Delhi District Court
Brief History Of The Case vs . on 28 September, 2015
1
In the court of Ashwani Kumar Sarpal, Additional District Judge-1,
North East District, Karkardooma Courts, Delhi
RCA no.- 14/2015
Sh. Zamiruddin
vs.
Sh. Sunil Jain
Date of filing of appeal---------15.04.2015
Date when order reserved-----31.08.2015
Date of final decision-----------28.09.2015
(APPEAL AGAINST THE ORDER DATED 13.03.2015 PASSED IN
EXECUTION NO. 339/06 BY COURT OF SH. ROHIT GULIA, CIVIL
JUDGE (WEST) - 02, TIS HAZARI COURTS, DELHI)
==========================
JUDGMENT:-
Though the impugned order dated 13-3-2015 was passed by the ld. Civil Judge (West)-2, Tis Hazari Courts but in view of the notification of the Hon'ble High Court dated 22-10-2008, the appeal lies before this court dealing with the matters of North-East District as property in dispute is situated within the jurisdiction of this court.
BRIEF HISTORY OF THE CASE:-
This fact is not in dispute that appellant (hereinafter referred to as decree holder/DH) was the original allottee of the 2 DDA property bearing no. C-5/210, Yamuna Vihar, Delhi (hereinafter referred to as suit property) vide registered lease deed dated 3-3-1979.
A suit for permanent injunction bearing no. 244/2000 was instituted by one Sh. Shanu Mohammad (hereinafter referred to as judgment debtor/JD) against the DH claiming himself to be a tenant in the suit property. In this suit, JD sought an injunction for restraining DH from forcibly dispossessing him from the suit property. An exparte stay was granted in favour of JD by the court concerned. In that suit, DH filed his counter claim mentioning therein that JD was never in possession of the suit property but under the garb of exparte interim injunction, DH has been dispossessed by the JD, so his possession is required to be restored. Both the suit of the JD and counter claim of the DH were dismissed by the court of Ms. Anu Grover Baliga, Civil Judge on 7- 9-2002 by holding that the suit was not actually filed by the JD himself whereas the counter claim has no merits.
DH filed an appeal bearing RCA no. 51/2002 against the dismissal of his counter claim which was allowed by the court of Ms. Anju Bajaj Chandna, Addl. Senior Civil Judge on 28-9-2004. JD did not file any appeal against the judgment of Trial Court dated 7-9-2002 nor filed any cross objections in the appeal of DH. Ld. Addl. Senior Civil Judge in its judgment dated 28-9-2004 ordered that DH be handed over the possession of the suit property on payment of 50% of the court fees as calculated on the market value of the property in question in view of the fact that counter claim has been treated as a suit under Section 6 of the Specific Relief Act.
The formal decree in RCA no. 51/2002 was drawn on 23- 3-2006 after the requisite court fee was paid by the DH after issuing 3 notice to the JD by the court concerned. Thereafter, DH filed execution petition on 1-5-2006 for recovery of possession of the suit property from the JD. The ld. Executing Court took steps for recovery of possession of the suit property from the JD by issuing warrants of possession and also had provided the police aid to the bailiff.
One Sh. Margoob Ahmed filed objections on 10-11-2006 claiming himself to be the owner of the suit property. In his objection, he alleged that the DH had sold the suit property to Sh. Hakikat Ali on 9-12-2003 and also handed over vacant possession to him and said Sh. Hakikat Ali sold the same to the objector Sh. Margoob Ahmed on 2-12-2005. Thereafter objector got the suit property freehold from the DDA, obtained electricity and water connections in his name and also got mutation of it done in his name in the MCD record. The objections filed by Sh. Margoob Ahmed were contested by the DH. Ld. Executing Court framed issues on these objections vide order dated 12-10-2009 and ultimately dismissed the same on 19-02-2010. Again fresh warrants of possession were issued against the JD by the ld. Executing Court.
Said Sh. Margoob Ahmed had also filed suit no. 81/2006 for relief of permanent injunction and mandatory injunction only against the DH in respect of the suit property which was dismissed in default and its restoration application under Order 9 Rule 9 CPC was also dismissed. Again he filed fresh suit on 27-10-2006 bearing no. 79/08 (old no. 1605/06) against the DH and this time impleaded DDA also as an additional party but with the similar allegations and cause of action and concealed the fact of dismissal of restoration application in previous suit. That fresh suit of Sh.4
Margoob Ahmed bearing no. 79/08 was dismissed by the court of Sh. Vishal Gogne, Civil Judge on 20-3-2008 with costs. Appeal bearing RCA no. 8/09 filed against the said order was also dismissed on 21-12-2009 by the court of ld. ADJ-05 (Central).
Respondent Sh. Sunil Jain filed his objection application under Section 47 r/w Order 21 Rule 35 CPC on 13-8-2010 with averments that he had purchased the suit property from Sh. Margoob Ahmed on 12-1-2007 through registered sale deed and being a bonafide purchaser, he cannot be dispossessed. These objections were dismissed on 16-5-2011. Respondent challenged this order in the Hon'ble High Court and the matter was remanded back for fresh decision vide order dated 28-9-2011.
In the meanwhile, respondent Sh. Sunil Jain had also filed a civil suit against Sh. Margoob Ahmed on 25-8-2010 in the Hon'ble High Court for seeking declaration that he is the bonafide purchaser of the suit property and is its exclusive owner. Relief of permanent injunction was also sought against Sh. Margoob Ahmed for restraining him not to dispossess respondent from the suit property. In this civil suit, the DH was intentionally not made a party despite having knowledge that he had obtained decree against JD for getting suit property vacated which is clear from the averments made in the plaint of the suit. When DH moved an application under Order 1 Rule 10 CPC for becoming party in this suit of the respondent, then he withdrew the same on 29-7-2011 from Hon'ble High Court with liberty to file the fresh suit against Sh. Margoob Ahmed and by impleading JD Sh. Shanu Mohd. as well as DH.
Respondent had also moved an application in the execution under Section 151 CPC for stay of the execution 5 proceedings keeping in view the pendency of his suit but that application was dismissed on 16-5-2011 by ld. Executing Court and appeal against the same was also dismissed by ld. ADJ court on 20- 8-2011.
Ld. Executing Court found that the objections filed by the respondent cannot be decided without evidence, so following issues were framed on 10-2-2012;
1) Whether the purported GPA, Agreement to Sell, Receipt of consideration amounting to Rs. 1,10,000/-, Will, Affidavit all dated 9-12-2003 allegedly executed by DH in favour of Sh. Hakikat Ali s/o Sh. Shokat Ali are forged and fabricated? OPDH
2) Whether the DH has not delivered the actual physical possession of the suit property on 9-12-2003 to Sh.
Hakikat Ali s/o Sh. Shokat Ali as he himself was not in physical possession? OPDH
3) Whether the present objections are liable to be dismissed in view of the doctrine of lis-pendence as provided under section 52 of Transfer of Property Act? OPDH
4) Whether the objector Sh. Sunil Jain is the owner of the suit property? OP objector
5) Relief.
Respondent in order to prove his objections examined total six witnesses including himself whereas DH examined three witnesses including himself. Ultimately ld. Executing Court vide order dated 13-3-2015 allowed the objections of the respondent and dismissed 6 the execution which order is now challenged in this appeal by the DH.
CLAIM OF THE RESPONDENT:-
Respondent is claiming title of the suit property from Sh. Margoob Ahmed on the basis of registered sale deed dated 12-1- 2007. Sh. Margoob Ahmed had allegedly purchased the same from Sh. Hakikat Ali on 2-12-2005 through GPA, Agreement to Sell, Will, Receipt etc. Sh. Hakikat Ali had obtained ownership rights qua the suit property directly from the DH on the basis of the GPA, Agreement to Sell, Will, Receipt etc. dated 9-12-2003. The property was leasehold property which was converted into freehold by the DDA in favour of Sh. Margoob Ahmed. Electricity and water connections in the suit property were in the name of Sh. Margoob Ahmed besides its mutation in the house tax record of the MCD. Possession of the suit property was also with Sh. Margoob Ahmed and thus according to the respondent after seeing and verifying all these facts, he had purchased the suit property and what more he could do so being a bonafide purchaser he is liable to be protected and cannot be dispossessed under the decree dated 28-9-2004. In this manner, respondent is describing himself to be a bonafide purchaser of the suit property for valuable consideration without notice of any litigation. According to him, when the DH himself sold the property to Sh. Hakikat Ali, then the principle of lis-pendence is not applicable.
REPLY OF THE DECREE HOLDER:-
On the other hand, DH stated that he had not executed any documents of alleged sale in favour of Sh. Hakikat Ali on 9-12- 7 2003 and the same are forged and fabricated. He also stated that when he himself was not in possession of the suit property even till the year 2004 after dispossession since year 2000, then how he could give its physical possession to Sh. Hakikat Ali as mentioned in the alleged sale documents of the year 2003. He challenged the genuineness of claim of the respondent being of bonafide purchaser as well as pointed out various defects in the chain of documents. As per DH, Sh. Margoob Ahmed during pendency of the execution could not sell the suit property to anyone due to bar of doctrine of lis-pendence and if any such transaction takes place, then the same is illegal. According to DH, respondent has stepped into the shoes of Sh. Margoob Ahmed and once the objections of Sh. Margoob Ahmed were dismissed by the executing court on 19-2-2010, then fresh objections cannot be filed by his successor in interest who may be the present respondent.
I have heard counsel for both parties and gone through the Executing Court's record and even written submissions cum reply filed by the respondent. Following points raised during arguments are being discussed one by one as under;
Maintainability of the objections of the respondent It is stated on behalf of DH that the objections filed by the respondent are not maintainable in view of the order of the Hon'ble High Court dated 29-7-2011. Respondent had filed a civil suit bearing no. CS (OS) no. 1943/2010 against Sh. Margoob Ahmed in the Hon'ble High Court for seeking declaration that he is the bonafide purchaser of the suit property and its exclusive owner besides claiming relief of permanent injunction. This suit was 8 withdrawn on 29-7-2011 from Hon'ble High Court with liberty to file the fresh suit against Sh. Margoob Ahmed and by impleading JD as well as DH. However, respondent instead of filing separate suit as per liberty taken from the Hon'ble High Court has filed these objections in the Executing Court and that is also without impleading the JD as a party. It is argued on behalf of DH that the objections of the respondent filed against the spirit and concession of the order of Hon'ble High Court dated 29-7-2011 as well as his own undertaking given there should not have been entertained and liable to be dismissed straightway. On the other hand, it is stated on behalf of the respondent that earlier objections of the respondent were dismissed summarily by the ld. Executing Court and that order was challenged in the High Court in CM (M) no. 1134/2011 and Hon'ble High Court vide order dated 28-9-2011 directed that objections of the respondent should be decided thoroughly so the same is maintainable.
I am of the view that due to subsequent order of the Hon'ble High Court dated 28-9-2011, the objections of the respondent can be entertained but the same are not maintainable because respondent had purchased the suit property from Sh. Margoob Ahmed on 12-1-2007 during pendency of the present execution petition. He infact had stepped into the shoes of his predecessor in interest. When the earlier objections filed almost on the same grounds by Sh. Margoob Ahmed have been dismissed by the ld. Executing Court on 19-2-2010 after trial on the basis of issues framed, then fresh objections filed by respondent being successor of Sh. Margoob Ahmed are not maintainable and liable to be dismissed straightway. However, I still deem it proper to decide the same on merits as under.9
Whether any genuine sale transaction taken place between DH and Sh. Hakikat Ali on 9-12-2003 (ISSUE NO. 1) This fact is not in dispute that original allottee of the suit property was DH as per lease deed executed in his favour by the DDA. Respondent relied upon the sale documents Ex. OW1/10 to 14 i.e. GPA, Agreement to Sell, Will and Receipt dated 9-12-2003 to show that title and possession of the suit property itself was transferred by DH to Sh. Hakikat Ali. The Agreement to Sell was initially undervalued and deficient stamp duty was paid on it but this deficiency was removed on 28-11-2005 by Sh. Hakikat Ali just before the sale of the suit property to Sh. Margoob Ahmed. DH has described these documents as forged and fabricated.
The above documents in favour of Sh. Hakikat Ali as relied upon by the respondent are not proved as per law because the said Sh. Hakikat Ali has not been examined by the respondent despite mentioning his name in his list of witnesses. Respondent in his list of witnesses mentioned the name of five private witnesses including Sh. Hakikat Ali and Sh. Margoob Ahmed besides witnesses of the sale documents but none of them was called in the witness box and withheld from the court for the reasons best known to him. The argument advanced on behalf of respondent now that sufficient opportunities were not given by the ld. Executing Court to complete the evidence and his evidence was closed abruptly despite objections cannot be accepted because respondent had not challenged that order in higher court ever. Due to non examination of material witness Sh. Hakikat Ali and attesting witnesses of the documents in his favour by the respondent, adverse inference has to be drawn against him because it is not the case of the 10 respondent that this witness was not available or could not come to the court. Even Notary Public who attested these documents Ex. OW1/10 to 14 is examined. The sale documents in favour of Sh. Hakikat Ali allegedly executed by DH were also unregistered documents. These alleged documents in favour of Sh. Hakikat Ali were not executed in presence of the respondent, so he could not prove it and exhibit it. Even no expert witness is examined by the respondent to establish that signatures on these documents are of DH. Supreme Court in Rosammal vs. Joosa Mairyan Fernandez 2000 VI AD (SC) 569 held that where document is unregistered and its execution is disputed, then atleast one of its attesting witnesses is required to be examined to prove it. Accordingly, it is held that the same is not proved as per law and thus it cannot be looked into even if respondent has put exhibit mark on the same.
The attestation of GPA and other documents in favour of Sh. Hakikat Ali done by Notary Public are also not proper and defective because no entry number of register of such notary is mentioned anywhere. There is no endorsement of the Notary Public on these documents who had identified DH before him. How, Notary Public satisfied himself that person appearing before him is the DH and none other is not reflected from any of his statement made while attesting the same. Hence, the attestation done by the Notary Public on the GPA and other documents Ex. OW1/10 to 14 is liable to be discarded due to violation of the notary rules.
In the said GPA Ex. OW1/10, DH allegedly has described himself as 'Owner General Attorney" which fact is incorrect because he was only the allottee of the DDA property at that time. DH has also described himself in possession of the suit property which fact is also incorrect because he was not there actually as held below 11 while dealing with issue no. 2. Thus, the above details allegedly given by the DH in the GPA is wrong and these facts create doubt about the genuineness and correctness of the said document.
Further Agreement to Sell Ex. OW1/11 dated 9-12-2003 allegedly executed by DH in favour of Sh. Hakikat Ali is unregistered document. This was required to be compulsorily registered as per provisions of Section 17 (1A) of Registration Act at that time so due to its non registration, it cannot be read in evidence. In this regard, reliance can be placed upon the decision of Delhi High Court in case Arun Kumar Tandon vs. Akash Telecom Pvt. Ltd. CM (M) no. 1371/2008 decided on 2-3-2010.
As per judgment of Supreme Court in Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana (2012) I SCC 656 the transfer of title and ownership through GPA, Agreement to Sell etc. is not permissible and only those GPA etc. have been exempted executed prior to the date of judgment which were genuinely executed. Here in this matter, the alleged first sale transaction in favour of Sh. Hakikat Ali itself is found not genuine and accordingly he could not have got any right or title of the suit property. Accordingly, he could not transfer any title better then himself to his successors.
All the above mentioned facts leads to the conclusion that there was no genuine transaction between DH and Sh. Hakikat Ali on 9-12-2003 as alleged by respondent and no title or ownership of the suit property passed from DH to said Sh. Hakikat Ali on the basis of documents Ex. OW1/10 to 14. The findings given by ld. Executing Court in this regard is not correct and is liable to be set aside.12
Whether DH was in possession of the suit property on 9-12- 2003 i.e. the date of execution of the documents in favour of Sh. Hakikat Ali (ISSUE NO. 2) The documents Ex. OW1/10 to 14 allegedly executed by DH in favour of Sh. Hakikat Ali on 9-12-2003 and relied upon by the respondent says that possession of the suit property was handed over by the DH to Sh. Hakikat Ali on the date of execution of these documents. However, the same could not have been possible as on the said date, DH himself was not in actual physical possession of the suit property. The following evidence on record establishes the same;
(a) The judgment of court of Addl. Senior Civil Judge Ms. Anju Bajaj Chandna in RCA no. 51/2002 dated 28-9-2004 which is Ex. DH-
1/1 clearly reveals that DH who was in possession of the suit property at one time was dispossessed by the JD, that is why direction was given to the JD to restore possession to the DH. Thus, it is established from the judicial pronouncement that DH was not in possession of the suit property even as on 28-9-2004. If the judgment dated 28-9-2004 is read as a whole especially paragraphs no. 21 and 23, then it is clear that the suit no. 244/2000 was filed by the JD himself. Thus the argument advanced on behalf of respondent that the signatures of JD on the plaint of the said suit and other documents are different and accordingly it cannot be said that he had filed this suit has no merits. The record indicates that infact JD was of the habit of signing in different manner at different time.
13(b) JD Sh. Shanu Mohd. and his wife Smt. Shalu Khan were the injured/eyewitness of the case FIR no. 3/2001 under section 308/ 324/452 IPC registered in PS Bhajanpura against the DH. They had given their residential addresses of the suit property to the police as per chargesheet Ex. DH-1/2. Even during trial of this case, both were served through summons of the Sessions Court for date of 24- 1-2004 and through bailable warrants for 18-3-2004 at the same address. They appeared in the Sessions Court on 18-3-2004 as a witness and gave statement on oath in which also gave their residential addresses as of suit property. It also proves that JD was in the possession of the suit property even in March, 2004.
(c) In respect of one money decree dated 13-2-2004 passed in suit no. 256/2003, an execution bearing no. 14/04 between DH and JD was pending in the court. In that execution Ex. DH-1/3, warrants of attachment of movable property of the JD were issued at the address of the suit property. On 1-10-2004, a part payment of Rs. 8,000/- was made to the DH on behalf of the JD and time was given to the parties for compromise but it could not be materialized. The report of the bailiff on warrants of attachment proves on record through statement of concerned bailiff given in the concerned court on 23-9-2005 says that he had met wife of the JD at the suit property address and even recorded her statement which says that JD had gone out of station and she would inform him about the warrants as and when comes. The concerned Executing Court even issued warrants of arrest against the JD vide order dated 23-9-2005 at the address of the suit property. These facts also prove that JD was residing at the suit property address and DH was not in possession of the same even in September, 2005.
14(d) Ld. Addl. Senior Civil Judge Ms. Anju Bajaj Chandna passed judgment in RCA no. 51/2004 on 28-9-2004 but decree could not be prepared as the DH was required to pay some court fees. In the year 2006, DH moved an application u/s 151 CPC for preparation of the decree as he showed willingness to pay the requisite court fee. The court issued notice of this application to the JD at the address of the suit property and he was served because his counsel appeared in the court and filed vakalatnama as per order sheet Ex. DH-1/4. There after no one appeared for the JD, so the court framed formal decree on 23-3-2006. The fact of service of notice of the application of the DH at the address of the suit property upon JD also point out that he was occupying the same even in the year 2006.
(e) It is also proved from the certificate issued by the ADM cum Election Returning Officer dated 12-10-2006 Ex. DH-1/5 that name of JD was still existing in the electoral roll of the area at the suit property address. Respondent has not led any evidence to show that JD was living somewhere else at that relevant time and the entry in this electoral roll is not reliable. Accordingly, this fact also proves that JD was in possession of the suit property and not the DH.
(f) Respondent himself gave a police complaint in police station on 19-8-2010 in which he stated that JD Sh. Shanu Mohd. has left no concern with the possession of the suit property with effect from 12- 1-2007 i.e. the date of purchase of the property by him. It also leads to the conclusion from the above admission of the respondent that 15 JD remained in possession of the suit property atleast till 12-1- 2007.
(g) From two FIRs Ex. DH2/1 and 3 registered against JD and others in police station Bhajanpura on 10-10-2002 and 31-8-2003 respectively under section 448/380 IPC on the complaint of one Sh. Majid Ali Khan advocate, it is also clear that JD had tried to dispossess the said advocate from one room in his possession in the capacity of a tenant on the first floor. Some Kalandras under
section 107/151 Cr.P.C. are also proved on record by the DH prior to the period of 2003 instituted against the JD. Though those are not material one but these facts apparently brought on record by the DH only to prove that JD was of the habit of encroaching upon the properties of others and thus the directions given against him to restore the possession of the DH vide RCA no. 51/2002 were genuine and based upon sound grounds. Otherwise also, these two FIR shows that Sh. Majid Ali Khan was only occupying one room in the suit property and not the entire property. DH cannot be held liable for any concealment of fact of tenancy of Sh. Majid Ali Khan by filing execution against JD only as it is not proved on record that Sh. Majid Ali Khan was also the tenant at the time when suit property was in possession of the DH prior to year 2000.
All the above mentioned fact clearly establishes on record that DH was not in possession of the suit property on 9-12-2003 when the alleged transaction took place in favour of Sh. Hakikat Ali vide documents Ex. OW1/10 to 14 as stated by the respondent. The contents of the sale documents in favour of Sh. Hakikat Ali that DH himself had handed over possession of the suit property to him are totally false averment. DH could not do so when he himself was not 16 in possession of the suit property. In such situation also, when DH was not using the suit property and was not occupying the same, there was no obligation upon him to pay the house tax or to pay any electricity or water charges. Non lodging of any complaint by the DH against MCD or DJB or Electricity Department for mutating property or giving connections in the name of Sh. Margoob Ahmed is not sufficient to reject the execution. The findings given by the ld. Executing court in this regard are not correct and liable to be set aside accordingly.
Whether during pendency of a litigation, transaction of disputed property without permission of the court is permissible/Question of lis pendence (ISSUE no. 3) Sh. Margoob Ahmed allegedly sold the suit property to the present respondent on 12-1-2007 and lost his all rights and interest in the suit property on that day but he continued to pursue with his objections filed in the execution petition of the DH till the same were dismissed on 19-2-2010. He thereafter never challenged this order in any higher court. It clearly leads to the inference that some trick was being played by Sh. Margoob Ahmed with the court and the alleged sale is nothing but a fictitious transaction to deny the DH to the benefit of his decree dated 28-9-2004.
It is also important to mention here that in the execution petition, the objections were filed by Sh. Margoob Ahmed through advocate Ms. Madhulika Sareen and she continued to be his counsel till the same were dismissed on 19-2-2010. Thereafter the objections were filed by the present respondent through the same advocate Ms. Sareen. This fact leads to the inference that both Sh.17
Margoob Ahmed and present respondent were in touch with each other and the possibility of filing of objections by the present respondent in conspiracy with Sh. Margoob Ahmed in order to defeat the claim of the DH cannot be ruled out.
Otherwise also, the purchase of the suit property during pendency of the litigation by the respondent is not permissible under law without permission of the court and is hit by the principles of lis-pendence under section 52 of Transfer of Property Act. The detail reasoning can be found below while dealing with issue no. 4 which leads to the conclusion that sale transaction in favour of respondent is also fictitious and sale deed dated 12-1- 2007 Ex. OW2/1 is a manipulated document. Ld. Executing Court has not rightly given findings on this issue so the same is liable to be set aside.
Whether respondent is a bonafide purchaser of the suit property and has become its owner (ISSUE NO.4) Certain documents filed on record by respondent though are not proved or exhibited during evidence but the same can be still taken into consideration if the same are going against him as per law laid down in case K.K. Dhawan vs. Dr. Promila Suri 1997 (2) RCR (Rent) 455.
When the initial documents Ex. OW1/10 to 14 in favour of Sh. Hakikat Ali are not proved regarding passing of title of the suit property in his favour from DH, then the subsequent documents even if for the sake of arguments are presumed to be legally and correctly executed on that basis does not transfer the valid title. In such situation, respondent cannot be held to have 18 become owner of the suit property because the seller cannot transfer the title better then he has.
Sh. Hakikat Ali had allegedly sold the suit property to Sh. Margoob Ahmed on 2-12-2005 vide GPA, Agreement to Sell, Will, Receipt etc. In GPA and Agreement to Sell, Sh. Hakikat Ali described himself to be an attorney of DH on the basis of documents dated 9-12-2003. However, in the Agreement to Sell, at third page, it is mentioned that DH has sold the suit property to Sh. Margoob Ahmed which fact is not correct if the story of the respondent is taken into consideration. Lateron Sh. Hakikat Ali executed deed of rectification Ex. OW2/5 dated 27-3-2006 in which he described himself as the original allottee of the suit property which fact is again totally incorrect because the property was originally allotted to DH by the DDA and not to Sh. Hakikat Ali. The above mentioned facts leads to the conclusion that lot of manipulations were carried out in the sale documents allegedly executed firstly in favour of Sh. Hakikat Ali and then in favour of Sh. Margoob Ahmed. Otherwise also, respondent admitted in his cross examination that he has no personal knowledge about the transaction taken place between Sh. Hakikat Ali and Sh. Margoob Ahmed. Thus, the sale documents executed by Sh. Hakikat Ali Ex. OW2/2 to 4 are also not proved as per law. The non examination of material witnesses Sh. Hakikat Ali and Sh. Margoob Ahmed is fatal to the case of the respondent though their names were mentioned in the list of witnesses by the respondent.
Suit property was a lease hold property. It is alleged by respondent that Sh. Margoob Ahmed got the suit property free hold from the DDA on 4-7-2006. If the conveyance deed Ex. OW1/6 is taken into consideration, then it also reveals that wrong facts have 19 been mentioned in the same. Sh. Margoob Ahmed by stating himself to be an attorney of the DH got the suit property converted into free hold from lease hold when infact he was not the attorney of the DH but was the attorney of Sh. Hakikat Ali. This fact also point out that manipulation was done in getting the suit property free hold by Sh. Margoob Ahmed. DDA before converting the suit property from lease hold to free hold did not issue any notice to the DH for his objections or confirmation of the attorney and simply relied upon some unattested documents allegedly produced by Sh. Margoob Ahmed. Insufficient documents including photocopy of very old ration card of Sh. Hakikat Ali having totally different address was produced before DDA by Sh. Margoob Ahmed. During arguments, DH showed the original perpetual lease deed in the court. Though he could not place it in the record during evidence stage but there is no dispute about its genuineness. On the other hand, its possession with the DH proves the version of the respondent wrong when he said that he had received complete chain of sale documents starting from DH till Sh. Margoob Ahmed. There is a copy of the written statement of DDA filed in case of Sh. Margoob Ahmed placed on record by the respondent himself which reveals that Sh. Margoob Ahmed got the suit property freehold on the pretext that original lease deed has been lost and complaints in this regard were received from DH. Thus, custody of the original lease deed with the DH leads to the inference that Sh. Margoob Ahmed had got the suit property free hold by giving false information to the DDA officials. The possession of the original lease deed with DH further fortifies the fact that he had not sold the property to Sh. Hakikat Ali ever. From the statement of OW-3, it is clear that Sh. Margoob Ali in connivance with the DDA officials 20 illegally and against the proper procedure and rules got converted the suit property free hold from leasehold. Moreover, this conveyance deed is also not proved as per law because witness OW- 3 failed to identify any signature of official of his office on the same and admittedly the same was not signed in his presence. Mere proving of registration of any document does not draw a presumption that it was also duly executed. The execution and registration of the conveyance deed Ex. OW1/6 in favour of Sh. Margoob Ahmed fraudulently obtained from DDA on basis of GPA etc. is not protected under the concessions given by Supreme Court in para no. 26 of the Suraj Lamp's case.
Sh. Margoob Ahmed got the mutation of the suit property also done in his favour in MCD record. However, it has come in evidence from the statement of OW-5 that prior to changing the mutation in the name of Sh. Margoob Ahmed from the name of DH, no prior notice was given to the DH by the MCD as in the record brought. There was no proof of dispatch of any such notice to the DH. Even the copy of such notice lying on record shows the dispatch at some unknown address which was taken from somewhere but not proved whether it ever belonged to the DH. Otherwise also, mutation letter Ex. OW5/A itself says that the same does not devolve any legal right and it is only meant for recovery of house tax. Similarly electricity and water bills cannot determine any ownership rights over the person in whose name connections are allotted.
Respondent relied upon the sale deed Ex. OW2/1 allegedly executed on 12-1-2007 by Sh. Margoob Ahmed to claim ownership rights over the suit property. He has not examined the concerned seller to prove the execution of the same. Even no 21 attesting witness of the said sale deed is examined. The registration of the document itself is not sufficient to establish that it was duly and properly executed by the executant as per law. The suit property measuring 68.75 sq. meter was purchased only for sum of Rs. 6 lakhs by the respondent. At the time of alleged sale, the property was admittedly consisting of two fully constructed floors. It is highly impossible that such type of property with so much construction and situated in Yamuna Vihar area would attract only meager sale consideration of Rs. 6 lakhs when the same was undisputed property as per respondent and was not involved in any litigation. Why respondent did not suspect anything due to very lower rate of the property at the time of purchase if he is claiming himself to be a bonafide purchaser, is a fact which has not been explained by him. This fact leads to the indication that he was not the bonafide purchaser and knew that it is involved in litigation that is why it was being sold at very lower price. If the law laid down by Delhi High Court in M.L. Aggarwal vs. Oriental Bank of Commerce 128 (2006) DLT 407 is taken into consideration, then it can be said that purchasing a property at very lower rates itself is a suspicious circumstance regarding collusion between the seller and purchaser and the sale documents have to be treated as manipulated documents in such situation.
Respondent filed a suit in the High Court against Sh. Margoob Ahmed for declaration and permanent injunction leveling certain allegations of forgery and cheating against him but it was withdrawn by taking liberty to file a fresh suit. Thereafter he never filed any fresh suit involving Sh. Margoob Ahmed. Respondent admittedly has not filed any complaint in police station against Sh. Margoob Ahmed for alleged offence of fraud and cheating in 22 connection with sale of the suit property on the ground that Sh. Margoob Ahmed sold the suit property without disclosing the fact that it was involved in the present litigation. This fact is also not in dispute that till date no notice has been issued to Sh. Margoob Ahmed nor any case is filed for damages against him. The act and conduct of the respondent cannot be held as of a common prudent common man. On one hand, respondent is raising serious allegations against Sh. Margoob Ahmed in respect of cheating and forgery but on another hand is not taking any legal action and even had withdrawn a sole case leads to the presumption that there was a connivance between the respondent and Sh. Margoob Ahmed and thus the transaction between them was not a bonafide one. The argument advanced by counsel for the respondent that technical defects in the documents in favour of Sh. Margoob Ahmed and Sh. Hakikat Ali can be ignored when DH has not specifically denied his photograph on the GPA dated 9-12-2003 itself is not sufficient to presume that the same was validly and genuinely executed. The various points referred above were not the simple technical defects in the documents but were going to the root of the same which make them inadmissible as well as held not proved as per law. Accordingly, those documents were not passing any title or ownership rights in favour of the respondent qua the suit property.
In the sale deed dated 12-1-2007 Ex. OW2/1 in favour of respondent, it is mentioned that the suit property is free from any dispute which fact is totally incorrect because even when this sale deed was executed by Sh. Margoob Ahmed, the execution petition was going in the court. If for the sake of arguments, it is presumed that seller Sh. Margoob Ahmed had misled the respondent, then respondent has a separate remedy to claim damages from him but 23 no such steps have been taken till date which point out that there is a connivance between the respondent and Sh. Margoob Ahmed. Further in the same sale deed, it is mentioned that Sh. Margoob Ahmed had delivered the vacant possession of the suit property to the respondent on 12-1-2007 itself but one complaint of respondent given to police on 19-8-2010 says otherwise which shows the possession of JD in the suit property till that day. Thus, the wrong averments in the sale deed coupled with other facts mentioned above also point out that sale transaction in between respondent and Sh. Margoob Ahmed was not genuine but was only eyewash in order to defeat the claim of the DH.
Counsel for the respondent relied upon provisions of section 110 of Evidence Act and case law Chief Conservator of Forests vs. Collector AIR 2003 Supreme Court 1805 but the same is not applicable because it is established on record that there was no long and settled possession of either Sh. Hakikat Ali or Sh. Margoob Ahmed or present respondent in the suit property. The title documents relied upon by the respondent are not genuine and clearly are manipulated one. DH has clearly established the fact that all the sale transactions starting from 9-12-2003 till 12-1-2007 are not correct so no benefit of the presumption of section 110 of the Evidence Act can be given to the respondent.
DH when is contesting the litigations for the last about 15 years in the court, then non lodging of separate complaint to police against Sh. Hakikat Ali or Sh. Margoob Ali is of no consequence. It was the discretion of the DH to file an application u/s 340 Cr.P.C. in the execution or not. The case of the DH cannot be rejected merely on the ground that he has not filed an application u/s 340 Cr.P.C. Filing of separate suit for cancellation 24 of conveyance deed dated 4-7-2006 Ex. OW1/6 in favour of Sh. Margoob Ahmed or sale deed dated 12-1-2007 Ex. OW2/1 in favour of respondent may not be necessary for the DH as the observation given in this order will serve his purpose. Even if DH in his cross examination at one stage admitted that he had cordial relation with JD then from this fact itself it cannot be presumed that all the litigations initiated since the year 2000 till today are fictitious one. On the other hand, gravity of litigations clearly shows that DH is hotly pursing his matters against the JD. There might be cordial relations in between DH and JD at one time but the same might have become strained subsequently.
In such situation, respondent cannot be held as a bonafide purchaser of the suit property. Furthermore, the suit property could not have been purchased by him during pendency of the execution proceedings before the ld. Executing Court. The doctrine of lis-pendence prohibits any such transaction especially when it is not a bonafide transaction but is carried out to defeat the rights of one party. The finding of the ld. Executing Court that DH himself had sold the suit property to Sh. Hakikat Ali which finally came in the hands of the respondent so this principle of lis- pendence is not applicable is not correct because it is held above that DH never sold the property to Sh. Hakikat Ali. Had the DH sold the property in the year 2003, then he would not have pursued the litigations for the last 12 years and contested the claims of different persons from one court to another. Ld. Executing Court was not correct in dismissing the execution merely on one ground that during cross examination, DH had denied his signatures on photocopy of his affidavit Ex. DW1/3 in execution no. 14/04. Raising presumption by ld. Executing Court that denial of 25 signatures on one affidavit by DH develops habbit of denial everything including sale of suit property on his part is not correct. Ld. Executing court did not try to find out what was the reason to deny the signatures by the DH, whether it was a confusion or old age or weak eyesight or absence of clarity of signatures on photocopy or any other reasons. Had ld. Executing Court looked into the orders passed from time to time in that execution proceedings no. 14/04, then it must have come to know that DH was strongly pursuing his matters even in respect of which he denied his affidavit. Thus, it can be said that mere denial of signatures on one affidavit was not sufficient to hold that DH had developed habbit to deny everything including sale of the suit property. The argument raised by counsel for the DH that objections are raised one after another with the sole motive to delay execution is causing serious prejudice to the DH is correct. Accordingly, the objections filed by the respondent are liable to be rejected. The findings of ld. Executing Court on this issue are also held not correct.
In view of the above discussions, I am of the view that order of ld. Executing Court cannot be sustained on any of the issues and is liable to be set aside because virtually the ld. Executing Court has not dealt with any of the material evidence as discussed above in its order. Ld. Executing Court did not deal with the evidence and documents properly so the impugned order is hereby set aside. Consequently, in view of the above discussions, the objections filed by the respondent Sh. Sunil Jain are ordered to be dismissed and the execution application filed by the DH is directed to be restored to its original number.
26Respondent Sh. Sunil Jain is given time of 15 days from today to vacate the suit property himself peacefully otherwise ld. Executing Court shall be at liberty to get it vacated by issuing warrants of possession with the help of police force which is already sanctioned. The record of Executing Court shows that lot of hurdles were created by locking the premises in question and even by raising walls in front of the gate as well as by quarreling with the bailiff in order to frustrate the execution proceedings so it is requested to the ld. Executing Court to decide this execution at the earliest and take harsh steps if necessary so that DH can get the benefit of judgment dated 28-9-2004 atleast now after expiry of 11 years. DH is a senior citizen so the execution should be dealt with on priority basis. Copy of the order and record be sent back to ld. Executing Court and file be consigned to record room.
(Ashwani Kumar Sarpal) Dt. 28-9-2015. Addl. District Judge- 1