Delhi District Court
Sh. Gurcharan Singh Chawla vs Ranjeet Kaur on 28 November, 2011
IN THE COURT OF MS. SEEMA MAINI :
ADJ (3) NORTH: TIS HAZARI COURTS: DELHI
In re :
Suit No. 104/10 (Old No. 703/97)
Unique Case ID No. 02404C0011252006
In the matter of:
Sh. Gurcharan Singh Chawla
S/o Late Sh. Hira Sing,
R/o H-22/725, Joshi Road,
Karol Bagh, Delhi.
....Plaintiff
VS.
1. Ranjeet Kaur, W/o Late Sh. Hira singh,
R/o Flat No. 4920, STE, Suzana
Montreal (Canada)
2. Sh. Harbans Singh, W/o Sh. Sumer Singh
R/o RZ-4, Nangloi Sayed,
New Delhi.
3. Sh. Manoj Kumar S/o Sh. Zile Singh
R/o Village & PO Nangloi,
Sayed, New Delhi.
4. Sh. Arun Kumar Dawar, S/o Late Sh. M.L. Dawar
R/o E-105, Mansarowar Garden,
New Delhi.
5. Smt. Usha Dawar, W/o Sh. Arun Kumar Dawar
R/o E-105, Mansarowar Garden,
New Delhi.
........Defendants
Date of filing of the suit : 31.03.1997
Date of judgment : 28.11.2011
Suit no. 104/10 Page no. 1/64
SUIT FOR POSSESSION, MESNE PROFITS AND PERMANENT INJUNCTION
APPEARANCE:
Sh. Rajesh Harnal, counsel for plaintiff
Sh. S.K. Jha counsel for defendant No.1
Defendants no.2 and 3 already exparte
Sh. Vijay Kumar Gupta, counsel for defendants no. 4 and 5
JUDGMENT
1. Vide this judgment, I shall dispose off the instant suit, filed by the plaintiff Sh.
Gurcharan Singh Chawla, initially against defendant no.1 Smt. Ranjeet Kaur, seeking relief of permanent injunction. However, due to subsequent, multifarious events, the instant suit was amended by the permission/direction of the Hon'ble High court, by the plaintiff to a suit for possession, mesne profits and permanent injunction. During the pendency of the initial suit and till the time the amendment was carried out, defendants no. 2 to 5 being the persons, who allegedly purchased the property, in question, from defendant no.1 were therefore, arrayed as such.
2. The facts, as detailed in the plaint, are that the plaintiff had purchased a plot of land measuring 256 sq. yds. from Sh. K.L. Bedi, the original member of Low Income Group, Government Servants Co-operative House Building Society, Sunder Vihar, New Delhi, on 19.04.1984 on the basis of the execution of a Power of Attorney and all the relevant documents. Sh. K.L. Bedi was the member of the society with membership no. 1739 against the perpetual lease deed dated 09.05.1978, executed in his favour through Suit no. 104/10 Page no. 2/64 the Society by the Delhi Administration. The plaintiff paid the agreed consideration amount to Sh. K.L Bedi who executed the receipt for the amount of Rs.49,900/- dated 27.04.1984. Subsequently, vide conveyance deed dated 17.07.1996, the plot bearing no. B-10/342, Sunder Vihar, New Delhi stood transferred, in the name of the plaintiff.
3. The suit property, was earlier a lease hold property and the plaintiff after having purchased the same, intended the same to be a free hold property and as such applied with the DDA for the necessary conversion. As per the requirement of the DDA rules and bylaws, the plaintiff paid to the DDA all the requisite fees for the conversion and finally the said suit property was converted from a lease hold property to a free-hold property vide the conveyance deed dated 17.07.1996 executed by the President of India in favour of the plaintiff. In the said conveyance deed, the plaintiff has been shown as a purchaser of the property, from Sh. K.L. Bedi, and since July, 1996 the suit property has been duly registered in the record of the DDA, vide the conveyance deed, in favour of the plaintiff. After the execution of the conveyance deed, in favour of the plaintiff, the erstwhile lease hold rights of Sh. K.L. Bedi, in the suit property, came to an end and the perpetual sub- lease deed dated 09.05.1978, which was in the name of Sh. K.L. Bedi was cancelled and a formal endorsement to this effect was made in the records of the DDA and all the pages of the original perpetual sub-lease deed of Sh. K.L. Bedi. Thus, Sh. K.L. Bedi has no right, title or interest, of any nature whatsoever in the suit property and this fact was within the specific and personal knowledge of the defendants no. 1 to 5 as well as Sh. Jagjiwan Singh, the Attorney of defendant no.1.
4. It was stated that the plaintiff got the plan sanctioned from the MCD for the Suit no. 104/10 Page no. 3/64 construction of a single storied house in the suit property and completed the construction in the year 1992. He got the electricity and water connection in the year 1993-94 and obtained the completion certificate from MCD in the year 1996. The plaintiff was assessed to house tax/property tax to the MCD from the year 1993-94. He got his ration card prepared from the Civil Supply Department, Delhi Administration, at the address of the suit property.
5. It was further stated that defendant no.1, Smt. Ranjeet Kaur, who is the mother of the plaintiff and is a permanent resident of Canada for the last more than 12 years, had been visiting India once in a year to meet her daughters and relatives, who were staying in New Delhi. The brothers of the plaintiff are also residing in Canada, who, too, visit India occasionally, but otherwise they are also the permanent resident of Canada. The father of the plaintiff Late Sh. Hira Singh Chawla was settled in Canada and he died in Canada on 03.04.1990.
6. It was also stated that defendant no.1 had filed a probate petition in respect of the alleged Will executed by Late Sh. Hira Singh, in respect of the properties, owned by Sh. Hira Singh, as probate case bearing no. 145/94 in the Court of Sh. S.N. Aggarwal, the then Ld. ADJ, Delhi and the hearing in this case was fixed for 11.03.1997 for recording of the entire remaining evidence of the petitioner (Smt. Ranjeet Kaur). While the plaintiff was keen in contesting the probate case and had been attending the Court of Sh. S.N. Aggarwal. On 11.03.1997 the defendant no.1, in connivance with the local police of P.S Paschim Vihar, one Jagjiwan Singh, son of Sh. Sumer Singh, defendants no.2 and 3 and some other persons criminally tress-passed into the suit property bearing no. B-10/243, Suit no. 104/10 Page no. 4/64 Sunder Vihar, New Delhi and unlawfully dispossessed the plaintiff from the suit property. The defendant no.1 did not appear in the Court till after lunch and as such the Court dismissed the probate petition in default on 11.03.1997. However, shortly thereafter, the defendant no.1 moved an application for restoration of the probate petition and the same was restored back to its original number vide order dated 16.03.1999.
7. It was stated that defendant no.2 claimed himself to be the General Power of Attorney Holder of defendant no.1 and further to have purchased the property in question from defendant no.1. Defendant no.2 is the real brother of one Jagjiwan Singh S/o Sh. Sumer Singh, who had been claiming himself to be the GPA Holder of defendant no .1. The said Jagjiwan Singh had even signed, verified and filed the written statement on behalf of defendant no.1 in the instant case.
8. It was stated that defendant no.1 had instituted a Civil Suit bearing no. 139/97 dated 15.03.1997 before the Civil Judge, Delhi which was later amended to a suit for declaration, mandatory injunction and permanent injunction praying interalia, that the registered conveyance deed dated 17.07.1996 with respect to the property in question, in favour of the plaintiff, be declared as Null and Void and further that defendant no.1 be declared, the owner of the property. Smt. Ranjeet Kaur claimed herself to be the absolute owner of the suit property as late Sh. Hira Singh had bequeathed his rights in the suit property in her favour, vide the Will dated 01.04.1990. The defendant no.1 alognwith her associates and accomplices pursued the Civil Suit bearing no. 139/97 and fraudulently procured the exparte judgment and decree dated 03.05.1997, passed by Sh. V.K Gupta, Civil Judge, Delhi against the plaintiff, within a span of about 2 ½ months by examining the Suit no. 104/10 Page no. 5/64 witnesses on commission.
9. Only after procuring the exparte judgment and the decree, it was disclosed by defendant no.2, for the first time in the proceedings u/s 145 Cr.P.C. (lodged by the plaintiff against the defendant no.1), about the exparte judgment and the decree in suit no. 139/97. In the proceedings u/s 145 Cr.P.C, defendant no.1 was represented by defendant no.2, who claimed himself to be the GPA Holder of defendant no .1. Immediately, after coming to know of the exparte judgment and the decree, the plaintiff challenged the same by filing an application u/o 9 rule 13 CPC, but the same was dismissed in limini. The plaintiff filed an appeal bearing MCA No. 2/97 and 3/97. The said appeals were allowed and the exparte judgment and the decree dated 03.05.1997 passed by Sh. V.K. Gupta, Civil Judge, was set aside by Sh. S.N. Aggarwal, the then Ld. ADJ, Delhi vide judgment and decree dated 11.09.1998 in the presence of Sh. Jagjiwan Singh and his counsel Sh. M.L. Bajaj and the parties were directed to appear before the Trial Court for further orders.
10. Smt. Ranjeet Kaur, the defendant no.1 was being represented by Jagjiwan Singh, S/o Sh. Sumer Singh, R/o Nangloi, Delhi in suit bearing no. 139/97. Sh. Jagjiwan Singh also appeared as a witness in the suit, filed by defendant no.1 against the plaintiff. After the setting aside of the exparte judgment and the decree, the proceedings in suit bearing no. 139/97 commenced before the Trial Court and finally the suit was dismissed vide judgment/decree dated 05.04.2000 by Sh. Sanjay Sharma, Civil Judge, Delhi. This judgment remained unchallenged and became final and binding on the plaintiff as well.
11. Defendant no.1, Sh. Jagjiwan Singh, Sh. Harbans Singh, Sh. Manoj Kumar, Sh. Suit no. 104/10 Page no. 6/64 Gurcharan Singh and Smt. Savneet Kaur and defendants no. 4 and 5 are hand in glove with each other, since to the knowledge of all the persons, mentioned, the suit property stands registered in the name of the plaintiff and thus ,he is the lawful owner by virtue of the conveyance deed dated 17.07.1996.
12. It was stated that the defendants no. 4 and 5 and all their alleged predecessors in interest, have no respect for law and had been playing fraud, not only upon the plaintiff, but upon various courts of law, being in the habit of concealing, suppressing and withholding the true facts and making false statement of facts in the suit, to their convenience and advantages. It was stated that defendant no.2 claimed to have obtained the possession of the property in question on 09.05.1997.
13. It was stated that the property was never sold or even agreed to be sold to defendant no.2 by any lawful, authorized person and on the said date, the property in question was a free hold property, duly registered in the name of the plaintiff vide the conveyance deed dated 17.07.1996 to the knowledge of defendants no. 1 and 2. On 09.05.1997 neither defendant no.1 nor the erstwhile owner Sh. K.L. Bedi has any right, title or interest of any nature in the suit property.
14. It was further stated that defendant no.3 also claimed to have obtained the possession of the property in question on 09.05.1997 from defendant no.1, but again the property was never sold or agreed to be sold to defendant no.3 by any lawful, authorized person and on that date, the suit property was a free hold property and as stated above, the property stood duly registered in the name of the plaintiff. It was further stated that Suit no. 104/10 Page no. 7/64 defendants no. 4 and 5 have been in actual physical possession of the property in question since 04.07.2002, knowing fully well before taking the possession, that the property in question was a free hold property and that the plaintiff was its actual owner.
15. It was also stated that the defendant no.4 had filed a civil suit bearing no. 440/03, for permanent injunction against the plaintiff before the Civil Judge. In his plaint dated 03.11.2003, the defendant no.4 had admitted unequivocally that to his knowledge, the property in question was converted into free hold property from lease hold property and he had also annexed with the plaint dated 03.11.2003 a photocopy of the original cancelled lease deed dated 09.05.1978, showing the endorsement "cancelled and converted to free hold", duly signed by the Officer of DDA.
16. It was stated that on 20.10.2003, the plaintiff was shocked to see that defendants no. 2 to 5 were engaged in the unlawful act of damaging and destroying the super structure, raised on the plot no. B-10/243, Sunder Vihar, Delhi, i.e the suit property. The plaintiff objected to the unlawful acts of the defendants and reported the matter to the police. However, the defendants no. 2 to 5 were adamant and they had stated that they had taken the possession of the property to demolish and redevelop the project for constructing six flats over the plot of land and then to sell it and that the plaintiff had no right to stop them from doing so. It was only when the plaintiff showed the orders of the Court and documents of the title in his favour, that the police stopped them from further demolishing the property in question.
17. It was stated that during the course of proceedings, after 20.11.2003 the Suit no. 104/10 Page no. 8/64 defendants no. 4 and 5 and their counsel admitted and stated that after having taken the possession of the suit property from Sh. Gurcharan Singh S/o Sh. Saran Singh and Smt. Savneet Kaur, they have subsequently demolished the super structure of the suit property and intended to redevelop the same by carrying out fresh construction. They also revealed the name of the builder developer Sh. Vivek Ahuja and Sh. Sanjay Pahuja, who would be doing the reconstruction.
18. It was stated that the plaintiff had instituted a civil suit, titled as Gurcharan Singh Vs. Ranjeet Kaur, bearing suit no. 03/97, which was also pending in the Court of Sh. S.N. Aggarwal, the then Ld. ADJ, Delhi, who was also hearing the probate case as well as the appeals bearing MCA No. 2/97 and 3/97. The plaintiff, besides other reliefs, claimed possession of the suit property bearing no. B-10/243, Sunder Vihar, New Delhi, in the aforesaid suit against the defendant/Smt. Ranjeet Kaur. Sh. Manoj Kumar, moved an application dated 04.11.1997 u/o 1 rule 10 CPC in the said suit bearing no. 3/97 for being arrayed as a party in the said suit. The defendant no.3 and counsel for defendant no.1 objected to the maintainability of the suit for possession, instituted by the plaintiff on the ground interalia that the District Court had no pecuniary jurisdiction to entertain and try the suit for possession, when the value of the property was more than Rs. Five lacs. The defendants no. 1 and 3 vehemently contended that the suit for possession could be entertained only by the Hon'ble High Court in as much as the plaintiff had valued the suit for injunction in the Hon'ble High Court (in the present suit) at Rs. Ten lacs.
19. Defendants no. 1 and 3 admitted before Sh. S.N. Aggarwal, Ld. ADJ in the suit no. 3/97 that the suit bearing no. 703/97, (the instant suit), which was also before the Suit no. 104/10 Page no. 9/64 Hon'ble High Court and an exparte order dated 15.04.1997 to maintain status-quo, had been passed by the Hon'ble High Court.
20. It was stated that Sh. S.N Aggarwal, the then Ld. ADJ, Delhi instead of returning the plaint for being represented before the Court of competent jurisdiction, dismissed the aforesaid suit bearing no. 3/97 of the plaintiff by holding interalia that since the value of the property was beyond the pecuniary jurisdiction of the District Judge, Hon'ble High Court alone would have the jurisdiction in the matter to decide the rights of the parties in respect of the suit property. He further held that since the plaintiff had already filed a suit for similar relief (the instant suit), which was then pending in the Hon'ble High Court and since the higher Court was seized of the matter, the suit pending before the Court of ADJ, did not survive and the rights and liabilities of the parties would be adjudicated upon by the Hon'ble High Court.
21. It was stated that since after the institution of the suit and particularly after the amendment application dated 05.04.1999, the market value of the built up suit property was considerably reduced, in view of the creation of third party interest in the suit property in view of multifarious litigation known to all and as per the documents, agreement to sell etc filed by the defendants no. 4 and 5, the value of the suit property was Rs. 6,75,000/-, the plaintiff nevertheless valued the property for Rs. 7 lacs.
22. It was stated that defendant no.1 Smt. Ranjeet Kaur, since 09.01.1997 had been campaigning to enter into the house of the plaintiff and as such had not left India after 09.01.1997, but was staying with Sh Jagjiwan Singh at Sadar Bazar, Delhi for the purpose Suit no. 104/10 Page no. 10/64 of seeking assistance and help from the other persons besides local police to take the illegal and unlawful possession of the suit property and ultimately managed to occupy the same on 11.03.1997. It was stated that defendants no. 1 to 5 have no right, title or interest, of whatsoever nature in respect of the suit property in as much as it was the plaintiff, who was the absolute owner of the suit property and it was only he, who could have raised the construction on the plot of land. The occupation of the defendants have been illegal and unauthorized and as such the defendants are liable to the damages for unlawful use and occupation of the same @ Rs.25,000/- p.m w.e.f 05.12.2003, till the delivery of the possession of the suit property to the plaintiff.
23. It was stated that the defendant no.1 with the help of Sh. J.S. Sodhi, Sh. Lala Ram, an employee of Chawla Chick-in-Restaurant, Punjabi Basti and other security as well as non- security personnel entered into the house of the plaintiff on 11.03.1997 illegally and unauthorizedly. The defendant no.1 had got the police assistance in her favour by lodging a false complaint bearing no. 136/97 with P.S. Paschim Vihar, the FIR being based upon threads of lies and the case was falsely foisted upon the plaintiff and his entire family, so as to brow beat the plaintiff, but the plaintiff had been acquitted of the said charge, vide judgment dated 25.03.2003.
24. It was stated that the plaintiff had lodged a complaint to the police on 13.03.1997 and another at P.S.Pashim Vihar dated 19.03.1997 against the defendant no.1. The manner in which defendant no.1 had illegally and unauthorizedly occupied the house of the plaintiff, the defendant no.1 is likely to dispose off and part with possession of the house by selling, alienating or in any other manner creating any third party interest and handing over the Suit no. 104/10 Page no. 11/64 vacant possession to third persons and thereafter leave India as she is a permanent resident of Canada.
25. It was stated that the cause of action for filing of the suit arose in favour of the plaintiff and against the defendant no.1 on 26.02.1997 when defendant no.1 lodged a false complaint agaisnt the plaintiff at P.S. Paschim Vihar. It again arose on 09.05.1997 when defendant no.1 parted with possession of the suit property to defendants no. 2 and 3 in flagrant violation and intentional disobedience of the order dated 05.04.1997, by the defendants. It again arose on 16.03.1999 when the probate case, filed by defendant no.1, was dismissed. It further arose on 11.09.1998 and then on 05.04.2000 when the suit for declaration and injunction filed by defendant no.1 against the plaintiff, (seeking declaration interalia that the registered documents of title of the plaintiff were null and void), was dismissed by the Civil Judge, to the knowledge of the defendants. It again arose on 18.01.2002 when defendant no.2 and 3 parted with possession of the suit property to Sh. Gurcharan Singh and Smt. Savneet Kaur. It further arose on 04.07.2002 when defendant no.4 and 5 took possession of the suit property with full knowledge and notice that defendants no. 1 to 3 had no title in the suit property, that the plaintiff was the sole exclusive and absolute owner of the property in question vide a registered conveyance deed dated 17.07.1996, that the property was a free hold property in the name of the plaintiff only, and also that the property was a subject to a restraint order dated 05.04.1997, passed in this case. The cause of action again arose on 20.102.003 and thereafter when defendants no. 2 to 5 started damaging and demolishing the property in question and substantially damaged and demolished the same. The cause of action continues to accrue in as much as the defendants were out to completely demolish the suit property and had all Suit no. 104/10 Page no. 12/64 intentions not only to rebuild a three storied building with 2 flats on each floor but also to dispose off the same through the developers/builders. The cause of action again arose on 11.03.1997 and 01.03.1999 when Sh. S.N. Aggarwal, Ld. ADJ, Delhi dismissed the suit bearing no. 3 of 97 of the plaintiff for want of pecuniary jurisdiction (which was Rs. Five Lacs at that time) and observed that since the Hon'ble High Court had already seized the matter in suit no. 703/97 (the present suit) rights and liabilities of the parties in suit no. 3 of 97 relating to property in question would be more effectively adjudicated in suit no. 703/97. The cause of action continues in as much as the defendants have failed to surrender the possession of the property in question to the plaintiff and were also adamant to completely demolish, rebuild and sell the same.
26. It was stated that the property, which was the subject matter of the suit, was situated within the jurisdiction of this Court; parties to the suit resides and working for gain at Delhi; defendants no. 4 and 5 are presently in illegal and unauthorized possession of the suit property and had an intention to dispose of the property of the plaintiff an as such this Court had the jurisdiction to decide the present suit.
27. It was stated that the Court fees for the purpose of value of the suit for recovery of possession of immovable property was assessed at Rs. Seven Lacs on which the Court fee was being paid and that the value of the suit for grant of permanent injunction, which was already assessed at Rs. Ten Lacs, on which the Court fee had already been affixed. In order to bring the suti within the pecuniary jurisdiction of this Court, mesne profits were being claimed w.e.f 05.12.2003 only.
Suit no. 104/10 Page no. 13/64
28. It was prayed that a decree for recovery of possession of the property bearing no. 10/342, Sunder Vihar, New Delhi, be passed in favour of the plaintiff and against the defendants. It was also prayed that a decree of permanent injunction be also passed in favour of the plaintiff and against the defendants no. 1 to 5, thereby restraining defendants no.1 to 5, their agents, duly authorized attorneys or any other person, acting for and on their behalf, from transferring, alienating or dealing with in any manner, the property of the plaintiff bearing no. B-10/342, Sunder Vihar, New Delhi and defendants be further restrained from parting with possession of the suit property in any manner.
29. It was also prayed that a decree of permanent injunction be passed in favour of the plaintiff and against the defendants no. 1 to 5, thereby restraining defendants no. 1 to 5, their agents, employees, assignees, successors, attorney and/or any other person acting on their behalf from damaging, destroying and demolishing the remaining existing structure of the suit property and also from carrying out any building, rebuilding, additional alteration, brick, mortar or other construction work in or over the suit property.
30. It was also prayed that a decree of mesne profits, damages, unlawful use and occupation charges for use of the suit property @ Rs.25,000/- p.m w.e.f 0512.2003 till the delivery of possession of the suit property to the plaintiff, be also passed in favour of the plaintiff and against the defendants alongwith the costs of the suit.
31. Defendant no.1 Smt. Ranjit Kaur, since could not be served by ordinary process, was prayed by the plaintiff, to be served by way of publication in the Newspaper "Times of Suit no. 104/10 Page no. 14/64 India", Overseas Edison, which was circulated in Canada, for 17.03.1998. Thereafter, the plaintiff moved an application in February, 1998 before the Hon'ble High Court (when the matter was then subjudice) to get the defendant no.1 served through her Power of Attorney Holder Sh. Jag Jiwan Singh, which was allowed by the Court and subsequently, on the next date of hearing, Sh. Karamvir Singh counsel appeared for defendant no.1.
32. The WS was filed through the attorney Sh. Jag Jiwan Singh, on behalf of defendant no.1. however, subsequently, the initial suit was amended and opportunity was granted to the defendant to file the amended WS.
33. The amended WS was filed by defendant no.1 herself on 15.02.2006, wherein it was admitted that Sh. K.L. Bedi was the original Member of Low Income Group Govt. Servants Co-operative House Building Society, Sunder Vihar, New Delhi. It was also admitted that on 19.04.1984, the plaintiff agreed to purchase the said property from Sh. K.L. Bedi on the basis of the execution of POA and other relevant documents. The execution of the conveyance deed dated 17.07.1996 was also stated to be a matter of record and also that after the execution of the aforesaid conveyance deed, the plot bearing no. B-10/342, Sunder Vihar, New Delhi stood transferred in the name of the plaintiff. As regards, the payment of the agreed consideration of Rs. 49,900/- to Sh. K.L. Bedi, it was submitted that the said amount was taken from the bank account of the husband of defendant no.1. It was stated that since the payment was made from the bank account of her husband, she always had the bonafide belief, that the property in question, was the property of her husband. It was also admitted that the suit property was earlier a lease hold property, which was later converted to free hold, on the application of the plaintiff. It was Suit no. 104/10 Page no. 15/64 also admitted that since July, 1996, the suit property has been duly registered in the records of the DDA vide the registered conveyance deed, in favour of the plaintiff. It was also stated that since it was a matter of record, it was not denied that a formal endorsement in the record of DDA as well as on all the pages of the original perpetual lease deed of Sh. K.L. Bedi, the cancellation order and conversion of the property into free hold, were not mentioned. Defendant no.1 admitted that she had filed a probate petition bearing no. 154/90 (the subsequent no. 145/94) including the suit property in the list of property which formed the subject matter of the petition, but it was denied that she in connivance with local police of P.S Paschim Vihar, one Jagjiwan Singh S/o Sh. Sumer singh, defendant no.2 and 3 had criminally tress-passed into the suit property bearing no. 10/342, Sunder Vihar, New Delhi and had unlawfully dispossessed the plaintiff from the suit property. It was also admitted that the concerned Court of Sh. S.N. Aggarwal, Ld. ADJ, Delhi (as his lordship then was) had dismissed the probate petition bearing no. 145/94 vide judgment dated 16.03.1999.
34. The defendant no.1, however denied that she had ever appointed defendant no.2 as her General Attorney or that she had ever sold or agreed to sell the property in dispute to defendant no.2. She also denied ever executing any GPA in favour of defendant no.2. On the contrary, defendant no.1 had appointed Sh. Jagjiwan Singh S/o Sh. Sumer Singh, as per Special Attorney to look after and prosecute the aforesaid probate case and the suit bearing no. 3 of 1997, instituted by the plaintiff as well as another suit bearing no. 139/97, which was instituted by her. Sh. Jagjiwan Singh was also authorized only to take care of and manage the property in question in the absence of defendant no.1, as her attorney only.
Suit no. 104/10 Page no. 16/64
35. It was also admitted that defendant no.2 was the real brother of Sh. Jagjiwan Singh S/o Sh. Sumer singh, but it was denied that the defendant no.1 had appointed Sh. Jagjiwan Singh, as her attorney to represent defendant no.1, in the instant suit or to sign, verify or file the pleadings in the present case. It was stated that the WS filed by Sh. Jagjiwan Singh, on behalf of defendant no.1, in the present case initially, was not the WS of defendant no.1. Furthermore, defendant no.1 admitted that she had preferred a Civil Suit bearing no. 139/97 dated 15.03.1997 before the Ld. Civil Judge, Delhi. She also admitted that the said suit was later amended as a suit for declaration, mandatory and permanent injunction with a prayer that the documents of title with respect to the "property in question"
in favour of the plaintiff, may be declared as Null and Void. It was explained that defendant no.1 had a belief that the property in question, was owned by her husband only because the money, for its purchase, was taken out from the bank account of her husband. It was stated that before his death, the husband of defendant no.1 executed a Will in Canada, in which the property in question was not mentioned.
36. It was stated that when defendant no.1 filed the aforesaid probate petition, she was not aware of the property in question and as such no reference could be made in the schedule of properties, filed in the probate petition. It was stated that during the course of probate petition, defendant no.1 came to know that the money for purchase of the suit property, was paid from the bank account of her husband and as such, defendant no.1 amended the schedule of properties, filed in the said probate case, so as to include the property in question as well. In the said probate case, defendant no.1 was claiming her rights in the property in question on the basis of the Will executed by her husband, but Suit no. 104/10 Page no. 17/64 plaintiff did not agree for the same, and denied any right of the plaintiff in the said property.
37. It was denied that the defendant no.1 tress-passed into the suit property, though it was admitted that she had entered the house, under a bonafide belief that the property in question was owned by her husband and after his death, she had become the absolute owner thereof, by virtue of the Will dated 01.04.1990.
38. The contention of para no.6 © of the plaint was stated to be a matter of record, though it was denied that defendant no.1 alongwith her associates and accomplishes fraudulently procured an exparte judgment and decree dated 03.05.1997, passed by Sh. Vipin Kumar Gupta, Civil Judge, Delhi. It was denied that the said proceedings were being pursued and looked after by Sh. Jagjiwan Singh. It was also denied that in the proceedings u/s 145 Cr.P.C, defendant no.1 had ever authorized defendant no.2 to act as her GPA Holder. She further stated that para no.6 (E) & (F) of the plaint were also a matter or record and did not require any reply. It was however, stated that since Sh. Jagjiwan Singh S/o Sumer Singh was appointed as a SPA Holder to look after the case, he appeared in the appeal with counsel on behalf of defendant no.1.
39. It was denied that suit no. 139/97 filed by defendant no.1, against the plaintiff was dismissed vide judgment and decree dated 05.04.2000 by Sh. Sanjay Sharma, Civil Judge, Delhi. It was reiterated that defendant no.1 had instituted the said suit, since she was under the bonafide belief that the suit property was purchased by her husband. She also stated that later, on seeing the documents, filed by the plaintiff, it was revealed to her that there were no merits in her case and she had instructed Sh. Jagjiwan Singh not to Suit no. 104/10 Page no. 18/64 pursue the suit no. 139/97, after its remand by Sh. S.N. Aggarwal, Ld. ADJ, Delhi on 11.09.1999.
40. It was further denied that defendant no.1 was hand in gloves with Jagjiwan Singh, Majoj Kumar, Gurcharan Singh S/o Sh. Saran Singh, Savneet Kaur and defendant no.4 and 5.
41. The assertions made in para no.6 (K) were stated to be wrong and were therefore, denied. It was denied that defendant no.2 was ever in possession of the suit property on 09.05.1997. She also stated that the property in question was never sold or even agreed to be sold by defendant no.1 to defendant no.2 on 09.05.1997 or on any other date. She also admitted that there existed no lease hold rights in suit property in favour of any person as on 09.05.1997.
42. The contents of para no.6 (L) were also denied. It was denied that defendant no.3 was ever in possession of property in question on 09.05.1997 and that the property had never been sold or even agreed to sold, by defendant no.1 to defendant no.2 on 09.05.1997 or on any other date. The alleged agreement to sell dated 09.05.1997 as well as the said receipt dated 09.05.1997, allegedly executed by defendant no.1 in favour of defendant no.3 are false and fabricated documents. She also alleged that the documents was a creation of defendant no.2 and 3 in collusion with Sh. Jagjiwan Singh. She also denied that defendant no.3 or any other person, on his behalf, had ever paid a sum of Rs. 3,10,000/- to the defendant no.1 on 09.05.1997, as sale consideration. It was denied that any amount was paid to defendant no.1 by means of any Pay Order, as mentioned in the Suit no. 104/10 Page no. 19/64 alleged receipt dated 09.05.1997. It was stated that possession of the property in question was with defendant no.1 w.e.f 11.03.1997 till the time, she left for Canada in the year 1997 itself, and that defendant no.1 had authorized Sh. Jagjiwan Singh to take care of, look after and manage the property in question in the absence of defendant no.1.
43. The contents of para no.6 (M) (N) & (T) of the plaint were denied for want of knowledge, though it was stated that defendants no. 4 and 5 had no right, title or interest in the suit property.
44. The contents of para no. 6(R) & (S) were admitted, as far as they related to the record. It was further stated that she had no knowledge, if Manoj Kumar had moved any application dated 04.11.1997 u/o 1 rule 10 CPC in the suit baring no. 3 of 1997, to be made a party. It was reiterated that Sh. Jagjiwan Singh had been looking after the said case on behalf of defendant no.1, who never informed her about moving of such an application.
45. It was further submitted in the reply to para no.6(S) that the same was a matter or record and did not require any formal reply. Defendant no.1 also did not deny that in the suit bearing no. 3/97, counsel for defendant no.1 had objected to the maintainability of the suit for possession, instituted by the plaintiff on the ground that the District Court has no pecuniary jurisdiction to entertain and try the suit for possession, when the value of the suit property was more than Rs. Five lacs.
46. It was also not denied that the Hon'ble High Court in suit no. 703/97 had passed Suit no. 104/10 Page no. 20/64 a restraint order against defendant no.1 in April, 1997. It was submitted that defendant no.1 had not parted with possession of the property to any person and had never flouted the orders of the Hon'ble High Court in suit no. 703/97.
47. Contents of para no.6 (U) & (V) were also admitted and not denied.
48. It was denied that the defendant no.1 had been planning to enter into the house of the plaintiff at Sunder Vihar, and she had so forcibly occupied the suit property on 11.03.1997. It was however, not denied that defendant no.2 to 5 had no legal or equitable right, title or interest of whatsoever nature, in respect of the suit property. It was stated that defendant no.1 entered the suit property lawfully with the assistance of the police, being an old lady. It was further admitted that FIR was registered against her prior to 11.03.1997. It was stated that on 15.02.1997, defendant no.1 tried to enter the property in question, so as to live therein, during her stay in India, but the plaintiff did not permit the same. The plaintiff called the police and the defendant no.1 and her guard were taken to police station and a case was registered.
49. On 01.03.1997 defendant no.1 appeared before Ms. Sukhvinder Kaur, Ld. MM, Delhi and filed an application, requesting the Court to direct the police, to permit the defendant no.1 to live in the suit property. It was only thereafter, that defendant no.1 entered the suit property on 11.03.1997 and subsequently filed the suit bearing no. 139/97 on 15.03.1997 to protect her possession. It was denied that defendant no.1 was likely to dispose off or part with possession of the suit property by selling, letting or in any other manner. It was also stated that she had never parted with possession nor did she had any Suit no. 104/10 Page no. 21/64 intention to part with the possession of the suit property to any one, against the orders of the Court. It was further stated that Sh. Jagjiwan Singh was introduced to defendant no.1 by Sh. J.S. Sodhi and in the year 2003, even she sent her son from Canada to India to meet Jagjiwan singh and to handover the possession of the property in question to the plaintiff.
50. It was stated that defendant no.2 and 3 had colluded with Jagjiwan Singh, to forged and fabricated documents, so as to lay their false claim in the suit property. Sh. Jagjiwan Singh was introduced to defendant no.1 by Sh. J.S. Sodhi. To her knowledge Jagjiwan Singh was taking care of the suit property and that it was only during his visit that son of the defendant no.1 informed her about fabrication of the documents in collusion with defendants no. 2 to 5. It was admitted that now she was not in possession of the suit property and therefore, no cause of action survives against the defendant no.1.
51. It was prayed that the suit of the plaintiff be dismissed qua defendant no.1. It needs to be noted, at this juncture, that the plaintiff entered into a compromise agreement with defendant no.1, as told to the Court on 29.03.2004 and that, it was thereafter, that the amended WS was filed on behalf of the defendant no.1. However, the compromise did not actually get affected.
52. During the pendency of the suit, it was stated by the plaintiff that defendant no.1 had sold of the property to one Sh. Manoj Kumar on the basis of forged and fabricated agreement to sell, Will and receipt etc and had delivered the possession to him. It was also stated that she had executed a GPA in favour of Sh. Harbans singh, authorizing him to Suit no. 104/10 Page no. 22/64 act on her behalf in respect of the property in question, as detailed in the said GPA and that both the said Harbans Singh and Manoj Kumar have now becomes necessary parties. It was therefore, prayed that they be impleaded as necessary parties and arrayed as defendant no.2 and defendant no.3. The said prayer of the plaintiff was allowed. The said proposed defendant Harbans Singh was duly served for 14.07.2003, but he did not enter an appearance despite service. Since the proposed defendant Manoj Kumar could not be served, thereafter, since another application was moved on behalf of the plaintiff that Harbans Singh and Manoj Kumar were demolishing the construction on the suit property, another notice was issued to Harbans Singh, which was finally served upon him by way of affixation. However, since defendant no.3 entered an appearance through his counsel Sh. Ashok Kumar Bhardwaj, who did not oppose the application u/o 1 rule 10 CPC , the application u/o 1 rule 10 CPC was allowed and Sh. Harbans Singh and Sh. Manoj Kumar were arrayed as defendant no.2 and defendant no.3. Since defendant no.2 Sh. Harbans Singh did not enter an appearance, he was proceeded exparte vide order dated 12.11.2003. Since defendant no.3 Sh. Manoj Kumar also did not enter an appearance, he was also proceeded exparte.
53. An application was moved u/o 1 rule 10 CPC on behalf of the present defendant no.4 Sh. Arun Kumar Dawar and defendant no.5 Smt. Usha Dawar for being impleaded them, as necessary parties and it was prayed that since they had purchased the suit property from the owners, it was they, who were now in possession of the suit property and therefore, their application was allowed and they were arrayed as defendant no.4 and 5 in the instant case.
54. The written statement was filed jointly on behalf of the defendant no.4 Sh. Arun Suit no. 104/10 Page no. 23/64 Kumar Dawar and defendant no.5 Smt. Usha Dawar, wherein the preliminary objections were taken to the effect that this Court did not have any pecuniary jurisdiction to try the matter. It was also stated that the suit of the plaintiff did not disclose any cause of action and was liable to be dismissed with costs. It was urged that the plaintiff had filed the instant suit for permanent injunction and possession etc, on the ground that he is the owner of the suit property, on the basis of a registered conveyance deed dated 17.06.1996 executed in his favour by the DDA, on the basis of documents like agreement for construction, GPA, Affidavit, indemnity bond etc., allegedly executed by Sh. K.L. Bedi on 19.04.1984, on receipt of the payment of Rs. 49,900/- on 27.04.1984. It was stated that it was pertinent to mention that the said receipt dated 27.04.1984 does not relate to the suit property, as there is no mention about the suit property in the same and also because the said receipt and the other documents, were executed allegedly in favour of three persons namely Sh. Gurcharan Singh Chawla,the plaintiff, Sh. Jasbender Singh and Harjit Singh, but the conveyance deed is in the name of the plaintiff.
55. It was contended that even if the above documents are taken to be true, they do not create any legal right of ownership of the plaintiff. It was further stated that the cost price of the suit land was paid to Sh. K.L Bedi , through a Pay Order bearing no. 362905/1705 dated 21.04.1984, drawn upon the Syndicate Bank, Dev Nagar Branch, New Delhi and the said payment for issuing of the above Pay Order was paid by Sh. Hira Singh Chawla (father of the plaintiff) from his bank account bearing no. 748. Since the price consideration of the plot was paid by Sh. Hira Singh Chawla, who was also a co-purchaser alongwith Ranjit Kaur (defendant no1), therefore, the entire case of the plaintiff, claiming himself to be the owner of the suit property was demolished by his own assertion. Suit no. 104/10 Page no. 24/64
56. It was also urged that the version of the plaintiff that he had been forcibly and unlawfully dispossessed by Smt. Ranjit Kaur (defendant no.1), was a totally fabricated and imaginary story and could not be believed upon, since before this Court, he had given the date of dispossession of March, 1997 whereas in a complaint case, filed by the plaintiff against the defendant no.1 in the Court of Sh. Shahbuddin, Ld. MM, Delhi, he had stated that the defendant no.1 forcibly entered into the suit property on 18.02.1997 and that a scuffle had taken place, which even lead to defendant no.1 sustaining a fracture in her hand, and a case bearing FIR no. 136/97 was lodged against the plaintiff.
57. It was also stated that the plaintiff had not come to the Court with clean hands and therefore, was not entitled to the reliefs sought for, as he was guilty of suppression and false assertions.
58. It was further stated that the suit of the plaintiff was liable to be dismissed on the following grounds:-
a) On 10.03.1997 the plaintiff filed a suit bearing no. 3/97, before the District Judge, Delhi initially for permanent injunction, which was assigned to Sh. S.N. Aggarwal, Ld. ADJ, Delhi (as his Lordship then was). On 08.05.1998, he moved an application u/o 6 rule 17 CPC for adding the reliefs of declaration and possession in the said suit, which was allowed by the Court vide order dated 03.06.1998. In the original plaint the value of the suit was assessed to be Rs. Five lacs, when only the relief of permanent injunction was sought, but after amendment the value of the suit was reduced to Rs. 3,50,000/-, though two other reliefs were added.
b) During the pendency of the said suit bearing no. 3/97, on 25.03.1997, the plaintiff filed another suit bearing no. 703/1997, before the Hon'ble High Court (the instant Suit no. 104/10 Page no. 25/64 suit) for permanent injunction in respect of the same subject matter, without disclosing that he had already filed a suit bearing no. 3/97 before the Ld. ADJ, Delhi.
c) On 01.03.1999, it was brought to the notice of Ld. ADJ, Delhi in suit no. 3/97 by Mr. Bajaj, counsel for defendant no.1, that the plaintiff had filed the instant suit before the Hon'ble High Court, without disclosing the filing of the suit bearing no. 3/97 and therefore, the suit bearing no. 3/97 for permanent injunction, declaration and possession was dismissed by the Ld. ADJ, Delhi, thereby holding that the intention of the plaintiff in filing the two suits, for the same relief, one before the Ld. ADJ, Delhi and one before the Hon'ble High Court, appears to be malafide and it also seems that he had not approached the Court with clean hands. It was further held in suit bearing no. 3/97 that since two parallel proceedings for the same relief, cannot continue, therefore, the suit bearing no. 3/97 was dismissed instead of returning the same to the plaintiff or granting him the opportunity to withdraw the suit and was given the liberty to pursue the instant suit.
d) In the suit bearing no.703/97, (the instant suit) also the plaintiff had not disclosed that he had already instituted a suit, pending before the Ld. ADJ, Delhi and therefore, the plaintiff had not approached the Hon'ble High Court and this Court (due to change of pecuniary jurisdiction) with clean hands, but had rather committed a gross misused of law.
e) The plaintiff had suppressed and concealed the fact that in para no.3 of the prayer clause of the amended plaint, he had filed a counter claim against the defendants no.1 to 5, restraining them from damaging/destroying the super structure of the suit property. He had already filed the counter claim bearing no. 440/03 before the Court of Ms. Vrinda Kumari, Ld. CJ, Delhi, which was subsequently withdrawn by him, from the said Court and as such he had made mockery of the Court.
f) It was also stated that the suit of the plaintiff was barred u/o 2 Rule 2 CPC and is therefore, liable to be dismissed. It was also urged that the suit of the plaintiff was bad in law and was liable to be dismissed. In the suit bearing no. 3/97 the plaintiff had sought the Suit no. 104/10 Page no. 26/64 relief of declaration of title alongwith other reliefs and on dismissal of the said suit, the said relief of the plaintiff is relinquished. Furthermore, in the earlier amended application u/o 6 rule 17 CPC, moved by the plaintiff, in suit before the Hon'ble High Court, bearing I.A. No. 4936/99, he had sought the relief of declaration of his right, title and ownership, but the said application was abandoned by him and as such the said relief for declaration of his title over the suit property, is not being sought for by him, even in his amended plaint and therefore, the suit as amended, is liable to be dismissed as no relief can be sought by him, without seeking the relief of declaration of his title over the suit property.
g) The suit of the plaintiff is a total misuse of the process of law, as the plaintiff is claiming to be the owner of the suit property, on the basis of the false deed dated 17.70.1996 executed by the DDA, on the basis of the documents i.e construction agreement, GPA, indemnity bond, affidavit etc. dated 19.04.1984 and the receipt dated 27.04.1984 purportedly executed by Sh. K.L. Bedi, the original lessee of the property. The said documents, on their face value, if taken to be correct, do not constitute any sale of the suit property by Sh. K.L. Bedi and the amount as shown, was allegedly paid by the plaintiffs and his two brothers namely Sh. Jasbinder Singh and Sh. Harjit Singh, as a security of the construction agreement, which was liable to be refunded by Sh. K.L. Bedi. It was made clear that the plaintiff was only a Contractor, appointed by Sh. K.L. Bedi and not the purchaser of the suit property and in such capacity, the plaintiff had misused the said documents, showing himself as a purchaser, instead of contractor and in connivance with the officers of DDA, he procured the said conveyance deed, from lease hold to free hold, the conversion charges for which were paid by Sh. Harbans singh and Manoj Kumar, to DDA.
h) It was also urged that the amended plaint is not filed on the lines and the words, as per the application for amendment. In the title of the suit the words "Mesne Profits"
had been added, whereas, it was not sought in the application.
59. On merits, it was denied that the plaintiff was a purchaser of the plot Suit no. 104/10 Page no. 27/64 measuring 256 sq. yds from Sh. K.L. Bedi or that he had paid the agreed consideration amount vide the receipt dated 27.04.1984. It was stated that the plaintiff had forged and fabricated the said documents like GPA, affidavit and the receipt etc in question. It was stated that Sh. K.L. Bedi had never sold the suit property to plaintiff at any point of time, but rather he had sold the same to defendant no.1 and her husband Sh. Heera Singh Chawla for a total consideration of Rs. 49,000/-, which was paid by defendant no.1 to Sh. K.L. Bedi vide Pay Order bearing no.362905/1705 dated 21.04.1984, drawn on Syndicate Bank, Dev Nagar, Branch on 27.04.1984, before the Sub-Registrar, Noida, Ghaziabad, UP and Sh. K.L. Bedi executed the sale docuemnts in favour of Smt. Ranjit Kaur and Sh. Hira Singh Chawla. Sh.
Hira Singh Chawla executed a Will on 01.04.1990 in favour of Smt. Ranjit Kaur in Canada, as both were settled there. Sh. Hira Singh Chawla died on 03.04.1990 and as such, after his death Smt. Ranjit Kaur became the absolute owner of the suit property.
60. On 09.05.1997, Smt. Ranjit Kaur sold the suit property to defendants no. 2 and 3 for a total consideration of Rs. 3,10,000/- and executed all the necessary documents in their favour. Defendants no. 2 and 3 further sold the suit property to one Sh. Gurcharan Singh S/o Sh. Saran Singh and Smt. Savneet Kaur W/o Sh. Amit Pal Singh on 18.01.2001 for a total consideration of Rs. 6,50,000/- vide agreement to sell, GPA, etc., who in turn sold the suit property to defendants no. 4 and 5 for a total consideration of Rs.6,75,000/- vide agreement to sell, GPA, receipt, possession letter etc. dated 04.07.2002. The said Sh. Gurcharan Singh and Smt. Savneet Kaur handed over the peaceful vacant possession of the suit property to defendant no.4 and 5 on 04.07.2002 and since then they had been in uninterrupted possession of the suit property.Suit no. 104/10 Page no. 28/64
61. It was stated that the plaintiff had got executed the conveyance deed dated 17.07.1996 in his favour from DDA on the basis of false and fabricated documents, apparently in active connivance with the DDA officials. It was also stated that if the said documents are taken to be correct, they do not constitute any sale of the suit property on the face of it, in favour of the plaintiff, while the receipt dated 27.04.1984, which is the basis of the alleged transaction, does not relate to the suit property and moreover, it is in favour of three persons, including the plaintiff, but the conveyance deed was executed only in favour of the plaintiff, to the exclusion of the other two persons, by DDA and as such, the plaintiff had misused the said documents in connivance with DDA.
62. It was stated that plaintiff was merely a Contractor, under the agreement for construction dated 19.04.1984 and therefore, the said conveyance deed dated 17.07.1996 had no legal sanctity and was liable to be cancelled by DDA. It was further denied that after the purchase, the plaintiff had got the property converted into free hold from lease hold and paid the conversion charges to the DDA. It was stated that defendants no.2 and 3 had also applied for conversion of the said property and deposited the conversion charges with DDA.
63. Further in reply to the last sub-para of para no.1 of the amended plaint, it was stated that Sh. K.L. Bedi had sold the suit property to defendant no.1 and her husband on 27.04.1984 and that the conveyance deed dated 17.07.1996 in favour of the plaintiff, had no legal sanctity, as the plaintiff had obtained the same by misrepresentation and by using false and fabricated documents. It was also denied that this fact of execution of conveyance deed in favour of the plaintiff, was in the knowledge of the defendants no. 4 and 5. Rather it came into their knowledge for the first time, when a dispute arose at the site, between the plaintiff and defendants no. 4 and 5 on 20.10.2003 when the plaintiff claimed his ownership Suit no. 104/10 Page no. 29/64 over the suit property.
64. It was also denied that the plaintiff got the plan sanctioned from MCD or that he raised any construction or completed the same, over the suit property, as an owner. As per the transaction between the plaintiff and Sh. K.L. Bedi, if taken to be true, the plaintiff was only the construction contractor and therefore, he could not get the plan sanctioned from the concerned authority to raise construction from the funds of Sh. K.L. Bedi, to obtain the completion certificate, to get the property assessed to house tax etc. only in the name of Sh K.L. Bedi and not in his name.
65. The remaining assertions, made by the plaintiff, were denied for want of knowledge or were stated to be matter of record and not requiring any comments from defendants no. 4 and 5. It was however, denied specifically that defendant o.1 in connivance with the local police, one Jagjiwan Singh, defendants no. 2 and 3 and others had criminally trespassed into the suit property and unlawfully dispossessed the plaintiff. Infact, the plaintiff had never been in possession of the suit property, as alleged, as was evident from a complaint, which was made by the plaintiff before the concerned Court of Ld. MM, Delhi on
18.02.1997 and therefore, the question of forcible dispossession of the plaintiff from the suit property on 11.03.1997 does not arise. Infact, it was the plaintiff, who tried to dispossess the defendant no.1 from the suit property on 18.02.1997 and again on 27.02.1997, when he attacked on defendant no.1 alongwith his accomplices and had ransacked the house in respect of which an FIR bearing no. 136/97 was lodged against the plaintiff and his family members u/s 380/325/323/34 IPC, since the plaintiff had an evil eye on the suit property. The defendant no.1 filed a suit bearing no. 139/97 against the plaintiff, which was decreed exparte Suit no. 104/10 Page no. 30/64 by the Court of Sh. Vipin Kumar Gupta, Ld. Civil Judge, Delhi vide judgment dated 03.05.1997, though it was admitted that the said judgment was set aside in the appeal, which was preferred by the plaintiff, as defendant no.1 did not contest the same properly, as she had lost her interest in the suit property, as she was settled in Canada.
66. In respect of the probate case, filed by the defendant no.1 against the plaintiff, it was stated that after the defendant no.1 sold the property to defendants no. 2 and 3, she lost interest in litigating the case, preferred by her and therefore, both the cases i.e the Civil Suit and the probate case, were not properly pursued. However, it was stated that the defendant no.1 filed a probate case before the Superior Court, District of Monteral, Province of Quebec, Canada, against the plaintiff herein and other family members and the said Will of Sh. Hira Singh Chawla, dated 01.04.1990 was probated vide judgment dated 26.05.1999 and defendant no.1 became the absolute owner of the suit property.
67. The dismissal of the suit no. 139/97 and 440/03 was admitted. However, it was denied that the defendants no. 4 and 5 had ever demolished the super structure, due to which the valuation of the property had gone down. It was stated that the value of the suit property had increased considerably to Rs. 30 lacs, but that the plaintiff had deliberately under valued the suit property for the purposes of Court fee. It was denied that defendant no.1 had unlawfully occupied the suit property and thereafter, without having any right, title or interest in the suit property, had transferred the possession of the same, on the basis of false documents to the remaining defendants and ultimately to defendants no. 4 and 5. It was specifically denied that defendants no. 4 and 5 did not have any legal or equitable right, title or interest in the suit property or that the plaintiff was the absolute owner of the suit property. Suit no. 104/10 Page no. 31/64 It was denied that the plaintiff was entitled to any decree of possession or injunction in his favour or was entitled to recover the mesne profits/damages for the alleged unlawful use and occupation from the defendants. It was denied that there was any unlawful possession of the suit property by the defendants. It was stated that the suit was not maintainable, during the pendency of the earlier suit bearing CS No. 3/97 between the same parties, by concealing material facts from the Court. It was stated that the suit was malafide one, based on a fraud and it was prayed that the same be dismissed with costs.
68. An application u/o 39 rule 1 and 2 CPC had been moved on behalf of the plaintiff, seeking interim injunction against the defendants from selling, alienating or creating any third party interest in the suit property, but the same was not adjudicated upon for the reasons given by the Ld. Predecessor of this Court in the proceeding sheet dated 07.11.2003. However, vide order dated 04.04.1997, the Hon'ble High Court (where the matter was then pending), directed that till the next date of hearing, the parties shall maintain status quo and this interim order, as revealed from the proceeding sheets, was ordered to be continued till 13.01.1998, as reflected in the order sheet dated 21.11.1997. Thereafter, there was no continuation of this interim order. However, when defendants no. 4 and 5 entered an appearance and were arrayed as defendants in the instant case, they made an oral submission before the Ld. Predecessor of this Court on 28.11.2003 that they shall not sell the property till the next date of hearing. Thereafter, vide order dated 05.12.2003 the Predecessor of this Court directed defendants no. 4 and 5 not to hand over the possession of the suit property to anyone till disposal of an application u/o 6 rule 17 CPC moved on behalf of the plaintiff, but thereafter, no further orders in this respect were passed. As per record till date the possession remained with defendants no. 4 and 5.
Suit no. 104/10 Page no. 32/64
69. On the basis of the pleadings of the parties, following issues were framed on 06.03.2006:-
1. Whether the plaintiff is entitled to the decree of possession of the suit property, as prayed for? OPP
2. Whether the plaintiff is entitled to the decree of mesne profits/damages and unauthorized use and occupation charges of the suit property?OPP
3. Whether the plaintiff is also entitled to the decree of permanent injunction, as prayed for? OPP
4. Whether the court has no pecuniary jurisdiction over the subject matter as alleged by defendants no. 4 and 5? OPD (4 & 5)
5. Whether the present suit is barred under Order 2 Rule 2 CPC, as alleged by defendants no. 4 & 5? OPD (4 & 5)
6. Whether the plaintiff is not the owner of the suit property as alleged by defendants no. 4 & 5? OPD ( 4&5)
7. Whether the plaintiff has no cause of action to file the present suit, as alleged, by defendants no. 4 & 5? OPD (4 & 5).
8. Relief.
70. To substantiate his case, the plaintiff entered the witness box as PW1 and deposed on an affidavit, which he proved as Exh. PW1/A, bringing on record the original registered conveyance deed, executed by the DDA, in the name of the plaintiff as Exh. PW1/1, the letter from the DDA reaffirming the title of the plaintiff in respect of the suit property, vide letter dated 19.07.2004 as Exh. PW1/2. The house tax certificate, issued by the MCD, the original sanctioned plan of the suit property, the original form H, of The Delhi Cement (Licencing & Control Order) 1982, showing the dispatch of the cement for the construction of the suit property are Exh. PW1/3, Exh. PW1/9, Exh. And PW1/10 to Exh. Suit no. 104/10 Page no. 33/64 PW1/12 respectively. Certain other receipts, electricity bills from different authorities, water bills, the MTNL receipts, showing the installation of the MTNL telephone in the suit property, in the name of the plaintiff are Exh. PW1/13 to Exh. PW1/44. The 28 telephone bills in the name of the plaintiff are Exh. PW1/46 to Exh. PW1/72. The receipts showing the payment of the maintenance charges and the ground rent in respect of the suit property are Exh. PW1/73 to Exh. PW1/80. The original Challan dated 18.06.1996, showing the deposit of the conversion charges of Rs. 2668/- being deposited by the plaintiff with the DDA for conversion of the lease hold rights of the property to free hold rights, in favour of the plaintiff is Exh. PW1/82 and the intimation letter from the DDA to the plaintiff, intimating that conversion is Exh. PW1/83. The original perpetual sub-lease of the suit property bearing the endorsement of cancellation of the lease hold rights is Exh. PW1/84.
71. Certain other receipts are Exh. PW1/85 and Exh. PW1/86 while the original completion certificate dated 27.08.1996 is Exh. PW1/87. After the execution of the conveyance deed, the plaintiff applied before the MCD for sanctioning of the plan and the stacking charges/betterment charges, were all deposited with the MCD and the receipts in lieu thereof have been placed on record as Exh. PW1/88 to Exh. PW1/93. Correspondences between the MCD and the plaintiff regarding sanctioning of the plan of first floor are Exh. PW1/94 to Exh. PW1/97. The original site plan of the suit property, duly sanctioned by the MCD is Exh. PW1/98. Certain other receipts showing the payment made by the plaintiff to the MCD in respect of the suit property are Exh. PW1/99 to Exh. PW1/104 while the notice issued by the MCD to the plaintiff for fixation of the ratable value of the suit property is Exh. PW1/105. The certified copies f the different judgments, application and the orders in various other litigations between the parties, which were relevant for the disposal of the present case Suit no. 104/10 Page no. 34/64 have also been brought on record as Exh. PW1/106 to Exh. PW1/123. The original layout plan of the society, where the suit property was situated is Exh. PW1/124. The original registered receipt showing the payment of Rs. 49,900/- is Exh. PW1/125. The original receipt of the office of Sub-Registrar regarding registration of the perpetual sub-lease deed is Exh. PW1/127 and a letter dated 25.07.1983 issued by Sh. K.L. Bedi to DDA regarding extension of time for construction over the suit property is Exh. PW1/128 and permission letter from Sh. K.L. Bedi to the plaintiff is Exh. PW1/129.
72. An enquiry report against Sh. Manoj Kumar for rejecting his objections and his application for mutation of the property in his name, intimated to the plaintiff vide letter dated 19.11.2003 which is Exh. PW1/130. NOC from the society obtained by Sh. K.L. Bedi and handed over to the plaintiff is Exh. PW1/131, another NOC obtained by the plaintiff from the society is Exh. PW1/132. The payment of Rs. 1886.75/- to DDA by the plaintiff vide receipt is Exh. PW1/133 while the other original receipts made to DDA are Exh. PW1/134 to Exh. PW1/138. The correspondences of the plaintiff to the DDA for execution of the docuemnts is Exh. PW1/142. The judgment/order of the Court of Ms. S.S. Maan, in FIR no. 136/97 is Exh. PW1/143. The proceeding sheet and the copy of the order of SDM in a case u/s 425 Cr.P.C are Exh. PW1/144 to Exh PW1/145.
73. After close of PE, no evidence was led by the defendant no.1 or 5, while defendants no. 2 and 3 were already exparte.
74. Defendant no.4 entered the witness box as DW1 and deposed on an affidavit, which she proved as Exh. DW1/A and brought on record two purported GPA, Suit no. 104/10 Page no. 35/64 executed by Sh. K.L. Bedi in favour of Smt. Ranjit kaur (defendant no.1) and Sh. Hira Singh, father of the plaintiff, on 27.04.1984 as Exh. DW1/1 and Exh. DW1/1-A. The agreement to sell, the Will, possession letter, receipt, SPA and GPA, all dated 09.05.1997, executed by defendant no.1 in favour of defendant no.2 in respect of the suit property are Exh. DW1/2 to Exh. DW1/7 Defendants no. 2 and 3 thereafter, as attorney of defendant no.1 transferred the suit property to one Sh. Gurcharan Singh and Savneet Kaur on 18.01.2001 vide registered agreement to sell and registered GPA, both dated 18.01.2002 as Exh. DW1/8 and Exh. DW1/9 respectively. Thereafter, Gurcharan Singh and Smt. Savneet Kaur transferred the suit property to defendant no.4 and his wife Usha, who is defendant no.5, vide the registered agreement to sell Exh. DW1/10 and GPA Exh. DW1/11, Will Exh. DW1/12 and Exh. DW1/13, possession letter Exh. DW1/14, receipt Exh. DW1/15 and affidavit of Sh. Gurcharan Singh Exh. DW1/16, all dated 04.07.2002.
75. I have heard Sh. Rajesh Harnal counsel for the plaintiff and Sh. S.K. Gupta counsel for defendants no. 4 and 5, perused the record, scrutinized the evidence adduced and the relevant case law. My issue-wise findings are as under:-
ISSUE No.4:-
" Whether the court has no pecuniary jurisdiction over the subject matter as alleged by defendants no. 4 and 5?" OPD (4 & 5)
76. The onus to prove this issue was upon the defendants no. 4 and 5, who had taken an objection to this effect. To discharge the onus, defendant no.5 did not enter the witness box to substantiate her case and therefore, there was no effort ever made by the defendant no.5 to fortify her version in the Court.
Suit no. 104/10 Page no. 36/64
77. Defendant no.4 entered the witness box as DW1 and deposed on an affidavit, which was taken on record as Exh. DW1/A. However, in his entire testimony, not a word was uttered by him, about this Court not having the pecuniary jurisdiction to adjudicate upon the matter in hand and thus, both the defendants no. 4 and 5 have miserably failed to discharge the onus, which had been placed upon them.
78. However, since the issue of pecuniary jurisdiction remained a legal one, it needs to be tackled with, especially when an objection has been raised, though an unsubstantiated one. The suit of the plaintiff has been valued for the purposes of Court fee and jurisdiction at the market value, at the time of filing of the suit, at Rs. Ten lacs. The defendant no.4, who entered the witness box as DW1, has admitted in his cross-examination, conducted on 02.07.2008, that the market value of the property in question, was between Rs. 7 to 7.5 lacs, as on 04.07.2002. He also admitted the suggestion of the Ld. Counsel for plaintiff that the market value of the property in 1997 was less than Rs. Seven lacs. As per the assertion of defendant no. 4 and 5 in the written statement, they have purchased the property in question for Rs. 6.5 lacs and therefore, the valuation of the property at Rs. seven lacs, at the time of filing of amended plaint, apparently more than the admitted market value of the suit property. In the written statement, defendants no. 4 and 5 have categorically stated that they had purchased the suit property jointly for a total consideration of Rs. 6,75,000/- vide agreement to sell, GPA, receipt, all dated 04.07.2002.
79. Part of the Court fee has already been paid by the plaintiff, at the time of institution of the suit and the deficient Court fee of Rs. 10,200/- has since been deposited by Suit no. 104/10 Page no. 37/64 the plaintiff in the Court on 23.08.2010, by moving an application u/s 151 CPC seeking permission to place the same on record, which was allowed.
80. It is also to be kept in mind that valuation of the suit property, which is pertinent for assessing the pecuniary jurisdiction of the Court, is on the date of institution of the suit and not at the time of adjudicating upon the same. Since admittedly the value of the suit property, must have been less than Rs. Seven lacs, at the time of institution of the suit and even at the time when the suit was amended to add the relief of possession, the suit is deemed to have been properly valued and this Court does have the pecuniary jurisdiction to adjudicate upon the matter in hand.
Issue o.4 is accordingly decided against the defendants and in favour of the plaintiff.
ISSUE NO.5 & 7 :-
5. "Whether the present suit is barred under Order 2 Rule 2 CPC, as alleged by defendants no. 4 & 5?" OPD (4 & 5)
7. "Whether the plaintiff has no cause of action to file the present suit, as alleged, by defendants no. 4 & 5?" OPD (4 & 5).
81. The onus to prove the said issues was upon the defendants no. 4 and 5, who have taken up the legal plea that the instant suit is barred, as per provisions of Order 2 Rule 2 CPC, since in a previously instituted suit bearing CS No. 3/97, which had been instituted by the plaintiff before the Ld. District Judge, Delhi and was assigned to the Court of Sh. S.N. Aggarwal, the then Ld. ADJ, was initially for permanent injunction against the defendant no.1 in which the relief of permanent injunction was sought initially but subsequently the relief of Suit no. 104/10 Page no. 38/64 declaration and possession were also incorporated, by moving an appropriate amendment application.
82. During the pendency of the said suit, which was instituted on 10.03.1997, the plaintiff filed the instant suit bearing original CS No. 703/97 on 25.03.1997 before the Hon'ble High court for permanent injunction in respect of the same subject matter, without disclosing that he had already filed a suit bearing CS No. 3/97 before the Ld. ADJ, Delhi, seeking the same relief. It was urged that since an earlier suit had already been filed against the same defendants, and it was between the same parties and in respect of the same suit property, the relief of possession, which is being sought for in the instant suit, could easily have been sought for by the plaintiff in the former suit bearing CS No. 3/97 before the Ld. ADJ, Delhi and that therefore, the instant suit was barred under Order 2 Rule 2 CPC.
83. During the course of arguments in the instant case, Ld. Counsel for defendant contended that the present suit, which was the second suit, between the same parties, on the same cause of action, was not maintainable as the previously instituted suit bearing CS No. 3/97 of the plaintiff seeking the permanent injunction and subsequently by way of amendment, seeking the relief of declaration and possession, was dismissed vide Order dated 01.03.1999, of Sh. S.N. Aggarwal, the then Ld. ADJ, Delhi.
It was elucidated that order dated 01.03.1999 was -
(a) not an order of return of plaint
(b) a decision on merits and
(c) observations of the Ld. Court made in the order about suppression of material facts by the plaintiff, from the Court, is pertinent. The order was not just a simplicitor order, but it was a decree which was appeal able one. Suit no. 104/10 Page no. 39/64
84. It was also contended that as per Sec. 11 and 12 of the CPC, the institution of the further suit on the same ground and cause of action is barred. It was urged that since the first suit bearing CS No. 3/97 had been adjudicated upon and a decree had been passed, Sec. 11 of CPC i.e Resjudicata, would apply and the suit would not be maintainable. It was also contented that even if the trial had continued, it cannot be presumed that the objection of resjudicata had been waived off.
85. It was also contended by the Ld. Counsel for defendants that the relief of injunction and possession are based upon equity and since as per the observations of the Ld. ADJ, vide order dated 01.03.1999, the first case, which had been dismissed, there appears to be a suppression of facts, equitable relief cannot be granted.
86. On the other hand, the contention of the Ld. Counsel for the plaintiff, on this issue was that the earlier suit bearing CS No.3/97, which was disposed off vide order dated 01.03.1999 by the Ld. ADJ on the ground that since the Hon'ble High Court was already seized of the matter and it had been submitted by the Ld. Counsel for the defendants that the Court of Ld. ADJ, did not have the pecuniary jurisdiction to try the suit in hand and that the dispute between the parties, was best adjudicated before the Hon'ble High Court, where the instant suit was pending, Ld. ADJ in the order dated 01.03.199, mentioned all these facts and disposed off the suit on the ground that it did not have the pecuniary jurisdiction to try the suit in hand. It was stated that the order dated 01.03.1999 of the Ld. ADJ was not a decision on merits. It was also urged that the principle of resjudicata never applies on the question of jurisdiction. It was also urged vehemently that the stand of the defendant was an inconsistent Suit no. 104/10 Page no. 40/64 one and no party can be allowed to approbate/reprobate, meaning thereby that a party should not be allowed to take shifting and inconsistent stands in different suits and pleadings and it was for the Court to see that the parties did not take any benefit from their shifting stand in different litigations.
87. I have considered the rival contentions of the parties on the said issue. Before proceeding further, Sec. 9, 11, and 12 of CPC are reproduced herein below for ready reference:-
Sec.9:- Courts to try all civil suits unless barred-- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Sec.11-- Res Judicata-- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Sec.12-- Bar to further suit-- Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.
88. It would not be out of place, at this juncture, to refer to Order 2 Rule 2 CPC, also which reads as under:-
Order 2 rule 2 :- Suit to include the whole claim--
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.Suit no. 104/10 Page no. 41/64
(2) Relinquishment of part of claim-- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs-- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
89. From the bare reading of the said Sections, it is clear that resjudicata is a procedural principle which bars the neagitation of an issue, which has been decided on merits, by a Court of competent jurisdiction, in an earlier adjudicated matter.
90. Order 2 rule 2 CPC bars the filing of subsequent suits and claiming a relief, which could easily have been raised during the course of his previous litigation between the parties. The scope of Order 2 Rule 2 CPC has been explained by the Hon'ble High Court in "Sidramappa Vs. Raj Sheti AIR 1970, SC 1059" and further propounded by the Hon'ble High Court in "Birla Cement Works Vs. State of Rajasthan, AIR 2000 Raj. 251(DB)", wherein their Lordships have explained that the cause of action is a cause which gives occasion for and forms the foundation of the suit. The principle underlying the provision of Order 2 Rule 2 CPC is that the plaintiff is not allowed to split the relief arising out of the same cause of action, by filing separate suits. No one should be vexed twice, by splitting the claims and by splitting the remedies. However, it is not envisaged that a suit should include also the relief in the first instance in respect of the cause of action, which arises subsequent to the filing of the suit, giving foundation for new proceedings.
91. The doctrine of resjudicata in substance means that an issue or a point Suit no. 104/10 Page no. 42/64 decided and attaining finality should not reopen and be re-agitated twice over. Resjudicata literally means " a matter adjudged; a thing judicially acted upon or decided; a thing or a matter settled by a judgment."
92. Section 11 of CPC engrafts this doctrine with a purpose that " a fine judgment rendered by the Court of competent jurisdiction on merits, is conclusive as to the rights of the parties and their privies, and as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action".
93. In "Makhija Construction and Engineering Private Ltd. Vs. Indore Development Authority, AIR 2005 SC 2499, the principle of resjudicata has been held to bind co-defendants if the relief given or refused by the earlier decision involved a determination of an issue between co-defendants (or co-respondents as the stage may be).
94. In this backdrop and guided by the procedural norms, which have been enunciated in CPC by the legislature, when the case in hand, is adverted to, it is found that the plaintiff Sh. Gur Charan Singh Chawla, no doubt filed two suits against the defendant no.1 Smt. Ranjit Kaur, seeking the relief of permanent injunction in respect of the suit property bearing no. B-10/342, Sunder Vihar, New Delhi. In the first suit bearing CS No. 3/97, which was instituted in the Court of Ld. ADJ. Initially, the relief that was sought for, was that he was in possession of the suit premises being the owner thereof and that defendant no.1 Smt. Ranjit Kaur be restrained from interfering with his peaceful possession. However, soon after the filing of the suit, the plaintiff was allegedly dispossessed by the defendant no.1 from the suit premises and he filed an amendment application before the Ld. ADJ concerned, firstly for Suit no. 104/10 Page no. 43/64 adding the relief of mandatory injunction and second application for adding the relief of declaration and possession. The second suit bearing CS No. 703/97 (the instant suit), was filed by the plaintiff for permanent injunction against the defendant no.1, who had allegedly then forcibly dispossessed him, for a relief of permanent injunction that she may not sell, alienate or transfer the suit property till the disposal of the suit. Therefore, the cause of action for filing of both the suits, to be very rigid and technical, were slightly at variance, though the second suit i.e the instant suit and the relief which was initially sought, could easily have been sought for in the first suit i.e CS No. 3/97.
95. However, it was never the case of the defendants that the second suit was not maintainable. Rather, the defendant no.1 Smt. Ranjit Kaur, contested both the suits, but instead of agitating any relief for dismissal of the instant suit, i.e CS No. 703/97 before the Hon'ble High Court (where the suit was initially pending) about its non-maintainability, chose to urge before the concerned Court of Ld. ADJ, in CS No. 3/97 on 01.03.1999 that the plaintiff had filed a suit for an identical relief in the Hon'ble High Court, where an exparte stay had also been granted against the defendant no.1 and where the suit property had been valued by the plaintiff at Rs. Ten lacs, whereas in the CS No. 3/97 the same suit property has been valued for the purposes of Court fee and jurisdiction initially at Rs. Five lacs but thereafter, after the relief of declaration and possession, was added by way of amendment, the valuation was decreased to Rs.3.5 lacs by the plaintiff, since as per the plaintiff certain damage/demolition had been done on the suit property.
96. The then Ld. ADJ Sh. S.N. Aggarwal, vide order dated 01.03.1999 passed in CS No. 3/97, mentioning the facts, which had been laid down before him by Mr. Bajaj Ld. Counsel for the defendant no.1, though making certain observations against the plaintiff, Suit no. 104/10 Page no. 44/64 ordered that since the Hon'ble High Court was already seized of the matter between the same parties, in respect of the same property, where the valuation of the property had been assessed at Rs. Ten lacs (initially), the suit bearing CS No. 3/97 was not maintainable in the Court of ADJ and hence, dismissed the same.
97. Though not explicitely, penned down, from the tenor of the order, it can easily be assessed that while making these submissions, the Ld. Counsel for defendant no.1, intimated to the Court that the suit between the parties, as it had been valued at Rs. Ten lacs, should go on before the Hon'ble High Court and this being the pivotal argument on behalf of the defendant, coupled with the admitted and the bare facts before the Court, the suit bearing CS No. 3/97 was dismissed. However, the said dismissal of the suit bearing CS No. 3/97 was definitely not on merits, but it was on the grounds of jurisdiction, as for the same relief of permanent injunction, the suit had been valued at Rs. Ten lacs before the Hon'ble High Court and subsequently for Rs.3.5 lacs before the Ld. ADJ, which prompted the Ld. ADJ to come to the conclusion that the suit being in respect of the property, valued at Rs. Ten lacs, should only proceed before the Superior Court and therefore, dismissed the suit.
98. The Ld. Counsel for the defendants, during the course of his arguments contended that it is to be kept in mind that the order dated 01.03.1999 passed by the Court of Ld. ADJ, was not an order for return of the plaint, but rather the observations which have been made are very pertinent in as much as the order observed that there was a suppression of material facts by the plaintiff and that while dismissing the suit, it was stated that it was not maintainable and therefore, the decision was on merits and therefore, resjudicata would apply and the instant suit, which was the second suit for injunction and possession etc. would not Suit no. 104/10 Page no. 45/64 be maintainable.
99. I have gone through the order dated 01.03.1999 minutely and as already mentioned above, there are certain observations made by the Ld. ADJ against the plaintiff about suppression of facts. However, off-beat observations and remarks made by the Court in an order, cannot be construed to be the crux of this order, since from the penultimate and the last paragraph of the said order it is quite clear that the suit was dismissed because the Ld. ADJ, was of the opinion that the Court lacks the pecuniary jurisdiction, to try the suit bearing CS No. 3/97 and that the suit, at the correct and a higher valuation of the suit property was best adjudicated by the Hon'ble High Court, who was already seized of the matter.
100. In "Ramnik Vallabhdass Madhwani Vs. Tara Ben Praveen Lal Madhwani 2003(1) SCW, 6839", it has been held by the Hon'ble Apex Court that principle of resjudicata is a procedural provision and the same has no application where there is an inherent lack of jurisdiction.
101. In "S.C. Employees Welfare Association Vs. UOI and S.P. Jain Vs. UOI, AIR 1990 SC 334", the Hon'ble Supreme Court has also observed in para no.24 of the judgment that "...... nor also can a decision on the question of jurisdiction be resjudicata in a subsequent suit or proceeding".
102. In "Management of Sonepat Co-op Sugar Mills Ltd. Vs. Ajit Singh, AIR 2005 SC 1050" the Hon'ble Apex Court has held that the principle of resjudicata is a procedural provision. A jurisdictional question, if wrongly decided would not attract the principles of resjudicata. When an order is passed without jurisdiction, the same becomes a Suit no. 104/10 Page no. 46/64 nullity and when an order is a nullity, it cannot be supported by invoking procedural principle.
103. In the case in hand, the order dated 01.03.1999 passed by the Ld. ADJ, dismissing the suit of the plaintiff, as not maintainable, was so dismissed because the Court lacked the pecuniary jurisdiction and therefore, there could not have been any adjudication of the rights and the lis between the parties on merits, so as to constitute 'resjudicata' for adjudication of the instant case.
104. Furthermore, as already observed above, the defendants did not agitate before the Hon'ble High Court for dismissal of the instant suit, which was then listed as CS No. 703/97. From the tenor of the arguments, which were addressed by the Ld. Counsel for defendants, as per the defendant, the second suit i.e the instant suit was barred and that the first suit should have continued. If that be the case, the defendant should have so pressed their contention before the Court accordingly. However, the conduct of defendant no.1 before the Court of Ld. ADJ, was quite different. When the Ld. Counsel for defendant no.1 appeared before the Court of Ld. ADJ, there was no contention put forth that the suit bearing CS No. 3/97 being the first suit, needed to be proceeded with and that the suit before the Hon'ble High Court be dismissed as not maintainable. After putting a contradictory contention before the Ld. ADJ, the defendant no .1 managed to get the suit bearing CS No. 3/97 dismissed before the Ld. ADJ, but in the instant case, which was initially before the Hon'ble High Court, the said contention has not been agitated that this suit was not maintainable, but rather the claim should have been agitated in the first suit. This contention is a deplorable one and such a contrary assertion and claim cannot be allowed to be taken by the defendant. Suit no. 104/10 Page no. 47/64
105. In "Karmawali Vs. Rajinder Singh (1979) 15 DLT (I)" the Hon'ble High Court has categorically held that, it is well settled that a party litigant cannot be permitted to assume contradictory positions in the Court, to play fast and loose, to blow hot and cold, to approbate and reprobate, to the detriment of his opponent". The contention on behalf of the defendant are on the lines of approbate and reprobate, which cannot be allowed. Therefore, in view of my above discussion, neither the instant suit is hit by principle of resjudicata nor by the provisions of Order 2 Rule 2 CPC.
106. Ld. Counsel for the defendant, during the course of arguments on the said issue has also contended that on equity, since the plaintiff had suppressed material facts and proceeded on legal adventurism, he is not entitled to any equitable relief. However, this arguments, though not pertinent for the adjudication of the issue in hand, but nevertheless, it may be mentioned that as already discussed above, some observations made by the Ld. ADJ in the order dated 01.03.1999 about suppression of certain facts cannot sway or affect the fair adjudication of the claims of the plaintiff, as for all purposes, the suit bearing CS No. 3/97 was disposed off on the ground of want of pecuniary jurisdiction and was devoid of any findings on merits. Therefore, whether the conduct of the plaintiff was or was not suppressive of material facts, in the previously instituted suit bearing CS No. 3/97 cannot be commented upon, in the instant suit and therefore, all claims of the plaintiff needs to be adjudicated on merits, on the settled principle of law, guided by the judicial pronouncements of the Superior Courts and on the basis of the evidence brought on record and documents proved, as per law.
Accordingly, issue no. 5 and 7 are decided in favour of the plaintiff and against the defendant.
Suit no. 104/10 Page no. 48/64 ISSUE No. 1 & 6:-
(6) Whether the plaintiff is not the owner of the suit property as alleged by defendants no. 4 & 5? OPD ( 4&5) (1) Whether the plaintiff is entitled to the decree of possession of the suit property, as prayed for? OPP
107. The onus to prove issue no.6 was upon the defendants no. 4 and 5, while the onus to prove issue no. 1 was upon the plaintiff, as he was seeking the possession of the suit property bearing no. 10/342, Sunder Vihar, New Delhi, on the ground that he was the owner thereof. Defendants no. 4 and 5 were arrayed as defendants in the instant suit on an application being moved by them u/o 1 rule 10 CPC on 17.11.2003, which was subsequently allowed. The defendants no. 4 and 5 filed their written statement on 23.06.2005. At the outset it may be observed that the version of the defendants no. 4 and 5 in their written statement was based on negative assertions against the plaintiff, rather than any positive assertions about their own title to the suit property. It was their claim that defendant no.1 Smt. Ranjit Kaur, became the owner of the suit property, which was purchased by Sh. Hira Singh jointly with defendant no.1 Smt. Ranjit Kaur, from Sh. K.L. Bedi, after the consideration of Rs. 49,900/- was paid by them to Sh. K.L. Bedi and after the death of Sh. Hira Singh, she became the absolute owner of the suit property. On 09.05.1997 defendant no.1 sold the suit property to defendants no. 2 and 3 for a total consideration of Rs. 3,10,000/-, after executing all the necessary documents, in their favour. Defendants no.2 and 3 further sold the suit property to one Sh. Gur Charan Singh S/o Sh. Saran Singh and Smt. Savneet Kaur W/o Sh. Amrit Pal Singh on 18.01.2001 for a total consideration of Rs. 6.5 lacs, who in turn sold the suit property to defendants no. 4 and 5 for a total consideration of Rs. 6.75 lacs, vide agreement to sell, GPA, receipt, possession letter etc. all dated 04.07.2002 and the vacant Suit no. 104/10 Page no. 49/64 peaceful possession of the suit property was als handed over to them. Thus defendant no.4 claimed her ownership to the ground floor of the suit property and defendant no.5 claimed his ownership over the terrace rights of the suit property, as per their own version claimed to be the owner of the suit property, through defendant no.1 Smt. Ranjit Kaur. It was their assertion that Smt. Ranjit Kaur alongwith her late husband Sh. Hira Singh had purchased the lease hold rights of the suit property from Sh. K.L. Bedi and that these lease hold rights in the suit property, were subsequently purchased by defendant no.4 and 5, who are wife and husband incidentally. It goes without saying that a person can pass on only those rights and interest, to his successors, which he himself holds and that the successor in interest cannot have a better title than his predecessor in interest.
108. The stand of the defendants was that the plaintiff was not the owner of the suit property, as there was never an agreement to sell executed by the original lessee Sh. K.L. Bedi in favour of the plaintiff nor did the plaintiff ever pay any consideration for the purchase of the same to Sh. K.L. Bedi. It was contended that the consideration of Rs. 49,900/- that was paid and acknowledged vide receipt by Sh. K.L. Bedi, was admittedly paid out of the account of Late Sh Hira Singh, father of the plaintiff and husband of defendant no .1 and moreover, the said receipt dated 27.04.1984 does not relate to the suit property as there is no mentioning of the suit property on the same.
109. It was averred that Late Sh. Hira Singh alongwith co-purchaser Smt. Ranjit Kaur had entered into the agreement to sell with Sh. K.L. Bedi in respect of the suit property and had made the payment of the consideration amount vide pay order dated 21.04.1984 drawn on Syndicate Bank and that the documents were executed by Sh. K.L. Bedi in favour of Suit no. 104/10 Page no. 50/64 late Hira Singh and Smt. Ranjit Kaur at Noida.
110. The plaintiff on the other hand, has claimed that he is the owner of the suit property having purchased the same from Sh. K.L. Bedi for the consideration amount of Rs. 49,900/-, which was paid from his own funds, which he had deposited in the account of his late father only as a goodwill gesture and that the receipt was executed in his favour and subsequently the possession of the suit property was handed over to him by Sh. K.L. Bedi, on which he constructed the ground floor from his own earnings. After getting the site plan sanctioned from the MCD/DDA, he got the electricity and water connection as well as ration card installed and prepared in his name and subsequently on his application, which was scrutinized by DDA, the completion certificate of the property and subsequently the conversion of the property from lease hold rights to free hold rights was also done by the DDA vide the conveyance deed Exh. PW1/1, after the original perpetual sub-lease deed Exh. PW1/84 was executed and converted to free hold.
111. If the documents, put forth and relied upon by the plaintiff are perused, it is indeed found that the original perpetual sub-lease deed Exh. PW1/84 dated 09.05.1978 is in the name of Sh. K.L. Bedi. It is not disputed that Sh. K.L. Bedi had sold the suit property, which at the time, was a plot of land, for a consideration of Rs. 49,900/- and admittedly this amount was paid to Sh. K.L. Bedi by way of pay order, the money for which came from the account of Late Sh. Hira Singh, the father of the plaintiff and Sh. K.L. Bedi issued a registered receipt, which has been proved on record as Exh. PW1/125. If the said receipt is perused, it finds a mention that the amount was paid by the plaintiff as well as his two brothers jointly, but if the endorsement on the back of the receipt, by the Sub-Registrar, which is Exh. PW1/126, is Suit no. 104/10 Page no. 51/64 perused the payee is specifically to be Sardar Gur Charan Singh and not anyone else. The money may have come from the account of the father of the plaintiff, but for all purposes the receipt which has been issued by Sh. K.L. Bedi does not ascribe any role to late Sh. Hira Singh, the father of the plaintiff, as alleged by defendants no. 4 and 5 during the course of arguments.
112. Defendant no.1 on the contrary was unable to prove on record any of the alleged documents i.e agreement to sell etc , which was executed by Sh. K.L. Bedi and which were registered at the Noida authority, in favour of late Sh Hira Singh and Smt. Ranjit Kaur jointly. Even otherwise, these assertions do not inspire any confidence, since the suit property situated at Delhi, its sale/purchase by no law whatsoever, can be got registered in Noida, U.P.
113. The claim of the defendants that since the amount of Rs. 49,900/- had flown out of the bank account of late Sh. Hira Singh and therefore, it was he who had become the owner, is not at all tenable, by any stretch of imagination, since for a person to claim the ownership and title into an immovable property, the documents should stand in his favour and in the instant case, no document in favour of late Sh. Hira Singh in respect of the suit property, could be brought on record by any of the defendants. The law of land deos not recognize any Benami Transaction, but rather recognizes the title and rights in an immovable property as per the documents brought on record. Reliance is placed upon "Ramesh Chand Vs. Tek Chand 115 (2004) DLT 193".
114. The plaintiff on the other hand, has claimed the ownership of the suit property on the basis of the conveyance deed Exh. PW1/1, executed by the DDA in respect of Suit no. 104/10 Page no. 52/64 the suit property in his favour on 17.07.1996, vide which the lease hold rights in respect of the suit property in favour of Sh. K.L. Bedi, came to an end and the property was converted into a free hold property in the name of the plaintiff. The perpetual sub-lease deed dated 09.05.1978 Exh. PW1/84, on issuance of the conveyance deed Exh. PW1/1, was cancelled and an endorsement "cancelled and converted to free hold" was put on the said document. Ironically the said conveyance deed Exh. PW1/1 and the cancelled perpetual sub-lease deed Exh. PW1/84 were put to the defendants no.1 as well as defendants no. 4 and 5, for admission/denial of the documents, which were admitted by them and therefore, the documents in themselves attained authenticity as well as finality about the contents of the same.
115. It was contended by the Ld. Counsel for defendant that mere admission of a document was not a proof of the document. In support of his contention, he cited " Sait Tarajee Khimchand & Ors. Vs. Yelamarti Satyam @ Satteyya and Ors. (1972) 4 SCC 562, wherein their Lordship had held that "mere marking of an exhibit does not dispense with the proof of document".
116. This contention of the Ld. Counsel is without doubt correct and this has also been propounded by Hon'ble Justice R.C. Lohati in "LIC Vs. Narmada Aggarwal & Ors. AIR 1993 Orissa 103" and "LIC Vs. Rampal Singh II (2010) SLT 554" that admission of a document may amount to admission of contents but not its truth.
In "Jeevan Diesels & Electricals Ltd. Vs. Jasbir Singh Chadha, (2010) 6 SCC 601" the Hon'ble Apex Court has held that "admission must be clear and unambiguous. A court can act u/o 12 rule 6 CPC".
Suit no. 104/10 Page no. 53/64
117. Before proceeding further, it may be mentioned that the said judgment of the Hon'ble Apex Court is not applicable to the case in hand, as the instant matter is not being adjudicated on an application u/o 12 rule 6 CPC, where the unambiguousness or clarity of the admission needs to be gone into. However, it is the cardinal principle of law, that the fact of a document, which is admitted by the other party, need not to be proved by the party, placing reliance upon the said fact and the document. During the course of ad/denial of the documents in the Court, defendant no .1 and defendants no. 4 and 5 have categorically admitted the documents i.e the conveyance deed and the perpetual sub-lease deed, which was cancelled on the execution of the conveyance deed. As per the authorities relied upon by the counsel for defendants, admission of these documents is an admission of its contents. However, when a document like conveyance deed stares at you in the face and the said document is admitted by the defendants, thereby admitting its contents and its implication, the matrix becomes crystal clear, that the free hold rights in respect of the suit property stood transferred in the name of the plaintiff Sh. Gur Charan Singh Chawla.
118. The Ld. Counsel for defendants has contended that the plaintiff procured the conveyance deed by fraud, as he did not file the requisite documents, before the DDA, a factum which came into the knowledge of the defendants, when they filed a RTI application before the DDA and it transpired that though the conveyance deed could have been executed only on submission of certain original documents like GPA etc, the plaintiff had furnished only photocopies of certain documents before the DDA. The second limb of the contention of Ld. Counsel for defendants, at this juncture, was that the plaintiff had played a fraud upon the DDA and had also tried to play a fraud upon the Court, as he had suppressed material Suit no. 104/10 Page no. 54/64 documents like agreement to sell etc in respect of the suit property, which he failed to bring on record.
119. He cited several judgments like "Dalip Singh Vs. State of Uttar Pradesh & Ors. (2010) 2 SCC 114" , "A.V. Papayya Sastry & Ors. Vs. Government of A.P. & Ors. AIR 2007 SC 1546" , and "DLF Ind. Ltd. Vs. Standard Ch. Bank & Ors. 1998 Rajdhani Law Reporter, 582" and contended that it had been held by the Hon'ble Supreme Court that any relief, which was procured by a litigant by playing a fraud was a nullity and it vitiated the entire proceedings.
120. I am in conformity with the contentions raised by the counsel for defendant, but before any reliance can be placed upon these judgments in the given case, it has to be established by the defendants that any fraud was played either upon the DDA or upon this Court by the plaintiff. Had any fraud been played by the plaintiff, he would never have cited the DDA as a witness, which was filed by the plaintiff on record. However, when the conveyance deed Exh. PW1/1, vide which the free hold rights in the suit property stood transferred in the name of the plaintiff and the cancelled perpetual sub-lease deed in favour of Sh. K.L. Bedi, which stood cancelled and converted into free hold, was specifically admitted by the defendants, there was neither any occasion nor any purpose left for the plaintiff to produce any official from the DDA in the witness box to prove the said documents. The defendants also cited DDA, as a witness in the list of witnesses, filed by them, but despite having availed several opportunities and saturated the Court's latitude, shown towards the defendant, failed to summon the DDA in the witness box to prove any of their contentions, which have been raised by them during the course of arguments, but which actually remained Suit no. 104/10 Page no. 55/64 unsubstantiated, despite ample opportunities having been given to the defendants.
121. An application preferred by the defendants no. 4 and 5, to reagitate the issue, to reopen the DE and call the DDA in the witness box, was dismissed by this Court and the challenge to the order of this Court dated 20.07.2009 before the Hon'ble High Court also ended in futility since defendant withdrew their petition in the High Court unconditionally.. Therefore, the defendants failed to establish lack of any authenticity or any element of fruad, which brought about the execution of the conveyance deed Exh. PW1/1 in favour of the plaintiff or any fraud being played by the plaintiff in the Court, which would vitiate the proceedings before this Court.
122. Coupled with the conveyance deed Exh. PW1/1, the cancelled perpetual sub-lease deed Exh. PW1/84, the electricity bills Exh. PW1/18 to Exh. PW1/38, the water bills Exh. PW1/40 and Exh. PW1/41, the sanctioned site plan Exh. Pw1/9, the ration card Exh. PW1/39 and several other documents, in favour of the plaintiff, which shows that he is either the owner and the person in possession of the suit property, are the documents, which could not be controverted by the defendants at all.
123. The defendant no.1, as already stated above, was unable to produce on record any document of sale/purchase of the suit property by either late Sh. Hira Singh or herself from Sh. K.L. Bedi in the various litigations that were instituted at the behest of Smt. Ranjit Kaur in different Courts, including the suit bearing CS No. 139/97, which was instituted by defendant no.1 through her attorney defendant no.2 Sh. Jagjivan Singh, seeking declaration of the documents of plaintiff as null and void, never disclosed the address of Smt. Suit no. 104/10 Page no. 56/64 Ranjit Kaur as that of the suit property, though litigation against the plaintiff, always had the address of the present plaintiff as that of the suit property. Moreover, in the civil suit bearing no. 139/97, preferred by defendant no.1 Smt. Ranjit Kaur, against the plaintiff for declaring the plaintiffs documents i.e the conveyance deed, null and void, was dismissed vide orders of the Ld. Civil Judge on 05.04.2000 and the certified copy of which has been brought on record as Exh. PW1/110 and this order was not appealed for and therefore, attained finality in as much as the right and title of the plaintiff in respect of the suit property was concerned.
124. Admittedly, the probate case bearing CS No. 145/94, which had also been filed by defendant no.1, and was also pending in the Court of the then Ld. ADJ, on the basis of the Will of late Sh. Hira Singh, was also dismissed. This suit did not initially include the suit property but subsequently after amendment, the suit property was also included but the probate was declined. Therefore, for all purposes, defendant no.1 was unable to prove on record that she was the owner of the suit property. She also failed to establish that the plaintiff was not the owner of the suit property.
125. Defendants no. 4 and 5 claimed to have purchased the suit property from defendant no.1, through defendants no. 2 and 3, and subsequently Gur Charan Singh S/o Sh. Saran Singh and Smt. Savneet Kaur for a total consideration of Rs. 6.75 lacs. Defendant no . 5, as already stated above, did not enter the witness box to prove her case and therefoer, the assertions of the defendant no.5 in her WS about she being the owner of the suit property, remained unsubstantiated one and her claim miserably failed.
126. As per the sale documents of defendant no.4, he claimed to have purchased Suit no. 104/10 Page no. 57/64 lease hold rights, in the suit property, in respect of the terrace of the ground floor of the suit property. Admittedly, defendant no.4 and 5 jointly filed a suit bearing CS No. 440/03 against the present plaintiff for permanent injunction praying, that they be not dispossessed by the plaintiff from the suit property, the certified copy of which has been brought on record as Exh. PW1/112. However, in the said suit, which was filed prior to the filing of the WS, in the instant case on 23.06.2005, alongwith the plaint, the defendants no. 4 and 5, who were plaintiff therein, filed a copy of perpetual sub-lease deed dated 09.05.1978 Exh. PW1/84, containing the endorsement on all the pages to the effect "cancelled and converted into free hold". Moreover, in the first line of the suit itself, the defendants admitted that the suit property was a free hold property. When the defendants no. 4 and 5, moved an amendment application in the said suit for declaration that the documents(conveyance deed) of the plaintiff were null and void, the application as well as, this suit was dismissed by the Court of Ms. Vrinda Kumari, vide order dated 13.05.2005, certified copy of which is Exh. PW1/115, on the ground of resjudicata also, since the issue had already been agitated earlier and declined, at the time when the suit bearing CS No. 139/97 was dismissed. Therefore, defendants no. 4 and 5 knew very well at the time, when they allegedly purchased the suit property, that the property ceased to be the lease hold property and that it was converted into free hold. They have never agitated that they were the bonafide purchasers, as quite apparently they were not so, having purchased the property, if so, knowing fully well, that the free hold rights of the suit property, stood in the name of the plaintiff.
127. It is a well settled principle of law that a person can transfer only that title, which he himself has, and cannot transfer a better title than he himself hold. The defendants proceeded to contest the case knowing that they did not have the documents to show any title Suit no. 104/10 Page no. 58/64 vesting in favour of defendant no.1 and therefore, the chain, which would show the transfer of title from defendant no.1 to defendants no. 4 and 5, remained incomplete and this being so, the claim of ownership of defendants no. 4 and 5 stood vitiated. Reliance is placed upon "Shashikanta Vs. Sadhna Midha 94(2001) DLT 1".
128. Ld. Counsel for defendants no. 4 and 5 had laid thrust upon the doctrine of Order 2 rule 2 CPC, and resjudicata during the course of their arguments. However, as the record reveals this principle is applies to the claim of defendants no. 4 and 5 as after the dismissal of the suit, bearing CS No. 139/97 and CS No. 440/03, re-agitated the same issue that plaintiff is not the owner of the suit property, while defendant no.1 Smt. Ranjit kaur, being the original owner, who passed on her interest in the suit property, subsequently to defendants no. 4 and 5 was a fallacious argument, taken up only to delay the case of the plaintiff and waste the precious time of the Court.
129. At this juncture, reliance is placed upon "V (2005) SLT 385 S.C.", wherein, the Hon'ble Apex Court has categorically held that when the predecessor interest has already lost the claim in a subsequent suit, for the same relief by a successor in interest, the earlier suit would act as resjudicata.
130. In view of my discussion above, I am of the opinion that the defendants have miserably failed to prove that defendants no. 4 and 5 are the rightful owner of the suit property. The plaintiff on the other hand, has successfully established that he is the owner of the suit property bearing no. 10/342, Sunder Vihar, New Delhi and is the rightful owner of the same.
Suit no. 104/10 Page no. 59/64
Accordingly, issue no.6 is decided in favour of the defendants and against the plaintiff while issue no.1 is decided in favour of the plaintiff and against the defendants. ISSUE No. 3:-
"Whether the plaintiff is also entitled to the decree of permanent injunction, as prayed for?" OPP
131. The onus to prove this issue was upon the plaintiff. The law of permanent injunction is very clear that to grant an injunction, in respect of any property, the plaintiff seeking the injunction, has to establish that he has a right in respect of the property and that the balance of convenience is in his favour and that irreparable loss would be caused to him. In the finding given in the preceding issues, it has already been held that it was the plaintiff, who was the owner of the suit property bearing no. B-10/342, Sunder Vihar, Delhi, vide the conveyance deed Exh. PW1/1 and that the defendant no.1 took wrongful possession of the suit property from the plaintiff and thereafter, transferred the possession of the suit property to defendant no. 2, 3 and eventually possession of the suit property came to be with defendants no.4 and 5. It has already been held above that defendant no.1 had no right, title or interest in the suit property, which belonged to the plaintiff and therefore, she has wrongfully taken the possession from the plaintiff and thereafter parted with the possession, the possession finally resting with defendants no. 4 and 5. The plaintiff has established that his rights and title in the suit property are absolute, none of the defendants having any title in the same. Accordingly, the plaintiff is entitled to a decree of permanent injunction against the defendants restraining from selling, alienating, transferring or parting with the possession of the suit property to any other person or damaging or demolishing it, in any manner, whatsoever, since it is the plaintiff, who is entitled to be in exclusive possession of the same.
Suit no. 104/10 Page no. 60/64
Accordingly, issue no.3 is decided in favour of the plaintiff and against the defendants.
ISSUE No. 2:-
"Whether the plaintiff is entitled to the decree of mesne profits/damages and unauthorized use and occupation charges of the suit property?"OPP
132. The onus to prove this issue was upon the plaintiff. Other than making a bald prayer in the suit and in his affidavit, for being granted mesne profits/damages for the unlawful use and occupation of the suit property @ Rs.25,000/- p.m w.e.f 05.12.2003 till the recovery of possession, the plaintiff was totally silent on this issue. In his affidavit, the plaintiff has stated that the suit property would easily have fetched a rent of Rs. 25,000/- p.m, but for the damages to the property done by defendants no.4 and 5, it was not elucidated as to what was the existing structure at the time when the plaintiff was dispossessed from the suit property or what was the existing structure till date or whether any damage had actually been done. No witness was examined nor any document in the form of any rent deed, rent receipt or rent agreement in respect to other properties in the vicinity for the period, for which mesne profits are being prayed for, was ever brought on record, which would be a pointer about the rate of rent in the vicinity, where the suit property was situated. Therefore, the plaintiff has not discharged the onus which was placed upon him.
133. However, it cannot be ignored that the plaintiff had became the absolute owner of the suit property on 17.07.1996 when the conveyance deed Exh. PW1/1 was executed in his favour, but the plaintiff was dispossessed from the suit property in 1997, and Suit no. 104/10 Page no. 61/64 thus deprived of his valuable right to enjoy his property either himself or enjoy the benefits from the said property, which could have accrued in his favour by renting it out at the market rate.
134. In D.C. Oswal Vs. V.K. Subbiah, AIR 1992 SC 184, the Hon'ble Apex Court, while allowing the appeal before it, has issued a directive that "judicial notice can be taken of the fact that rental has escalated everywhere and appropriate rent can be estimated."
135. Guided by the observations, made by the Hon'ble Apex court in the above cited judgment, interest of justice demands that this Court exercise its discretion to take judicial notice of the suit property and benefits, which could have accrued from the same in favour of the plaintiff, had it not been forcibly taken over by the defendants.
136. The suit property is a built up property (on the ground floor) measuring 256 sq. yds, situated in Sunder Vihar, New Delhi, being located on the outer Ring Road, in 1990s, the outer ring road and the colonies there upon were deemed to be on the outskirts of Delhi and did not fall into the centralized or elite colonies or areas, of Delhi. It is only after 2000 onwards that the rate of rent has been on the rise steadily but even as on date, the rate of rent would not be anywhere near Rs. 25,000/- p.m. However, keeping in view the entire scenario and the circumstances of the case in mind, I am of the opinion that a 256 sq. yds property with a built up ground floor, could easily have fetched a rent of Rs. 4000/- p.m. The plaintiff has claimed damages w.e.f. 05.12.2003. Accordingly, I am of the opinion that ends of justice would be met by awarding mesne profits/damages to the plaintiff w.e.f. 05.12.2003, @ Rs. 4000/- p.m with an increase of 10% every three years, till recovery of possession. The Suit no. 104/10 Page no. 62/64 liability of defendant no.1 to 5 shall be joint and several, to pay the said mesne profits/occupation charges to the plaintiff.
Issue no.2 is accordingly, decided in favour of the plaintiff and against the defendants.
RELIEF :-
137. In view of my findings, given on issues no. 1 to 7 above, a decree of possession of the suit property bearing no. B-10/342, Sunder Vihar, New Delhi is passed in favour of the plaintiff and against the defendants.
138. A decree of permanent injunction is also passed in favour of the plaintiff and against the defendants, thereby restraining them from selling, alienating, transferring or parting with possession or creating any third party interest in the suit property bearing no. B- 10/342, Sunder Vihar, New Delhi.
139. A decree of mense profits/damages is also passed in favour of the plaintiff for recovery of mesne profits/damages from the defendants @ Rs. 4000/- p.m. w.e.f 05.12.2003 with an increase of 10% every three years, till recovery of possession against the defendants. The plaintiff shall also be entitled to an interest @ 6% per annum on the amount along with the costs of the suit. The liability of defendant no.1 and defendants no. 2 to 5 shall be joint and several, to pay the said.
140. The Court fee on the damages, so granted, shall be paid by the plaintiff within a week from the date of order, before the decree-sheet is prepared. Suit no. 104/10 Page no. 63/64
141. The defendants are granted a period of two months, from the date of order, to vacate the suit property and hand over the vacant and peaceful possession of the same to the plaintiff.
142. Plaintiff shall also be entitled to the costs of the suit. Decree-sheet be prepared accordingly. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT on 28th day of November, 2011 (SEEMA MAINI) ADJ-3 (NORTH):DELHI Suit no. 104/10 Page no. 64/64 IN THE COURT OF Ms. SEEMA MAINI : ADJ : (North) DELHI TIS HAZARI COURTS, DELHI Suit No. 104/10 (Old No. 703/97) Unique Case ID No. 02404C0011252006 In the matter of:
Sh. Gurcharan Singh Chawla S/o Late Sh. Hira Sing, R/o H-22/725, Joshi Road, Karol Bagh, Delhi. Plaintiff VS.
1. Ranjeet Kaur, W/o Late Sh. Hira Singh, R/o Flat No. 4920, STE, Suzana Montreal (Canada)
2. Sh. Harbans Singh, W/o Sh. Sumer Singh R/o RZ-4, Nangloi Sayed, New Delhi.
3. Sh. Manoj Kumar S/o Sh. Zile Singh R/o Village & PO Nangloi, Sayed, New Delhi.
4. Sh. Arun Kumar Dawar, S/o Late Sh. M.L. Dawar R/o E-105, Mansarowar Garden, New Delhi.
5. Smt. Usha Dawar, W/o Sh. Arun Kumar Dawar R/o E-105, Mansarowar Garden, New Delhi. Defendants ORDER :-
1. Vide this order, I shall dispose off an application u/s 340 CrPC moved on behalf of the defendant no. 4 and 5, though signed by defendant no. 4 and supported with an affidavit of defendant no. 4 only, praying for taking appropriate action against the plaintiff and his brother S. Harjeet Singh Chawla.
2. In the instant application, it is submitted that on 14.11.2003, the plaintiff and Suit no. 104/10 Page no. 65/64 his brother S. Harjeet Singh Chawla, introducing himself as attorney of defendant no. 1 Smt. Ranjit Kaur, moved an application u/o 23 Rule 3 CPC and fraudulently conveyed to the Court that an amicable settlement of the dispute had been arrived at between the plaintiff and the defendant no. 1 and prayed for passing of the compromise decree in terms of the settlement as narrated in the said application. It was stated that no settlement could have ever been arrived at between the parties, since Smt. Ranjit Kaur had already sold the property to defendant no. 2 and 3, due to which they had been made parties and therefore the question of any settlement being arrived at between the parties, does not arise. In para no. 1 (a) of the said application, it was mentioned that 'the defendant undertakes to vacate and handover vacant and peaceful possession of the suit premises to the plaintiff on or before November, 2003', which was a false and malicious contention, since the plaintiff had himself admitted the possession of the defendant no. 4 and 5.
3. It was stated that, immediately, when the defendant no. 4 and 5 came to know about the pendency of this suit, they moved an application u/o 1 Rule 10 CPC on 20.11.2003, for being impleaded as necessary parties. However, when the defendant no. 4 and 5 appeared before the court, S. Harjeet Singh Chawla surprisingly disappeared from the court and did not press the application u/o 23 Rule 3 CPC because the said application was filed with the sole intention to procure an unlawful decree of compromise from the Court. It was prayed that the plaintiff and his brother S. Harjeet Singh Chawla had committed offence of purgery and that appropriate action be taken against them for the said offence.
4. No formal reply to the said application was filed by the plaintiff.
5. I have heard Sh. Vijay Kumar Gupta, counsel for the defendant no. 4 and 5 and Sh. Rajesh Harnal, counsel for plaintiff, perused the record and have considered the rival contentions of the parties.
6. Perusal of the record reveals that an application u/o 23 rule 3 CPC was moved before the court by the plaintiff as well as defendant no. 1 through her attorney S. Harjeet Singh Chawla and on 24.11.2003 the plaintiff stated that he had compromised the matter with Suit no. 104/10 Page no. 66/64 the defendant no. 1, while the defendant no. 2 and 3 (who were the only other defendants in the suit at that time) were already ex-parte. However, no statements were recorded in the court and further the perusal of the proceeding sheets reveals that the compromise remained in abeyance for all practical purposes. Further, on 19.07.2005, finally when the defendant no. 4 and 5 had also been impleaded as parties, the plaintiff submitted in the court that the defendant no. 1 had assured him that she would handover the possession of the suit property to him but since the possession had not been handed over to him, there was no question of any compromise having been effected. He also categorically stated that he wanted to prosecute the matter further and thereafter the matter was proceeded with.
7. From the perusal of the proceeding sheets, it is apparent that the compromise was never affected and crux of the compromise being handing over of the vacant and peaceful possession of the suit property to the plaintiff, since did not see the light of the day, the compromise agreement, if any, fizzled out.
8. The contention of the defendant no. 4 and 5 is that the defendant no. 1 could not have entered into an agreement to handover the possession of the suit property to the plaintiff, since admittedly the plaintiff also knew that it was defendant no. 4 and 5 who were in possession of the suit property. However, it may be mentioned, at this stage that when the question of handing over of the possession of the suit property to the plaintiff, was being contemplated in the compromise agreement which was entered into between the plaintiff and the defendant no. 1 allegedly, it was presumably not for possession simplicitor but it was for handing over of the possession of the suit property to its owner, which had been contemplated in the agreement.
9. The compromise did not see the light of the day but at the same time the presumption which is implicit as well as explicit, in any such agreement having been entered into between the plaintiff and defendant no. 1, was on an acknowledgment that defendant no. 1 did not have any right, title or interest in the suit property, for it to be passed on to the remaining defendants. Moreover, defendant no. 4 and 5 have urged that they moved an application for being impleaded as necessary parties in February, 2003, when they came to Suit no. 104/10 Page no. 67/64 know about the pendency of this case, but from their own admission it is quite clear that they knew that the plaintiff was claiming his ownership on the suit property on the basis of the Conveyance Deed and thereafter they had instituted the suit bearing no. 440/2003 in the court of Ld. Civil Judge, seeking permanent injunction, in which they had filed a copy of the cancelled perpetual lease deed, which clearly shows that the free hold rights had been transferred in the name of plaintiff. Therefore, the contention of the applicants / defendant no. 4 and 5 that they did not know about the pendency of this suit, is false.
10. Vide my separate judgment, which has been announced today, the suit of the plaintiff has been decreed in favour of the plaintiff, after all the contentions and arguments extended on behalf of defendant no. 4 and 5 about any fraud being played by them, upon the court, have been dealt with and are found to be incorrect. In these circumstances, I do not find any merits in the instant application and the same is accordingly dismissed.
Announced in open Court today (SEEMA MAINI)
i.e on 28.11.2011 ADJ-03 (North)Delhi
Suit no. 104/10 Page no. 68/64
IN THE COURT OF Ms. SEEMA MAINI : ADJ : (North) DELHI
TIS HAZARI COURTS, DELHI
Suit No. 104/10 (Old No. 703/97)
Unique Case ID No. 02404C0011252006
In the matter of:
Sh. Gurcharan Singh Chawla
S/o Late Sh. Hira Sing,
R/o H-22/725, Joshi Road,
Karol Bagh, Delhi. Plaintiff
VS.
1. Ranjeet Kaur, W/o Late Sh. Hira Singh,
R/o Flat No. 4920, STE, Suzana
Montreal (Canada)
2. Sh. Harbans Singh, W/o Sh. Sumer Singh
R/o RZ-4, Nangloi Sayed,
New Delhi.
3. Sh. Manoj Kumar S/o Sh. Zile Singh
R/o Village & PO Nangloi,
Sayed, New Delhi.
4. Sh. Arun Kumar Dawar, S/o Late Sh. M.L. Dawar
R/o E-105, Mansarowar Garden,
New Delhi.
5. Smt. Usha Dawar, W/o Sh. Arun Kumar Dawar
R/o E-105, Mansarowar Garden,
New Delhi. Defendants
ORDER :-
1. Vide this order, I shall dispose off an application u/s 151 CPC dated 19.08.2009 moved on behalf of the defendant no. 4 and 5, praying for bringing on record material subsequent events.
2. In the instant application, it has been urged that the plaintiff is claiming ownership of the suit property on the basis of a Conveyance Deed dated 17.07.1996 Suit no. 104/10 Page no. 69/64 executed by and on behalf of DDA. It is further stated that admittedly Sh. K.L. Bedi, was the original allottee and the perpetual lessee of the suit property but no document has been placed on record by the plaintiff to show transfer of title, ownership and right by Sh. K.L. Bedi in favour of plaintiff. The plaintiff has placed reliance on an agreement to Sell executed by Sh.
K.L. Bedi and the same is alleged to have been deposited with the DDA for converting the leasehold property to freehold property but Sh. K.L. Bedi has denied having executed any Agreement to Sell in favour of plaintiff, as per his statement recorded in the Civil Suit bearing no. 139/1997.
3. It was further stated that unless the documents of transfer of rights by Sh. K.L. Bedi in favour of plaintiff are brought on record, the conveyance deed per-se would not suffice. It was stated that in the list of witnesses filed by plaintiff, the DDA was shown as a witness but only to suppress the true facts, he has not examined any official from the DDA and the suppressing of material facts tantamounts to playing of fraud upon the court. The plaintiff has also concealed that he has filed a reply to the Show Cause Notice, which was received by him from DDA and that all the said correspondences are relevant facts, which need to be brought on record to unveil the fraud which is being played by the plaintiff. The plaintiff has not filed the original documents of sale of the plot in question in his favour by Sh. K.L. Bedi. It was, therefore, prayed that the subsequent events be taken on record and the suit of the plaintiff be dismissed.
4. No formal reply to the said application was filed by the plaintiff.
5. I have heard Sh. Vijay Kumar Gupta, counsel for the defendant no. 4 and 5 and Sh. Rajesh Harnal, counsel for plaintiff, perused the record and have considered the rival contentions of the parties.
6. The defendants / applicants need to be reminded that through their pleadings, the parties put forth their case and to substantiate their case, a list of witnesses is prepared and filed by them and subsequently it is for the parties to decide individually, as to which witnesses are required to be examined and what documents are to be brought on record for Suit no. 104/10 Page no. 70/64 proving their case. If the plaintiff has filed a list of witnesses, with DDA being named as a witness, but subsequently chose to drop the said witness, he is at liberty to do so. The plaintiff has placed reliance on a Conveyance Deed dated 17.07.1996 executed by DDA, vide which the suit property was converted into freehold property in his favour, after cancellation of the leasehold rights in the suit property, which were held by Sh. K.L. Bedi, the original allottee. The document has been executed by the DDA, presumably after all the formalities which were required to be fulfilled, were so done by the plaintiff. Presumably, all the documents which were required to be furnished by the plaintiff, have been furnished before the DDA, at the time of execution of the said Conveyance Deed in favour of plaintiff. This document has been categorically admitted by the defendant no. 1 as well as defendant no. 4 and 5 during the course of Admission / Denial of documents as well as in their pleadings.
7. All attempts of defendant no. 1 and defendant no. 4 and 5, to get the said Conveyance Deed declared as null and void, by instituting Civil Suits bearing no. 139/1996 and 440/2003, proved futile, as both the said civil suits were dismissed by the concerned civil courts and the dismissal of the said suits is not disputed by the defendants. It is strange that Ld. Counsel for the defendants, while moving the instant application has placed reliance upon the statement of one Sh. K.L. Bedi, whoever he was, which was recorded in the civil suit bearing no. 139/1997, at the time when the present plaintiff had been proceeded ex-parte. However, when the plaintiff by moving an appropriate application, got the said ex-parte order set-aside, the suit was not pursued by defendant no. 1 and the suit was ultimately dismissed. Once the suit has been dismissed, the statement of Sh. K.L. Bedi, which was allegedly recorded at the time when the plaintiff had been proceeded ex-parte, would not have any bearing in the case in hand and the conduct of the plaintiff.
8. On the contrary, the defendant no. 4 and 5 adopted all the dilatory tactics which they could, before they concluded their DE. Defendant no. 4 and 5 have also cited DDA as a witness but failed to summon any witness from the DDA, despite having been granted several opportunities to do so and eventually vide order dated 20.07.2009, the DE was closed. The said order dated 20.07.2009 was challenged by the defendant no. 4 and 5 before the Hon'ble High Court but the said petition was withdrawn by the counsel for defendant no. 4 and 5 Suit no. 104/10 Page no. 71/64 unconditionally.
9. On 10.09.2009, Ld. Counsel for the plaintiff submitted at Bar, that it was when the petition was on the verge of dismissal, that defendant no. 4 and 5 had withdrawn the same and a copy of the said petition, challenging the order of this court dated 20.07.2009 was also filed on record by the Ld. Counsel for the plaintiff and its perusal clearly reveals that all the submissions which have been made by defendant no. 4 and 5 in the instant application before this court, have already been agitated by them before the Hon'ble High Court but presumably when they anticipated that no favourable order was forthcoming, that the said petition was withdrawn.
10. The instant application, being filed after withdrawal of the said petition before the Hon'ble High Court, only reeks of a malafide intention, only to delay the matter further and to re-agitate the issues which have already been decided, once for all by this court and further implicitly endorsed by the Hon'ble High Court.
11. At the cost of repetition, at may be added that when all the documents including the conveyance deed are already on record and the same has been admitted by the defendants, the court is not required to go beyond the documents or behind the documents, to check its authenticity. A document, its contents and the import of the said document is not disputed and therefore no requirement is felt for looking beyond the said document. Moreover, as already mentioned above, the defendant no. 1 and the present contesting defendants no. 4 and 5, have already agitated the issue in the full fledge suits for getting the said Conveyance Deed declared null and void, vide CS No. 139/1997 and CS No. 440/2003, which were dismissed by the court of Sh. Sanjay Sharma, Ld. Civil Judge vide order dated 05.04.2000 and by the court of Ms. Vrinda Kumari, Ld. Civil Judge vide order dated 13.05.2005 respectively.
12. Therefore, I find no merits in the application, which is, in my opinion, rather borders on the abuse of the process of law. The application is accordingly dismissed with cost of Rs. 5000/- to be paid by the defendant no. 4 and 5 jointly to the plaintiff. In case the Suit no. 104/10 Page no. 72/64 cost is not paid, the cost would remain a recoverable cost by instituting appropriate proceedings. Application stands disposed off.
Announced in open Court today (SEEMA MAINI)
i.e on 28.11.2011 ADJ-03 (North)Delhi
Suit no. 104/10 Page no. 73/64
IN THE COURT OF Ms. SEEMA MAINI : ADJ : (North) DELHI
TIS HAZARI COURTS, DELHI
Suit No. 104/10 (Old No. 703/97)
Unique Case ID No. 02404C0011252006
In the matter of:
Sh. Gurcharan Singh Chawla
S/o Late Sh. Hira Sing,
R/o H-22/725, Joshi Road,
Karol Bagh, Delhi. Plaintiff
VS.
1. Ranjeet Kaur, W/o Late Sh. Hira Singh,
R/o Flat No. 4920, STE, Suzana
Montreal (Canada)
2. Sh. Harbans Singh, W/o Sh. Sumer Singh
R/o RZ-4, Nangloi Sayed,
New Delhi.
3. Sh. Manoj Kumar S/o Sh. Zile Singh
R/o Village & PO Nangloi,
Sayed, New Delhi.
4. Sh. Arun Kumar Dawar, S/o Late Sh. M.L. Dawar
R/o E-105, Mansarowar Garden,
New Delhi.
5. Smt. Usha Dawar, W/o Sh. Arun Kumar Dawar
R/o E-105, Mansarowar Garden,
New Delhi. Defendants
ORDER :-
1. Vide this order, I shall dispose off an application u/o 6 Rule 16 CPC dated 08.12.2009 moved on behalf of defendant no. 4 and 5 for striking off the amended plaint filed by the plaintiff, as the same is beyond the scope of amendment which was permitted by the Suit no. 104/10 Page no. 74/64 Hon'ble High Court.
2. The facts in brief, relevant for the disposal of the instant application are that the plaintiff had filed a suit for permanent injunction bearing suit no. 3/1997 before the Court of District Judge, Delhi, which was eventually, on an application being moved by the plaintiff, amended to a suit for permanent injunction, declaration and possession of the suit property bearing no. B-10/342, Sunder Vihar, New Delhi. The plaintiff had also filed a similar suit in the Hon'ble High Court bearing CS No. 703/1997 seeking permanent injunction initially against the defendant no. 1 and during the pendency of the proceedings, defendant no. 2 to 5 were also arrayed as defendants. The suit bearing no. 3/1997 was dismissed by the court of Ld. ADJ on the ground that since the Hon'ble High Court was already seized of the matter in dispute (the instant case) and where the valuation of the suit property had been fixed as much higher than it was so done before the Court of District Judge, it was opined by the Ld. ADJ vide order dated 01.03.1999 that the suit before the Ld. ADJ could not be proceeded with and was therefore dismissed.
3. Eventually, the instant suit proceeded and an application for amendment was moved by the plaintiff for amending the instant suit to that for a suit for possession, as the property had changed hands and was eventually the possession of suit property rested with defendant no. 4 and 5. The said amendment application was dismissed by Ld. Predecessor of this court vide order dated 26.02.2004 on the ground that a similar application for amendment of plaint was dismissed in the earlier suit bearing no. 3/1997. The said order dated 26.02.2004 was challenged before the Hon'ble High Court in CM (M) No. 372/04, which was allowed by the Hon'ble High Court vide order dated 25.05.2005, vide which the order dated 26.02.2004 was set-aside.
4. Vide the instant application, it is submitted by the defendants that the amendments that has been made has no relation to any subsequent events, which were sought to be incorporated in the suit. Moreover, in the garb of the order of the Hon'ble High Court, the plaintiff has incorporated various other amendments surruptiously, adding para no. 6 A to 6 V in the amended plaint. It was prayed that the amended plaint be struck off. Suit no. 104/10 Page no. 75/64
5. No formal reply to the said application was filed by the plaintiff.
6. I have heard Sh. Vijay Kumar Gupta, counsel for the defendant no. 4 and 5 and Sh. Rajesh Harnal, counsel for plaintiff, perused the record and have considered the rival contentions of the parties.
7. The scope of Order 6 Rule 16 CPC is very clear and for ready reference is reproduced as under :
"16. Striking out pleadings.- The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading -
(a) which may be unnecessary, scandalous, frivolous or vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or
(c) which is otherwise an abuse of the process of the Court."
8. From the perusal of the record as well as the amended plaint and for that matter the initial plaint, there was nothing apparent on the record, which would reveal that any of the pleadings were unnecessary, scandalous, frivolous, or vexatious or which amounted to an abuse of process of law. The application for amendment which was moved before the Hon'ble High Court is very clear and it contains all the amendments which have been incorporated in the amended plaint vide para no. 6 A to 6 V. The application which was moved before the Ld. Predecessor of this court Sh. H.S. Sharma, included the assertions made in para no. 6 A to 6V incorporating all the subsequent events but the said application was dismissed on the ground that the amendment was not allowed in the earlier suit bearing no. 3/1997. This order was set-aside in toto by the Hon'ble High Court, vide order dated 25.05.2005. The pleadings in the amendment application before the Hon'ble High Court were very clear and if, in the speaking order it was only the mentioning of defendant no. 4 and 5, which saw the light of day, it could not be construed that the amendment of the suit and incorporation of the relief of possession, so sought and allowed was only qua defendant no. 4 and 5. This would be an absolutely erroneous interpretation and construction of the order of Suit no. 104/10 Page no. 76/64 the Hon'ble High Court, which in itself is explicit and without any ambiguity. The application for amendment which was moved before the Hon'ble High Court, has been allowed and it contains all the assertions which have been incorporated in the amended plaint. Amended plaint suffers from no infirmity and accordingly, I find no merit in the application.
9. In view of my discussion above, the instant application u/o 6 Rule 16 CPC dated 08.12.2009 moved on behalf of defendant no. 4 and 5, is dismissed. No orders as to costs.
Announced in open Court today (SEEMA MAINI)
i.e on 28.11.2011 ADJ-03 (North)Delhi
Suit no. 104/10 Page no. 77/64