Delhi District Court
Ishtiyaq Ahmed vs Delhi Development Authority on 15 November, 2014
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IN THE COURT OF SHRI SUKHDEV SINGH: ADDITIONAL
DISTRICT JUDGE: WEST DISTRICT: TEES HAZARI COURTS:
DELHI.
MCA No. 05/13
Ishtiyaq Ahmed
Son of Late Sh. Noor Ahmed
R/o 2142, Gali Ahata Mir,
Bukhari, Turkman Gate,
Delhi.
....Appellant
Vs
1. Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, I.N.A,
New Delhi
2. Mohd, Abdul Qadeer
3. Mohd. Fareed
4. Mohd, Tariq
All sons of Late Abdul Quyam
5. Ms. Shagufta
D/o Late Abdul Quyam
6. Ms. Rukshanda
D/o Late Abdul Quyam
All residents of H. No. 1260,
Gali Jaman Wali, Kala Mahal,
Jama Masjid, Delhi
7.Mst. Shamdhad Begum
W/o Mohd. Vakil,
D/o Late Abdul Quyam
R/o H. No. 1320, Nagina Mehal,
Farash Khanna, Delhi
(Since deceased through her LRs)
MCA No. 05/13 Ishtiyaq Ahmed Vs DDA & Ors Page no. 1 of 11
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8.(i) Mohd. Kamran (Son)
(ii) Mohd. Shadab (Son)
(iii)Mustab Shira (Daughter)
9. Mst. Qamar Begum
W/o Shafiquddin,
D/o Abdul Qayum
R/o H. No. 1320, Nagina Mahal,
Farash Khanna, Delhi
10. Mst. Shakeela Begum
W/o Mohd. Aqueel
D/o Abdul Qayam,
R/o Qasim Jaan, Ballimaran, Delhi
11. Mst. Shahista Begum
W/o Mohd. Iqbal
D/o Abdul Qayum
R/o Qasim Jaan, Ballimaran, Delhi
12. Mst. Sehnaz Begum
W/o Mohd, Naeem
D/o Abdul Qayum
R/o H. No. 1381, Pahari Imli,
Jama Masjid, Delhi
13. Usman Mizra
S/o Mst. Salamati Begum
14. Ehasn Mizra
S/o Mst Salamati Begum
15. Furqan Mizra
S/o Mst. Salamati Begum
16. Ms. Khairunissa
W/o Mohd Aquil
D/o Mst. Salamati Begum
17. Mohd Imran Mirza
S/o Mst. Salamati Begum
MCA No. 05/13 Ishtiyaq Ahmed Vs DDA & Ors Page no. 2 of 11
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18. Almas Mizra
S/o Mst. Salamati Begum
19. Ms. Shabana
D/o Mst. Salamati Begum
20. Shehzad Mizra
S/o Mst. Salamati Begum
21. Nafees Mizra
S/o Mst. Salamati Begum
22. Nazia
S/o Mst. Salamati Begum
All defendant no.13 to 22
All resident of 4037, Gali Khankhana,
Jama Masjid, Delhi
(Defendant no. 3 to 22 all are the legal heirs
of deceased Abdul Qayum).
23. Mohd. Razzak
S/o late Mohd. Ishaq
24.Maryam Bi
W/o late Mohd. Ishaq
25. Mohd. Musthaq
26. i) Smt. Shamina
W/o Late Safi
ii) Mohd. Bilal (minor son)
S/o Late Safi
iii) Mohd. Aman (minor son)
S/o Late Safi
iv) Ilma Praveen (minor)
D/o Late Safi
(All minors through their mother Smt. Shamina)
27. Mohd. Rafi
28. Mohd. Sami
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29. Mohd Zaki
30. Mohd. Rizwan
All sons of Mohd. Ishaq
31. Shahina Begum
D/o Late Sh, Mohd. Ishaq
Defendant no. 22 to 30
All residents of 750, Motor Market,
Jama Masjid, Delhi.
32. Amina Begum
D/o Late Mohd. Ishaq
R/o H. No. 4644, Ahata Kidara,
Bara Hindu Rao, Delhi
33. Nagma Begum
D/o Late Mohd. Ishaq
W/o Mohd. Syed
R/o Gali Rajan, Kucha Chelan,
Darya Ganj, New Delhi. ...Respondents
Date of Institution : 16.01.2013
Judgment Reserved for : 15.11.2014
Judgment Passed on : 15.11.2014
JUDGMENT
The present appeal has been directed against the order of dated 09.11.2012 passed by the court of Ms. Richa Gusain Solanki, Ld. Civil Judge (West), Tis Hazari Courts, Delhi, whereby the objections filed by the appellant/objector Shri Ishtiyaq Ahmed have been dismissed.
2. The facts in brief are that Plot No. D-1/130, Rewari Line Industrial Area Ph-II, New Delhi-4 was the subject matter of MCA No. 05/13 Ishtiyaq Ahmed Vs DDA & Ors Page no. 4 of 11 5 execution petition pending before the trial court. objector/appellant had been the bonafide purchaser of the property in question and had been in physical and actual possession of the same after raising construction out of his own income. Decree holder and judgment debtor used to visit the property in question intermittently as and when they needed the scrap goods available with the objector/appellant. It was stated that objector/appellant was shocked and surprised to acquire the knowledge of the pendency of certain dispute pertaining to the suit property when some officials of DDA visited the suit property in September, 2011. It was stated that objector/appellant has been cheated by judgment debtor as well as decree holder by never disclosing to him that the suit property had been the subject matter of dispute.
It was further stated that being the bonafide purchaser of the suit property and in possession of the same, objector/appellant was the necessary party. Since the parties to the suit had not impleaded the objector/appellant in the main suit, the main suit was not maintainable at all and for this reason decree of dated 22.02.2010 was not binding upon the objector/appellant. Thus, it was prayed that judgment/decree of dated 22.02.2010 be declared null and void and its execution, MCA No. 05/13 Ishtiyaq Ahmed Vs DDA & Ors Page no. 5 of 11 6 operation and implementation be stayed.
It was also prayed that orders/directions to the effect that the objector/appellant be not dispossessed from property no. D-1/130, Rewari Line Area, New Delhi without due process of law be also passed.
3. In its reply decree holder submitted that since the suit property had already been sealed, the objections had become infructuous.
4. In its reply, judgment debtor/DDA submitted that the suit property had been allotted to Shri Abdul Quyyum vide letter of dated 26.08.1975 in lieu of site no. 23, Jama Masjid. However, the Hon'ble High Court of Delhi in RSA No. 124/2010, CM No. 11499/2010 and 11500/2010 had found that the allotment of the suit property was fraudulently obtained by Abdul Quyyum and, therefore, the appeal filed by legal heirs of Abdul Quyyum was dismissed vide order of dated 09.02.2011. This order had also been stated to be upheld by the Hon'ble Apex Court vide order of dated 05.12.2011 and the allotment was cancelled vide letter of dated 20.04.2011 thereby directing him to hand over the suit property. Thereafter a report of dated 16.05.2011 was furnished by the concerned JE/AE and it was reported that the suit property had been occupied by the objector/appellant. Suit property was MCA No. 05/13 Ishtiyaq Ahmed Vs DDA & Ors Page no. 6 of 11 7 reported to be sealed on 22.02.2012. Allotment in favour Sh. Abdul Quyyum was stated to had been cancelled.
5. I have heard Ld. Counsels for the parties and have also perused the material placed on record.
6. It has been argued on behalf of the appellant/objector that the trial court has not appreciated the facts while disposing of the objections to the execution petition. It has been stated that the trial court has wrongly concluded that the appellant/objector was a purchaser pendentlite and the doctrine of lis pendens applies to the appellant/objector as he was bound by the judgment/decree under execution. It has further been argued that the appellant/objector purchased the property under execution by oral sale transaction from its original allottee, way back in the year 1983 i.e before the institution of the suit in 1984 and on the basis of the said transaction, the appellant/objector was in actual physical possession of the said property since 1983.
It has further been argued that the objections should not have been dismissed summarily, but he should have been given a chance to lead evidence. In nutshell, the arguments advanced on behalf of the appellant has been that the trial court was required to consider the objections raised on behalf of the appellant/objector, being the purchaser of the suit property. MCA No. 05/13 Ishtiyaq Ahmed Vs DDA & Ors Page no. 7 of 11 8 On the other hand, Ld. Counsel for the respondent has argued that the trial court has rightly applied doctrine of lis pendens. He has further stated that the decree was confirmed up to the Hon'ble Supreme Court, execution of which could not have been objected by the appellant/objector. He has also raised plea with regard to the locus standi of the appellant/objector. Even he has stated that the order was not an appealable one.
7. In support of his arguments, Ld. Counsel for the appellant has placed reliance on four judgments in N. Palaniappan Vs G. Pandurangan AIR 1990 MADRAS 327, Indira Transport Vs Rattan Lal 1998(I) RCR (Civil), Gopalji Prasad Keshari Vs Md. Rayez @ Fulan & Ors civil revision no. 1954 & 1960 of 1989 and Babulal Vs Raj Kumar & Ors. Since all the four judgments are on the same point, the judgment of the Hon'ble Supreme in Babulal Vs Raj Kumar & Ors is referred, where it has been laid down that under the amended Code, right of suit under Order 21, Rule 63 of the old Code has been taken away. The determination of the question of the right, title or interest of the objector in the immovable property under execution needs to be adjudicated under Order 21 Rule 98 which was an order and was a decree under Order 21 Rule 103 for the MCA No. 05/13 Ishtiyaq Ahmed Vs DDA & Ors Page no. 8 of 11 9 purpose of appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed was a complete code in itself. Therefore, the executing Court was required to determine the question, when the appellant had objected to the execution of the decree as against the appellants who were not parties to the decree for specific performance.
8. Without going into the arguments of the Ld. Counsel for the respondent with regard to the locus standi as well as maintainability of the appeal, the appeal as such is decided on merits. It has to be seen as to whether the trial court has rightly considered the objections raised on behalf of the appellant/objector.
9. To appreciate the arguments of the Ld. Counsels for the parties, a look has to be made to the order of the trial court. If the order the trial court is perused, it is noticed that the trial court has dealt with the objections of the appellant/objector and have concluded that with respect to the plea of the appellant/objector that he has partitioned the property in dispute for a valuable consideration, the objector has stated that he purchased the property in 1983 and admitted the possession of the suit property having been handed over in the year 2004. It has noted that all MCA No. 05/13 Ishtiyaq Ahmed Vs DDA & Ors Page no. 9 of 11 10 the documents placed on record were of the year 2004 and no document was of the year 1983. The suit was filed in the year 1984. That being so, it has taken the view that the appellant/objector purchased the property during the pendency of the suit which attracted the doctrine of lis pendens. Further it has taken the view that since the appellant/objector has purchased the property through GPA/agreement to sell, these documents do not amount to sale of immovable property.
10. It is the case of the appellant/objector that he purchased the property in the year 1983, the possession of the same was not handed over to him in the year 2004. All the documents such as agreement to sell, GPA etc have been of the year 2004. When all the documents pertaining to the property have been of the year 2004, certainly his version that he purchased the property in the year 1983 does not hold good. The suit has been filed in the year 1984. The institution of the suit has been prior to the execution of the documents such as agreement to sell, GPA etc. The fact that the sale has been made in the year 2004 when the decree holder and judgment debtor were litigating certainly, the doctrine of lis pendens applies. The fact that the appellant/objector has purchased the property during the pendency of the suit, he was bound by the judgment/decree. MCA No. 05/13 Ishtiyaq Ahmed Vs DDA & Ors Page no. 10 of 11 11 Further he was to find out as to whether the property was free from any encumbrance or not. Not only this, the execution of these documents such as GPA/agreement to sell etc do not confer any right, title or interest in the suit property. Thus, the trial court has rightly considered the objections raised on behalf of the appellant/objector. Further it is to be taken note of as stated in the order of the trial court that the judgment was upheld by the Hon'ble Apex Court which was final and binding on all the parties. The judgments relied upon by Ld. Counsel for the objector are not attracted to the facts of the case.
11. In view of the above, I am of the opinion that there is no error or illegality in the judgment passed by the trial court. Therefore, the appeal is devoid of any merits and the same deserves dismissal. Hence, the appeal is dismissed. TCR be sent back with a copy of the order. Appeal file be consigned to Record Room.
Announced in the open Court (SUKHDEV SINGH)
on 15.11.2014. Addl. District Judge:05
West District: THC
Delhi:
MCA No. 05/13 Ishtiyaq Ahmed Vs DDA & Ors Page no. 11 of 11