83 shall be reentered as the Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 23 owner of the same, whereas, the name of the defendant Abu Fazal Farooqui as the owner of the same shall be deleted from the record. The opportunity of the plaintiff to seek proper relief in reference to Khasra Nos. 338/227, 235 and 232, Village Abadi of Batla House, Tehsil Mehrauli, Delhi, opens herewith. Decree sheet be prepared accordingly.
File be consigned to record room, after due completion.
Announced in open court (VISHAL SINGH) on 11/11/2013 CIVIL JUDGE9/CENTRAL (This judgment contains 24 printed pages.) DELHI: 11/11/2013
Jamia Millia Islamia Vs. Mohd. Abu Fazal Farooqui & Anr. Suit No. 331/13/86 24