Delhi District Court
Madhulata Arya vs Bindu Prajapati And Ors on 29 April, 2024
IN THE COURT OF MS. SHILPI M JAIN : DISTRICT JUDGE-05,
SOUTH WEST DISTRICT, DWARKA
COURTS, NEW DELHI
CS No. 555/17
CNR No. DLSW01-006431-2017
IN THE MATTER OF:
Ms. Madhulata Arya,
W/o late Sh. Anil Kumar Arya
R/o H. No. 1353, R.K. Puram,
New Delhi. ... Plaintiff
Versus
1. Smt. Bindu Prajapati
W/o Sh. B.L. Prajapati
Flat No. 396, Gali No. 15,
DDA Flats, Madangir,
New Delhi-110062.
Also at :
Flat No. L-129, Sector-4,
Pushp Vihar,
New Delhi-110017.
Also at :
Sigma 4 Sector,
H. No. 1, Greater Noida,
U.P.
2. Mrs. Neelam Sharma
W/o Sh. Bhim Singh
R/o RZ-F-99/11,
Gali No. 41A,
Sadh Nagar, Part-II,
Palam Colony,
CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 1 of 36
New Delhi-110049. ....Defendants
Date of Institution : 06.06.2017
Date of Arguments : 20.03.2024
Date of Judgment : 29.04.2024
SUIT FOR DECLARATION, POSSESSION, MANDATORY &
PERMANENT INJUNCTION
JUDGMENT
INDEX FACTUAL BACKGROUND : Page No. 02 ISSUES : Page No. 08 EVIDENCE GIVEN BY PARTIES : Page No. 09 SUBMISSIONS OF THE PARTIES : Page No. 12 ISSUEWISE ANALYSIS : Page No. 15 CONCLUSION : Page No. 36
1. The present suit is filed for Decree for 'Declaration, Possession, Mandatory and Permanent Injunction' declaring the plaintiff as the rightful owner qua flat No. S II of the property bearing No. RZF-99/11, Gali No. 41A, Sadh Nagar Part-II, Palam Colony, New Delhi along with one car parking (hereinafter referred as 'suit property').
FACTUAL BACKGROUND :
2. Case of the plaintiff in brief is that, defendant no.1 & 2 entered into an agreement on 09.08.2010 for development of property bearing RZ-F- 99/11, Gali No.41A, Sadh Nagar Part-II, Palam Colony, New Delhi-110045. That defendant No. 2 is owner of the entire property and defendant No.1 is a developer/contractor for construction of the lower/stilt floor, upper ground CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 2 of 36 floor, first floor, second floor and third floor on the said land on the agreed terms as detailed in agreement dated 09.08.2010.
3. It is averred that, in terms of agreement dated 09.08.2010, defendant No.1 agreed to construct the property at the expense of first party within 10 months without any problem with MCD/DDA or any other government authorities from the taking over possession. It is further averred that, defendant no.1 & 2 agreed to construct 8 flats each ad-measuring 77.25 sq. yds. It is further averred that the defendant No.1 & 2 agreed that the five flats bearing number UI, FI, SI, TI & TII will be in possession of the defendant No.2 and flat in UII, FI & SII will be possession of defendant No.1 along with 3 reserve car parking and the defendant no. 1 will be absolute owner of three flats and car parking.
4. It is further averred that, the entire five flats bearing U-1, F-1, S- 1, T-1, T-2 out of the total eight flats were agreed to be in possession of defendant No.2 and three flats bearing No. U-II, F-II and S-II in front of Gali No.41A out of total eight flats without roof rights along with three reserve car parking at the ground floor were agreed to be in possession of defendant No.1. It is further averred that, both parties have agreed that on completion of the building, the defendant No.1 and 2 will be free to deal with their respective portions in any manner including sale, transfer and mortgage etc. That the entrance stair rights, passage etc. of the building was agreed to be common for all floors. It is further averred that on completion of the building the defendant No.1 became absolute owner and declared himself to be in absolute possession of free hold built-up private flats No. S-II, with one car park second floor without roof rights area ad-measuring 73.25 sq. yds. out of total land measuring 146.5 sq. yds. being part of property RZ-F-199/11 Plot CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 3 of 36 No.66, out of Khasra No.479 situated in the area and village Nasirpur, Colony Known as Sat Nagar, Part-II, Palam, Delhi.
5. It is further averred that, defendant no.1 being absolute owner sold the Flat No. S-II along with reserve parking to the plaintiff and the sale deed between plaintiff and defendant no. 1 was executed and registered under Registration No.1879 in Book-I, Volume No.6017, on page 99 to 106 on 23.07.2011.
6. It is further averred that, the defendant No.1 declared that he conveyed transferred and assigned the property under sale with all her rights, titles, interest options, past, passages wages, easements, appurtenances and privileges to the plaintiff vide above sale deed. The defendant No.1 declared that he has delivered actual physical and vacant possession of the aforesaid property to the plaintiff. The defendant No.1 accompanied the plaintiff for handing over the possession and being the builder requested for the keys to carry on some incomplete job relating to electricity and sanitary work. The defendant No.1 assured the plaintiff that the property under sale is free from all sort of encumbrances such as sale, agreement to sell, equitable mortgage, gifts, lease, lien, decree notification, acquisition, attachments, litigation, legal flaws, notices, charges, stay order, court injunction, burden and family disputes.
7. It is further averred that plaintiff could get the property mutated/ transferred in her own name by presenting the sale deed and the certified copy in MCD/Delhi Jal Board, Electricity and other records. It is further averred that, entire consideration has been paid by the plaintiff to the defendant no.1 and the receipt of the same has been acknowledged by the defendant no.1. That the defendants have no right to restrain or not to allow CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 4 of 36 the plaintiff to occupy her legally owned flat No. S-II & car park possession of which is legally with the plaintiff.
8. It is further averred that, the defendants have illegally stopped the plaintiff from entering her flat. That the plaintiff had issued legal notice dated 02.02.2014 to the defendants to hand over the peaceful possession of the flat and car parking, defendants failed to do so. Hence, plaintiffs filed the present suit.
9. The summons of the suit were issued to the defendants and same were duly served. Defendants No. 1 and 2 filed their respective written statements. It is stated on behalf of the defendant No. 1 that suit of the plaintiff is liable to be dismissed as barred by provision under order II Rule 2 of CPC as the plaintiff earlier had filed a suit bearing No. 58 of 2014 titled as "Ms. Madhulata Arya Vs. Smt. Bindu Prajapati & Ors." on basis of same cause of action. The said suit has already been dismissed vide order/judgment dated 03.04.2017.
10. It is further averred that, the present suit is liable to be dismissed U/o I Rule 10 (2) CPC as defendant No. 1 had already been handed over the physical vacant peaceful possession of property to the plaintiff on 22.07.2011.
11. It is averred that, the present suit is liable to be dismissed as plaintiff has no cause of action to file the present suit against the defendant no.1, the cause of action stated in the suit is fabricated cause of action qua defendant no.1 with sole motive to falsely implicate the defendant no. 1 in collusion with defendant no. 2, it is worth to mention herein that the defendant no.1 have handed over the physical vacant peaceful possession of CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 5 of 36 property in question to the plaintiff on 22.07.2011 in presence of witnesses in the sale deed.
12. It is further averred that, the suit of the plaintiff is liable to be dismissed u/o VII rule 11 CPC against the defendant no. 1 as there is no cause of action made out against the defendant no. 1. Defendant no. 1 as per Agreement dated 09.08.2010 entered with defendant no. 2 got three flats i.e Flat No. U-II, S-II and F-II, the defendant no. 1 have sold the Flat No. U-II to Parmod Kumar Gupta S/o Shankar Lal and Raghubir Singh S/o Raja Ram by way of registered sale deed dated 18.07.2011, who is possession of their flat, the Flat No. S-II was sold to plaintiff by way of sale deed dated 22.07.2011, same is registered with Sub Registrar-IX, New Delhi and on the same day the plaintiff had taken Physical possession of her Flat in presence of Babu Lal Prajapati and Neeraj Nath. The Flat No. F-II, have been sold by defendant no. 1 to one Rekha Jain W/o Pradeep Jain on 07.03.2011 by way of registered sale deed no. 2546, Book No.1, Vol. No. 5807, page no. 94 to 101 on 10.03.2011, who had on the same day, taken possession over the said Flat and later said Rekha Jain sold said Flat to One Sh. Raj Kumar Bharti by way of registered sale deed dated 24.11.2011 and same was registered under registration no. 14194 in Book No.1, Vol. No. 6241 on page no. 192-199 on 16.12.2011 and the peaceful vacant possession of said flat was handed over to the said Raj Kumar Bharti by the Rekha Jain on same day i.e. 24.11.2011. Defendant no.1 after completion of building much before completion time as per agreement dated 09.08.2010 handed over peaceful vacant possession of flats nos. U-1, F-1, S-1, T-1 and T-2 to defendant no. 2 in the month of February 2011, same was confirmed by her by way of Possession Letter dated 21.02.2011 executed by defendant no. 2 in presence of one J.B. Gautam and Babu Lal Prajapati and Affidavit dated 21.02.2011 executed by defendant no.2. Defendant no. 2, further confirms that 3 security cheques of defendant CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 6 of 36 no. 1 have been misplaced by her and she will not misuse said cheques and will return upon trace out the same. Defendant no.1 have after completion of building handed all five flats, Car Parking and Shops to defendant no. 2 and her flats sold by her to respective buyers.
13. In her WS, Defendant No. 2 stated that, she had executed the sale deed of the suit property in favour of defendant No. 1 who has further sold out the suit property to the plaintiff by way of registered sale deed on the basis of sale deed dated 06.09.2010.
14. It is further averred on behalf of defendant No. 2 that, defendant No. 1 and her husband after commencing primary construction work abandoned the same without informing defendant No. 2. The defendant No. 2 waited till October, 2011 hoping that defendant No. 1 shall resume her construction work as early as possible but the defendant No. 1 did not turn up till first week of November, 2011, therefore defendant No. 2 was constrained to serve legal notice dated 03.11.2011 upon defendant No. 1.
15. It is further averred that, there was a contract between the defendant no. 1 and defendant no. 2 wherein it was agreed upon between both the parties that the defendant no. 1 shall complete the entire building i.e. 8 Flats, shops etc. as per the map and time schedule written in the agreement dated 09.08.2010, if the defendant no. 1 shall not complete the building in time and according to map the defendant no. 2 will have full right to cancel the sale deeds which were executed by the defendant no. 2 in compliance of the agreement dated 09.08.2010. The sale deed dated 06.09.2010 executed by the defendant no.2 in favour of defendant no.1 is not a novation of earlier agreement dated 09.08.2010.
CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 7 of 36
16. Replication to the amended written statement of defendants was filed on behalf of the plaintiff, thereby, reiterating and reaffirming the contents of the plaint.
ISSUES
17. On the basis of pleadings of parties, the issues were framed vide order dated 09.08.2017 and after framing two additional issues, the issues were re-numbered and re-structured on 15.11.2017, the following issues are re-structured and re-framed as under :
1. Whether the suit is barred by provisions of Order 2 Rule 2 CPC?
OPD1&2
2. Whether the suit is bad for misjoinder of defendant no.1 and there is no cause of action against him? OPD1
3. Whether the sale deed executed by defendant no.2 in favour of defendant no.1 was only for the purpose of security? OPD2
4. Whether the suit is undervalued for the purpose of jurisdiction and court fees? OPD2
5. Whether defendant no.1 was incompetent to execute the sale deed dated 22/23.07.2011 in favour of the plaintiff? OPD-2
6. Whether the plaintiff is entitled to a decree declaring the judgment and decree dated 11.08.2014 passed by Sh. Vinod Yadav, DJ, SW District, Dwarka, New Delhi in suit no.1615/13 titled as Mrs. Neelam Sharma vs. Mrs. Bindu Parjapati, declaring to be null and void having been obtained by playing fraud? OPP"
7. Whether defendant no.1 was the absolute owner of with one car park built up flat no. F-II second floor without roof rights area ad- measuring 73.25 sq. yds. out of total land measuring 146.5 sq. yds. being part of property no. RZ-F- 199/11 Plot no.66, out of Khasra CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 8 of 36 no.479 situated in area and village Nazirpur, Colony known as Sat Nagar Part II Palam? OPD-1
8. Whether the plaintiff is entitled to decree of possession in respect of suit property? OPP
9. Whether the plaintiff is entitled to decree of permanent and mandatory injunction? OPP
10. Relief.
EVIDENCE GIVEN BY PARTIES
18. In support of his case, plaintiff examined total five witnesses in all as follows:
PWS DOCUMENTS RELIED EXHIBITS
UPON
PW-1: Ms. Aadhar card Ex. PW1/1 (OSR)
Madhulata Arya
Copy of agreement dated Ex. PW1/2 running into
09.08.2010 9 pages (being admitted
document)
Copy of sale deed dated Ex.PW1/3 (OSR)
22/23.07.2011 running into 11 pages
Complaint to SHO PS Palam Ex. PW1/4 (colly) 2
Gaon dated 09.12.2012 documents now de-
exhibited and marked
as Mark A (colly)
Complaint to Dy. Ex. PW1/4 (OSR)
Commissioner, MCD dated (colly)
12.12.2012 (running into 1
page) and 21.11.2012
(running into 2 pages)
Legal notice dated 02.02.2014 Ex. PW1/5 running into 4 pages (being admitted by defendant No.2) Certified copy of judgment Ex. PW1/6 running into and decree dated 03.04.2017 12 pages.
PW-2: Ms. Anita Document already Ex. PW1/4 N.A.
W/o Sh. Raj
CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 9 of 36
Kumar
PW-3: ASI DD No. 37B dated PW3/2 (OSR)
Prahlad Singh, 25.05.2012
154, PS Palam
Village, Delhi
PW-4: Ms. Civil Suit bearing no. Ex. PW4/1 (OSR)
Geetanjali Malik, 1615/2013 titled as Mrs. (Colly)
JJA, Record Neelam Sharma vs. Mrs.
Rom (Sessions) Bindu Prajapati decided by
Dwarka Courts, Sh. Vinod Yadav, the then Ld.
New Delhi ADJ-01, Dwarka Court, New
Delhi.
PW-5: Sh. Raj Status report in respect of the Ex. PW5/1 (Colly)
Singh, LDC, premises No. RZF-99/11, Gali (OSR).
Building No. 41A, Sadh Nagar, Palam,
Department, New Delhi, which is signed
Najafgarh Zone, by the Asst. Engineer
New Delhi (Building-IV), Najafgarh
Zone.
19. Thereafter, plaintiff closed its evidence and the matter listed for defendant's evidence.
20. In support of its case, no evidence has been led on behalf of the defendant No.1. Defendant No. 2 examined total four witnesses in all. tendered her evidence by way of affidavit Ex. D2W3/A and has relied upon following documents:-
DWS DOCUMENTS RELIED EXHIBITS
UPON
D2W3: Mrs. Already Ex. PW1/2 NA
Neelam Sharma
Certified copies of the sale Ex. D2W3/1 (colly)
deeds dated 06.09.2010
Copy of courier receipt Ex. D2W3/2
Copy of agreement dated Ex. D2W3/3
CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 10 of 36
30.01.2012 executed between
the deponent and Singh &
Associates
Copy of Receipt of payment Ex. D2W3/4
(objected to by counsel
for the plaintiff subject
to mode and manner of
the said document)
Copy of the certified copy of Ex. D2W3/5 (OSR)
judgment and decree dated
11.08.2014
Copy of Notice dated Mark-A
03.11.2011
D2W4: Sh. Documents already Ex. N.A.
Bhim Singh s/o D2W3/1 (colly) to
late Sh. R.N. Ex.D2W3/6
Sharma
21. D2W2 Sh. Tej Pal Singh S/o late Sh. Shyam Singh was examined as a summoned witness and he deposed that he know defendant No. 2 and her husband Sh. Bhim Singh, who were his neighbours. Neelam Sharma is the owner of house No. 99/11, Gali No. 41A, Sadh Nagar, Palam Colony, New Delhi. She had started construction of the aforesaid house in month of Oct.-Nov. 2010 through some builder Prajapti. Prajapti constructed the aforesaid house upto first floor lenter till the month of Jan-Feb.,2011. Thereafter, MCD had sealed the aforesaid house. It remained sealed for about one year. After seal of the aforesaid house, Prajapati did not turn up for the construction. Thereafter, Neelam Sharma had completed the aforesaid house through another builder. D2W2 was cross-examined at length on behalf of the plaintiff.
22. D2W1 Sh. Rajesh Kumar s/o Sh. Karan Singh was also examined as summoned witness. He deposed that he know defendant no.2 and her husband Sh. Bhim Singh, who are his neighbours. Neelam Sharma is CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 11 of 36 the owner of house no.99/11, Gali no.41 A, Sadh Nagar, Palam colony, New Delhi. She had started constructed the aforesaid house in 2010 through some builder Prajapati. Prajapti constructed the aforesaid house upto two lenters till the month of Jan-Feb.2011. Thereafter MCD had sealed the aforesaid house. It remained sealed for about one year. After seal of the aforesaid house, Prajapati did not turn up for the construction. Thereafter Neelam Sharma had completed the aforesaid house through another builder.
23. Thereafter, defendant's evidence closed on behalf of defendant No. 2 and the matter listed for final arguments.
SUBMISSIONS OF THE PARTIES
24. Ld. Counsel for plaintiff submitted that, plaintiff is bonafide purchaser of the suit property, who has purchased the same from defendant no. 1. It is further submitted that before filing the present suit, another suit bearing no. 58/2014 filed for relief of Mandatory and Permanent Injunction against the defendants but, in said proceedings defendants never mentioned about the pendency of interse dispute between them. It is further submitted that, due to technicalities, the said suit was dismissed and present suit is filed. It is further submitted that, there is malafide and interse collusion between both defendants, wherein defendant no. 2 first executed sale deed in favour of defendant no. 1 thereby concealing about the alleged Collaboration agreement and thereafter defendant no. 1 executed registered sale deed in favor of the plaintiff. It is further submitted that, despite having knowledge of this fact, defendant no. 2 intentionally did not make party to plaintiff in suit for cancellation of sale deed executed by defendant no. 2 in favour of defendant no. 1.
CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 12 of 36
25. It is further stated that, defendant no. 2 obtained relief of declaration in suit bearing no. 1615/2013 by concealment of material facts and playing fraud upon the Court. It is also submitted that, sale deed executed by defendant no.1 in favour of the plaintiff is an absolute and independent sale deed and any agreement prior to that have no effect as its amounts to Novation of agreement once there is no mentioning of any earlier agreement which can be treated as pre-condition of sale deed. It is also submitted that right of the plaintiff breached under Section 43 of TPA. Ld. Counsel for the plaintiff relied upon the following judgments:
a) S P Chengalvarya Naidu Vs. Jagnath; (1994) 1 SCC-1 :
1993(4) Scale-277.
b) A V Papayya Sastry Vs. State of AP; (2007) 4 SCC 221 (21-
31)
c) Satluj Jal Vidyut Nigam Vs. Raj Kumar Rajinder Singh; (2019) 14 SCC 449 (para 68-75)
d) Smriti Madan Kansagra Vs. Perry Kansagra; AIR 2021 SC 5423
e) Biswmath Prasad Singh Vs. Rajendra Prasad & Anr; AIR 2006 SC 2965 (para 12, 15)
f) Bellachi Vs. Pakeeran; AIR 2009 SC 3293 (para 15 & 16)
g) Ram Kumar Vs. State of UP : AIR 2002 SC 4705 (para 8)
26. Per contra, defendants denied the claim made by the plaintiff. It is submitted that sale deed executed in favour of the defendant no. 1 by defendant no. 2 is conditional in nature and since defendant no. 1 violated the condition mentioned in the collaboration agreement, said sale deed never came into force. It is also submitted that suit property was not existence at the time of execution of sale deed. Hence, title can not be transferred either in favour of defendant no. 1 or in favour of plaintiff. It is also submitted that plaintiff claims suit property as 2 BHK flat but it is 3 BHK flat in actual which proved that plaintiff has neither in knowledge about the existence of suit property at the time of execution of sale deed nor made in to inquire CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 13 of 36 about the same. It is also submitted that since, there is no right, title or interest in favour of defendant no.1, same can not be transferred in favour of the plaintiff. It is also submitted that, in December, 2010, MCD sent notice for sealing due to unauthorized construction and on 28.01.2011, property was actually sealed.
27. Ld. Counsel for defendant no. 2 strongly relied upon the status report filed by MCD i.e. as follows :
"That as per record available in Building Deptt., Najafgarh Zone, it is submitted that the unauthorized construction of columns and shuttering at GF at Premises No.RZ-F-99/11, Gali No.41-A, Sadh Nagar, New Delhi stands booked under section. 344(1) and 343 of the DMC Act, vide U.C. File t No.449/B/UC/NG/10 dated 13/12/2010 and accordingly the show cause notice was issued to Owner/Builder Sh. Bheem Singh Sharma. The demolition order was passed on 28/12/2010.
That as per record, the partial demolition action against the unauthorized construction at suit property was taken by the staff of Building Deptt., Najafgarh Zone on 28/2/2011 and the property has also been sealed on the same day i.e. 28/2/2011 under section 345-A of the DMC Act, vide Sealing File No.EE(B)/NGZ/11/UC/SCN/D-260 dated 6/1/2011."
28. It is also submitted that, sale deed does not bear any legal value as property was never in existence. Ld. Counsel for the defendants relied upon the following judgments in support of his contention :-
a) Jugalkishore Saraf Vs. M/s. Raw Cotton Co. Ltd. AIR 1955 SC 376
b) C.C. Revenue Authority Vs. Sudarsanam Picture ; AIR 1968 Madras 319 CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 14 of 36
c) L.I.C. of India Vs. Janaki Ammal ; AIR 1968 Madras 324
29. In rebuttal, Ld. Counsel for the plaintiff submits that onus of proving the fact that whether the suit property was in existence or not was on the defendant no. 2 and since defendant no. 2 fails to discharge the said onus, his objection can not be taken on record. Secondly, it is submitted that at the time of execution of sale deed, possession was handed over to the plaintiff but, defendants took the keys of the suit property on pretext that there are certain work is pending for fitments but, same was never returned to the plaintiff.
30. It is also submitted that, at the time of purchase, suit property was considering only 2 BHK and since Keys were taken back by the defendants they may have altered the wall of suit premises for converting it form 2 BHK to 3 BHK. It is further averred that, even as per the status report violation date is mentioned as 13.12.2010 and while defendant no. 2 executed sale deed in favour of defendant no. 1 on 06.09.2010 while defendant no. 1 executed sale deed in favour of plaintiff on 23.07.2011. Lastly, it is submitted that, execution of sale deed in favour of the plaintiff was well in the knowledge of defendant no.2 and defendants in connivance of each other, cheated the plaintiff, hence decree may be passed against them.
31. Submissions heard. Record perused.
ISSUE WISE ANALYSIS:
32. ISSUE NO. 1: Whether the suit is barred by provisions of Order 2 Rule 2 CPC? OPD1&2 CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 15 of 36 Order II Rule 2 CPC1 contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the plaintiff so acts, Order II Rule 2 of CPC makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished.
In Gurbux Singh v. Bhooralal2, constitutional bench of Hon'ble Supreme Court of India held as follows:
"In order that a plea of a bar under O. 2. r. 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based, (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar."
1 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.
(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.
Explanation-For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. 2 AIR 1964 SC 1810 CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 16 of 36
33. The cardinal requirement for application of the provisions contained in Order II Rule 2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit. It is defence of the defendants that, suit for Mandatory and Permanent injunction filed by the plaintiff vide CS No. 58/14 before the court of ACJ/SW/Dwarka Courts but, same was dismissed.
34. However, this court carefully gone through the order dated 03.04.2017 in CS No. 58/14 wherein Ld. Trial Court dismissed the said suit in form of rejection being not maintainable. Relevant portion of said order is reproduced herein below :-
' Heard. Record perused. In the present case, indisputedly the defendant no.1 executed the sale deed of the impugned flat in favour of the plaintiff. It is also not in dispute that the defendant no.1 has entered into an agreement dated 09.08.2010 with the defendant no.2 vide which the defendant no.1 was bound to construct the suit property within 10 months. As per the said agreement, the defendant no.2 had the full right to cancel the sale deeds (which were executed by the defendant no.2 in favour of defendant no.1), in case the defendant no.1 did not complete the building as per the agreement. In the present case, the defendant no.1 has stated to have not complied with the agreement and further he has executed the sale deed in favour of different persons. The plaintiff has no where alleged that the plaintiff took actual physical possession of the impugned flat at any point of time. The plaintiff has also admitted the fact that the possession was not being allowed to be taken by the defendant no.2. Thus, it can be safely concluded that the plaintiff is not in physical possession of the impugned flat and thus, the appropriate remedy for the plaintiff was to file a suit for possession and injunction. The Specific Relief Act, 1963 in Section 41 provides the cases in which the injunction can not be granted. The sub clause (h) of the said section provides that the injunction can not be granted when equally efficacious remedy can certainly be CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 17 of 36 obtained by any other usual mode of proceeding except in case of breach of trust. In the present case the equally efficacious remedy was to sue for the relief of possession and not for injunction simplicity.'
35. While in present suit, the plaintiff is seeking relief of Declaration, Possession, Mandatory and Permanent Injunction. It is well settled law that, the rejection of the plaint on any of the grounds under Order VII Rule 11 CPC shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. 3 Hence, in the considered opinion of this court that, institution of present suit is not barred by provision of order II rule 2 CPC. Hence, this issue decided in favour of the plaintiff and against the defendants.
36. ISSUE NO. 2 : Whether the suit is bad for misjoinder of defendant no.1 and there is no cause of action against him? OPD1 It is well settled law that, no suit shall be defeated by reason of misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.4
37. Hon'ble Supreme Court of India in the matter of Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and Others5 held as follows:
"8. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the 3 Order VII Rule 13 CPC 4 Order I Rule 9 CPC 5 (2010) 7 SCC 417 CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 18 of 36 wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:
Court may strike out or add parties. (2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
38. In present matter, plaintiff claimed to have purchase suit property vide registered sale deed i.e. Exh. PW1/3 from defendant No. 1 who purchased the same from erstwhile owner i.e. defendant No. 2. In fact, as per Exh. PW1/3, plaintiff undisputedly paid Rs. 7,15,000/- towards sales consideration to defendant No. 1. While, in his WS defendant No. 1 stated as follows:
'5. That, the suit of the plaintiff is liable to be dismissed u/o 7 rule 11 CPC against the answering defendant no. 1 as there is no cause of action made out against the answering defendant no. 1, the defendant no. 1 as per Agreement dated 09.08.2010 entered with defendant no. 2 got three flats i.e Flat No. U-II, S-II and F-II, the answering defendant no. 1 have sold the Flat No. U-II to Parmod Kumar Gupta S/o Shankar Lal and Raghubir Singh S/o Raja Ram by way of registered sale deed dated 18.07.2011, who is possession of their flat, the Flat No. S- II was sold to plaintiff by way of sale deed dated 22.07.2011, same is registered with Sub Registrar-IX, New Delhi and on the same day the plaintiff had taken Physical possession of her Flat in presence of Babu Lal Prajapati and Neeraj Nath. The Flat No. F-II, have been sold by defendant no. 1 to one Rekha Jain W/o Pradeep Jain on 07.03.2011 by way of registered sale deed no.
CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 19 of 36 2546, Book No.1, Vol. No. 5807, page no. 94 to 101 on 10.03.2011, who had on the same day, taken possession over the said Flat and later said Rekha Jain sold said Flat to One Sh. Raj Kumar Bharti by way of registered sale deed dated 24.11.2011 and same was registered under registration no. 14194 in Book No.1, Vol. No. 6241 on page no. 192-199 on 16.12.2011 and the peaceful vacant possession of said flat was handed over to the said Raj Kumar Bharti by the Rekha Jain on same day i.e. 24.11.2011. further the defendant no.1 after completion of building much before completion time as per agreement dated 09.08.2010 handed over peaceful vacant possession of flats nos. U-1,F-1,S-1,T-1 and T-2 to defendant no. 2 in the month of February 2011, same was confirmed by her by way of Possession Letter dated 21.02.2011 executed by defendant no. 2 in presence of one J.B. Gautam and Babu Lal Prajapati and Affidavit dated 21.02.2011 executed by defendant no.2. in said affidavit, the defendant no. 2, further confirms that 3 security cheques of defendant no. 1 have been misplaced by her and she will not misuse said cheques and will return upon trace out the same, The answering defendant no.1 have after completion of building handed all five flat, Car Parking and Shops to defendant no. 2 and her flats sold by her to respective buyers as above.'
39. Since, defendant No. 1 admittedly executed sale documents in favour of plaintiff, present suit can't be held bad for misjoinder of the necessary and proper parties, as impleadment of defendant no. 1 was necessary for proper adjudication of dispute between the parties. Hence, this issue decided in favour of plaintiff.
40. ISSUE NO. 4 : Whether the suit is undervalued for the purpose of jurisdiction and court fees? OPD2 Onus of this issue was upon the defendant no. 2 but, no evidence or material placed on record by defendant. In her plaint, plaintiff valued the present suit as follows:
CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 20 of 36
29. That for the purpose of court fee and jurisdiction the suit is valued as under:-
a) For the purpose of possession the suit is valued as Rs.8 Lakhs i.e. the market rate of the property as per sale deed 22/23.07.2011 and accordingly the court fee of Rs.10,160/- is affixed;
b) For the purpose of the declaration to the effect of plaintiff is the true and rightful owner of the flat no.S-II, the suit is valued Rs.200/- and accordingly court fee of Rs.20/- has been affixed;
c) For the purpose of declaration of decree and judgment dated 11.08.2014 passed by Shri Vinod Yadav, A.D.J.-01, South West District, Dwarka, New Delhi in Suit bearing No. 1615/13 titled as Mrs Neelam Sharma Vs. Mrs Bindu Prajapati, declared to be null and void being obtained by playing fraud upon the court the suit is valued at Rs.200/- the court fee of Rs.20/- is affixed;
d) For the purpose of permanent and mandatory injunction the suit is valued Rs.130/- and accordingly the court fee of Rs.13/- is affixed; since and hence at advorlarm court fee of Rs.10250/- is already affixed (Rs.10,160/- + Rs.20/- + Rs.20/- + Rs.13/- Rs.10,213/-)".
41. Ordinarily, pecuniary jurisdiction of a court is determined based on the interplay between the provisions of the Court Fees Act and the Suit Valuation Act. Sec. 7 of Court Fees Act provides that, in suit for possession of land, houses and gardens, court fees is to be paid according to the value of subject matter. Moreover, to determine the jurisdiction of the court in which CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 21 of 36 such a suit for possession is to be instituted, Section 8 of the Suit Valuation Act is to be looked into.
42. Section 8 of the Suit Valuation Act provides that Court-fee value and jurisdictional value to be the same in certain suits in following terms:
"Where in suits other than those referred to in the Court- fees Act, 1870 (7 of 1870), section 7, paragraphs V, VI and IX, and paragraph X, clause (d), Court-fees are payable ad valorem under the Court-fees Act, 1870 (7 of 1870), the value as determinable for the computation of Court-fees and the value for purposes of jurisdiction shall be the same."
43. Hence, in the absence of any material contrary to above, this issue is decided against the defendant and in favour of plaintiff.
ISSUE NO. 3. Whether the sale deed executed by defendant no.2 in favour of defendant no.1 was only for the purpose of security? OPD2 ISSUE NO. 5. Whether defendant no.1 was incompetent to execute the sale deed dated 22/23.07.2011 in favour of the plaintiff? OPD-2 (Additional issue) ISSUE NO. 6. Whether the plaintiff is entitled to a decree declaring the judgment and decree dated 11.08.2014 passed by Sh. Vinod Yadav, DJ, SW District, Dwarka, New Delhi in suit no.1615/13 titled as Mrs. Neelam Sharma vs. Mrs. Bindu Parjapati, declaring to be null and void having been obtained by playing fraud? OPP"
ISSUE NO. 7. Whether defendant no.1 was the absolute owner of with one car park built up flat no. F-II second floor without roof rights area ad measuring 73.25 sq. yds. out of total land measuring 146.5 CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 22 of 36 sq. yds. being part of property no. RZ-F- 199/11 Plot no.66, out of Khasra no.479 situated in area and village Nazirpur, Colony known as Sat Nagar Part II Palam? OPD-1
44. Since, above issues are interlinked, all are taken simultaneously.
45. At this juncture, it is imperative to discuss the law on sale of immovable property and declaration/cancellation as follows:
. Section 54 of Transfer of Property Act provides that, "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made.--Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
46. Section 31(1) of the Specific Relief Act, 19636 deals with cancellation of documents. The purpose of cancellation of instruments under the Specific Relief Act of 1963 is to serve justice to the parties who are in a fear of being harmed or are actually being harmed by the other party due to the performance of such instrument/contract. Cancellation of documents/instruments means the nullification of a written document which is proof of a transaction between the parties.
6 31. When cancellation may be ordered.-- (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 23 of 36
47. Section 34, Specific Relief Act7 provides that a suit against any person denying or interested to deny the plaintiffs' title to the legal character or right to any property can be filed. To obtain the relief of declaration the plaintiff must establish that (1) the plaintiff was at the time of the suit entitled to any legal character or any right to any property (ii) the defendant had denied or was interested in denying the character or the title of the plaintiff,
(iii) the declaration asked for was a declaration that the plaintiff was entitled to a legal character or to a right to property (iv) the plaintiff was not in a position to claim a further relief than a bare declaration of his title. It is a discretionary relief.
48. Hon'ble Supreme Court of India in Deccan Paper Mills Co. Ltd. V Regency Mahavir Properties, Civil Appeal No 5147 of 2016 observed that document though not necessary to be set aside may, if left outstanding, be a source of potential mischief. The jurisdiction under section 39 of the Specific Relief Act, 1877 (which is the pari materia provision to section 31 of the 1963 Act) is a protective or a preventive one. It is to prevent a document to remain as a menace and danger to the party against whom under different circumstances it might have operated.
49. Similarly, in Suhrid Singh V Randhir Singh, (2010) 12 SCC 112, Hon'ble Supreme Court held that where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. In Deccan 7 34. Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 24 of 36 Paper Mills Co. Ltd (supra), it was observed that the expression "any person" does not include a third party, but is restricted to a party to the written instrument or any person who can bind such party. It was further observed as under:
"The incongruous result of section 31 of the Specific Relief Act being held to be an in rem provision. When it comes to cancellation of a deed by an executant to the document, such person can approach the Court under section 31, but when it comes to cancellation of a deed by a non-executant, the non- executant must approach the Court under section 34 of the Specific Relief Act, 1963. Cancellation of the very same deed, therefore, by a non-executant would be an action in personam since a suit has to be filed under section 34. However, cancellation of the same deed by an executant of the deed, being under section 31, would somehow convert the suit into a suit being in rem."
50. In his WS, defendant No. 2 duly admitted execution of sale deeds dated 06.09.2010 in favour of defendant No. 1 qua flat No. S-II but, submitted that the said transaction was in the nature of security and has to be read with Collaboration Agreement dated 09.08.2010.
51. This court carefully gone through the Collaboration Agreement dated 09.08.2010 as well as Sale Deed dated 06.09.2010 entered between the defendants and relevant terms are reproduced herein below:-
'AGREEMENT DATED 09.08.2010 That the second party/builder shall construct the above said property within Ten months without any problem by M.C.D./D.D.A and any other govt. authorities from the date of taking over the Vacant possession of the above said property from the first party/owner.
XXXXX CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 25 of 36 That after completion of the building the first party and second party shall be free to deal with their respective portions in any manner they link, including sale, transfer, Mortgage, etc. XXXXXX That the entrance, stair rights, passage etc. of the building shall be common for all floor owners and all occupants.
XXXXX That the second party shall be entitled to sell its share in the property to any other person(s) whosoever at any cost, without any objection from the first party in this regard and similarly the first party shall also be at liberty to deal with their respective portions in any manner they like without any interference of objection from the other party i.e. second party XXXXXXXX That since the second partly is required to spend huge amount in construction, it is made clear that this agreement shall be irrevocable and the first party shall have no right to revoke or cancel this agreement in case the second party performs its part of this agreement within stipulated period in terms of this agreement.
XXXXXXXXX That the Second party/builder have full right to install her water tank, T.V. Antena and other related devices/instruments on top floor/third floor and the first party have no objection for the same.
That before construction of the said building the first party has execute a sale deed in favour of second party in respect of Flat No. U-II, F-II and S-II.
That since the first party has execute a sale deed in favour of second party before construction of the building, it is made clear that the second party shall give the three cheques amounting Rs. 15,00,000/- (Rupees fifteen Lacs Only) each as Security to the first party and the first party CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 26 of 36 will return the same cheques after completion of the building.
That the second party/builder has complete the building as per the MAP and time schedule written above, if the second party/builder has not complete the building in time and according to MAP, the first party have full right to cancelled the above sale deed and the second party have no objection for the same.' SALE DEED DATED 06.09.2010 "AND WHEREAS Vendor for her bonafide needs and legal requirements has agreed to sell Pvt. Flat bearing No.5-11, Second Floor without roof rights, area measuring 73.255q.yds. i.e. 61.25sq.mtrs., out of total land measuring 146.5sq.yds., part of aforesaid free-hold Property No. RZ-F-99/11, Plot No.66, out of Khasra No.479, situated in the area of Village Nasir Pur, colony known as Sadh Nagar Part-II, Gali No.41-A, Palam, New Delhi-110045, with all its fittings. fixtures and installations, with the proportionate share of the land under the said property, site map attached, (hereinafter called the said Property) and the Vendee has also agreed to purchase the same, for a total sum Rs.5,02,500/-
(Rupees Five Lace Two Thousand and of Five Hundred only). The entire consideration amount shall be paid by the Vendee to the Vendor in cash, which the Vendor hereby acknowledges the same to have been received at the time of regn. of this Sale Deed before Sub-Registrar-1X. Kapashera, New Delhi. in full and final settlement and nothing remains due out of the sale price.
NOW THIS SALE DEED WITNESSETH AS UNDER:-
1. That in consideration of the said amount, the Vendor doth hereby sells, conveys, transfers and assigns the aforesaid property under sale with all her rights, interests, options, easements, appurtenances and privileges etc. thereto to the Vendee and the Vendee will hold, enjoy, CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 27 of 36 construct, sell and transfer the said property under sale. in any manner without any hindrance of the others.
2. That the Vendor has delivered the actual, physical and peaceful vacant possession of the aforesaid property under sale to the Vendee and the Vendee has also occupied the same on the spot.
(emphasis given)
52. In the opinion of this Court, plaintiff's case rests on the stipulation contained in the registered sale deed executed by defendant no. 1 in her favour on the basis of sale deed executed by defendant no. 2 in favour of defendant no.1, and any oral submission or evidence is inadmissible under Section 91 and 92 of the Evidence Act. In fact, execution of sale deed in favour of plaintiff by defendant no. 1 remain unchallenged through out the trial. It is contention of the plaintiff that there was interse dispute between the defendant no. 1 and 2, before Hon'ble High Court of Delhi, wherein defendant no. 1 duly disclosed about the execution of sale deed in favour of the plaintiff. Moreover, before filing of present suit, plaintiff has filed another suit filed vide CS No. 58/14 wherein defendant no. 1 was proceeded exparte vide order dated 17.03.2016 but defendant no. 2 did not disclose about pending cancellation proceedings qua sale deed in CS No. 1615/2013. It is further submitted that, by playing fraud defendant No. 2 obtained declaration decree qua sale deed dated 06.09.2010 executed by defendant no. 2 in favour of defendant No. 1 qua suit property as null and void. It is further averred that, defendants were in connivance with each other and by this act rights of the plaintiffs have been seriously prejudiced. Another contention of the plaintiff is that, in sale deed dated 06.09.2010, there is no whisper about earlier agreement dated 09.08.2010 which clearly reveals that defendants were in connivance to deceive the innocent buyers like plaintiff. This court find weight in the submission of plaintiff that, defendant no. 2 was well aware about execution of sale deed in favour of plaintiff much prior to CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 28 of 36 filing of Declaration/cancellation suit in the year 2013 qua registered sale deed dated 06.09.2011 in favour of defendant no. 1. During cross examination D2W3 ie. Defendant No. 2 deposed as follows:
"I do not recollect the date, month and year when the first litigation between me and defendant no.1 commenced. I do not recollect where and which case was first started between me and defendant no.1. I do not recollect whether there was any previous litigation between me and defendant no.1. I do not know whether any litigation was pending between me and defendant no.1 before the Hon'ble High Court. It is wrong to suggest that I am deliberately showing my ignorance to the litigation between me and defendant no.1 in the Hon'ble High Court bearing CS No. 1495/2012.
I came to know that the suit property has been sold by defendant no.1 to plaintiff 1 1/2 years back. I came to know that defendant no.1 has sold the suit property to the plaintiff from the record of the present case. Prior to this, I was not knowing the said fact. No case has been filed by the plaintiff against me prior to the present suit. It is wrong to suggest that I am deposing falsely in this regard and I was aware that the suit property has already been sold by defendant no.1. It is wrong to suggest that I came to know regarding sale of the suit property by defendant no.1 only in the month of February, 2011. It is wrong to suggest that I have executed a possession letter and affidavit in this regard in favour of defendant no.1.
XXXXXXX I do not recollect the date, month and year when it came to my knowledge that the suit property has been further sold by defendant no.1 to third party. It is wrong to suggest that I was aware about the sale of the suit property by defendant no.1 to third party prior to 29.04.2013. I do not recollect whether defendant no.1 had filed a suit against me before the Hon'ble Delhi High Court in May 2012. (At this stage the witness is confronted with the certified copy of written statement in the said suit before the Hon'ble Delhi High Court and asked to identify her signatures on the same) I identify my signatures at point A-1 to A-
33. The certified copy of the said written statement is now marked as Ex. D2W3/P-1 running into 32 pages.
CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 29 of 36 It is wrong to suggest that in the earlier suit filed by me seeking cancellation of sale deed in favour of Bindu Prajapati, I deliberately concealed that the suit property had already been further sold by Bindu Prajapati to third party despite my having knowledge of the same. It is wrong to suggest that I have not deliberately disclosed in the written statement filed by me in the earlier suit instituted by the plaintiff that I have instituted a suit for cancellation of sale deed in favour of Bindu Prajapati.
53. Thus, during cross examination D2W3 duly admitted her signature upon Ex. D2W3/P-1 i.e. Written Statement (with affidavit dated 09.08.2012) filed by Defendant no. 2 in CS(OS) 1495/2012 titled as 'Bindu Prajapati Vs. Neelam Sharma' before Hon'ble High Court of Delhi wherein it was specifically pleaded that:
'Later on the defendant came to know that the plaintiff had already sold all the three flats on the basis of the sale deeds executed by the defendant without performing her contractual obligations. Thereby the plaintiff and her husband have cheated the defendant to the tune of many lacs rupees.
54. On the other hand, D2W4 i.e. husband of defendant no. 2 specifically deposed as follows :-
"I met with Madhu lata Arya and Raj Kumar in the Dwarka court in the year 2014 firstly. I came to know for the first time that defendant no.1 sold two flats to Madhu Lata Arya and Raj Kumar either in the month of July or august, 2014 when I received summons from court. I am aware of the fact that defendant no.1 had sold her flats to someone in year 2012 from the records of a case filed by defendant no.1 against my wife before the Hon'ble Delhi High Courts for the recovery of Rs.23 lakhs. Since after filing the suit before the Hon'ble High Court of Delhi, defendant no.1 had never met me therefore I could not inquire about the fact that to whom she had sold the flats. It is wrong to suggest that I had the prior knowledge about the fact that defendant no.1 had already sold the flats to Madhu Lata Arya and Raj Kumar as they met with me at the building site prior to purchase of flats."
CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 30 of 36
55. As already discussed in preceding paras, Order II Rule 2 CPC mandates that person must include their entire claim related to a specific cause of action in one lawsuit. If the he/she intentionally or unintentionally omits a part of the claim, it is subsequently barred. Vide CS No. 1615/2013 Defendant no. 2 filed suit for declaration and cancellation of sale deed executed in favour of defendant no. 1 without seeking any consequential or specific relief qua sale deed executed by defendant no. 1 in favour of plaintiff despite having knowledge of the same. It is well settled law that, a person is said to have notice of a fact when he actually knows that fact, or when, but for willful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. Plaintiff was also the necessary party to the suit filed by defendant no. 2. Hon'ble Supreme Court of India in the matter of Mumbai International Airport Private Ltd. vs. Regency Convention Centre and Hotels Private Limited and others (2010) 7 SC 417 held that :
'A `necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.'
56. Thus, in consider opinion of this court defendant no. 2 suppressed material fact while taking cancellation decree qua Registered sale deed dated 06.09.2011. In the matter of S.P. Chengalvaraya Naidu (dead) CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 31 of 36 by LRs Vs. Jagannath (dead) by LRs and others (1994) 1 SCC 1, it was held that, non disclosure of the relevant and material documents with a view to obtain on undue advantage would amount to fraud and any judgment or decree obtained by fraud is to be treated as a nullity. In any case, till date defendant no. 2 has not sought any declaratory relief qua sale deed executed in favor of plaintiff.
57. Although general rule is Nemo dat quod non habet i.e. a person can only transfer to other person a right, title or interest in any tangible property which he is possessed of to transfer it for consideration or otherwise. In other words, whatever interest a person is possessed of in any tangible property, he can transfer only that interest to the other person and no other interest, which he himself does not possess in the tangible property.
But, Doctrine of Estoppel is exception to the same. Section 115 of the Indian Evidence Act, 18728 incorporates the meaning of estoppel as when one person either by his act or omission, or by declaration, has made another person believe something to be true and persuaded that person to act upon it, then in no case can he or his representative deny the truth of that thing later in the suit or in the proceedings. In simple words, estoppel means one cannot contradict, deny or declare to be false the previous representation or act done by him.
58. Thus, considering the facts and circumstances of present case, this court is of the considered opinion that defendant no. 2 is barred by doctrine of estoppel.
8 115. Estoppel.--When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
Illustration: A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.
CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 32 of 36
59. Section 41 of the Transfer of Property Act 9 also states that when a person is acting on the express/implied consent of a person who is interested in an immovable property, the person who is acting on such consent is considered to be the ostensible owner of the property. He is in the possession of all the indicia of ownership like the right to possession, title, documents, goodwill etc. He has the power to transfer the property for a consideration to the transferee. The transferee should act in good faith and should believe that the ostensible owner is the actual owner of such property.
60. In present matter, defendant no. 2 firstly, executed registered sale deed dated 06.09.2011 in favour of defendant no. 1 without mentioning of any pre-existed agreement between the parties secondly, filed suit for cancellation qua sale deed dated 06.09.2011 on 30.04.2013 despite knowing the fact the defendant no. 1 already sold the property in favour of third party i.e. plaintiff herein thirdly, failed to prove service of notice dated 03.11.2011 rather admitted in her WS in D2W3/P-1 that, said notice returned unserved as recipient left without address. Thus, plaintiff can be term as bonafide purchaser.
61. It is worthwhile to mention here that, both Sale Deeds not only registered but, also attached with site plan. Another contention of the defendant no. 2 was that, site plan attached to sales deed was of two bedroom set but, in actual it is three bed room set. This court also not find any merit in contention of defendant no. 2 as no material is placed on record.
9 41. Transfer by ostensible owner.--
Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it:
provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.
CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 33 of 36
62. This court carefully gone through the contention/reliance made by defendant no. 2 upon status report qua selling of suit property. As per defendant No.2, possession of the construction site was handed over to defendant No. 1 in November, 2010 and defendant No. 1 continued with construction till February, 2011 but, thereafter property was sealed by MCD till January, 2012. However, this court does not find any merit in the submissions made by defendant no. 2 for two reasons, firstly, status report as relied upon by the defendant No. 2 is for unauthorized construction of columns and shuttering at ground floor at premises No. RZ-F 99/11, Gali No. 41A, Sadh Nagar, New Delhi while present matter of dispute is related to the flat in U-II, F-1 and S-II. Secondly, no details of de-sealing have been placed on record by defendant No. 2. Respective cross-examination of defendant no.
2/D2W3 qua sealing by MCD is reproduced herein below :-
"The possession of the construction site had been handed over to defendant no.1 in the month of Nov. 2010. The defendant no.1 continued with the construction till Feb. 2011 uptil the building was sealed. The said sealing continued in Jan 2012 after getting relief from Dwarka Courts in a case.
(At this stage, witness is shown judicial record and asked to show any such order of desealing was filed by defendant no.2 in the present suit to which witness replies as under:-
'The order of desealing has been called by defendant no.2 from MCD in this regard'.
It is wrong to suggest that there is no record of desealing.
63. In fact, material contradiction is found in the testimony given on behalf of the other DWs. Further, in his deposition D2W3 i.e. defendant no. 2 herein claimed to have completed un-finished were from Mewa Lal but failed to prove any agreement with the same. Relevant cross of D2W3 on this aspect is reproduced herein below :-
CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 34 of 36 "The construction of the suit property was completed by me through Mewa Lal. I do not know the status of said Mewa Lal in Singh and Associates. Vol: he worked with me as a contractor. I cannot identify the signature of Mewa Lal. I do not remember whether any agreement in writing was executed between me and Mewa Lal for completion of unfinished work in the suit property. I have paid Rs.40-45 lakhs in cash to Mewa Lal for completion of unfinished work in the suit property. The said amount was given to Mewa Lal in around one year. The said unfinished work in the suit property was completed in around one year."
64. Although, Exhb. D2W3/2 mentioned about unfinished work i.e. marble flooring, sanitary, wooden, electric work etc. But, defendant no. 2 failed to provide any specification of unfinished work as claimed to be left by the defendant no. 1. This court unable to agree with the submission made by the defendant no. 2 that, property was not in existence at the time of execution of sale deed mainly for two grounds firstly, defendant no. 2 herself executed sale deed dated 06.09.2011 in favour of defendant no. 1 with property description and site plan thereby duly acknowledged the existence of suit property. Secondly, Ex. D2/W3/3 no where mention about non existence of suit property rather consists details of unfinished work. In any case, defendant no. 2 failed to prove this document during his cross-
examination. Hence, issues no. 3, 5, 6 and 7 are decided against the defendants and in favor of the plaintiff.
ISSUE NO. 8 : Whether the plaintiff is entitled to decree of possession in respect of suit property? OPP ISSUE NO. 9 : Whether the plaintiff is entitled to decree of permanent and mandatory injunction? OPP
65. In view of forgoing discussions, issue no. 8 and 9 are also decided in favour of the plaintiff and against the defendants.
CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 35 of 36 CONCLUSION ISSUE NO. 10. Relief.
66. In view of above facts and circumstances, judgment and decree dated 11.08.2014 passed by Sh. Vinod Yadav, DJ, SW District, Dwarka, New Delhi in suit no.1615/13 titled as Mrs. Neelam Sharma vs. Mrs. Bindu Parjapati, declared null and void and not binding upon plaintiff. Plaintiff is held entitled to the decree of Possession, Permanent Injunction and Mandatory Injunction in respect of the suit property i.e. Flat No. S-II in RZ- F-99/11, Gali No.41A, Sadh Nagar Part-II, Palam Colony, New Delhi- 110045. Defendants are directed to hand over the peaceful and vacant possession to the plaintiff with respect to the flat no. S-II along with car parking at the suit property.
67. No order as to cost.
68. Decree sheet be prepared accordingly and file be consigned to Records after due compliance.
Announced in open court on 29.04.2024.
(SHILPI M JAIN) DISTRICT JUDGE-05 DWARKA COURTS, NEW DELHI CS No. 555/17 Madhulata Arya Vs. Bindu Prajapati and ORS. Page No. 36 of 36